FAMILY COURT OF AUSTRALIA
| ADAMSON & FULLER | [2017] FamCA 981 |
| FAMILY LAW – CHILDREN – PARENTING – where the parties disagree how their youngest child is coping with their conflictual relationship – where orders are necessary even though parties agree to attend therapy because of the nature of their relationship. |
| Family Law Act 1975 (Cth) |
| In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144; [2011] UKSC 27 |
| APPLICANT: | Ms Adamson |
| RESPONDENT: | Mr Fuller |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 5740 | of | 2016 |
| DATE DELIVERED: | 30 November 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 20, 22, 23, 24 November 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Atkinson |
| SOLICITOR FOR THE APPLICANT: | Kennedy Partners |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Eidelson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Bowlen Dunstan & Associates Pty Ltd |
FURTHER AMENDED PURSUANT TO RULE 17.02 OF THE FAMILY LAW RULES 2004
Orders
That all extant parenting orders are discharged.
The children E born … 2003 and F born … 2005 live with the mother.
The father spend time with F as follows:
(a) each alternate weekend commencing Friday 8 December 2017 from the conclusion of school on the Friday until 2.00pm on the following Sunday; and
(b)during the school holidays (both term and summer) for the first four days of each holiday period and during the summer holidays, for such other periods as the parents agree provided that the time coincides with that when E is in the father’s care.
The father spend time with E as follows:
(a)commencing on 30 November 2017, during each alternate week, from the conclusion of school on the Thursday until the commencement of school on the Friday morning;
(b)commencing on 7 December 2017, each alternate weekend from the conclusion of school on the Thursday until the commencement of school on the following Monday; and
(c)for one half of all school holiday periods on dates to be agreed and failing agreement, the first half in all odd-numbered years and the second half in all even-numbered years.
All time between the father and both children during school terms is suspended during school holiday periods and shall resume upon the commencement of the new term as if it had not been suspended.
BY CONSENT IT IS ORDERED
That the mother and father have equal shared parental responsibility for the children E ("E") born … 2003 and F ("F") born … 2005 (“the children”).
The children live with the father on special occasions as follows:
7.1On the Father’s Day weekend, from 5.00pm on Saturday until the commencement of school on Monday;
7.2 On E’s birthday (…):
7.2.1In 2017 and each alternate year thereafter, from the conclusion of school (or 3.30pm if a non-school day) on 17 November until the commencement of school (or 12 noon if a non-school day) on 18 November.
7.2.2In 2018 and each alternate year thereafter, from the conclusion of school (or 12 noon if a…
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CaseChat Overview and Summary
The court was required to determine the specific orders regarding the children's residence, the father's time with each child, and the allocation of parental responsibility. Additionally, the court needed to address arrangements for special occasions, school holidays, and the practicalities of transitions between parents, including communication protocols and the involvement of professionals.
The court made orders by consent, establishing equal shared parental responsibility for both children. The primary residence of the children was ordered to be with the mother, with specific provisions for the father to spend time with each child on alternate weekends and during school holidays. Detailed arrangements were also set out for special occasions, including birthdays, Father's Day, Mother's Day, Easter, and Christmas, with alternating arrangements for certain events in odd and even-numbered years. The orders also included provisions for communication between parents, travel, and the facilitation of contact between the children and the non-resident parent. The Independent Children's Lawyer was discharged from the proceedings.
Orders
Orders of the court
1.
That all extant parenting orders are discharged.
2.
The children E born … 2003 and F born … 2005 live with the mother.
3.
The father spend time with F as follows:
(a) each alternate weekend commencing Friday 8 December 2017 from the conclusion of school on the Friday until 2.00pm on the following Sunday; and
(b) during the school holidays (both term and summer) for the first four days of each holiday period and during the summer holidays, for such other periods as the parents agree provided that the time coincides with that when E is in the father’s care.
4.
The father spend time with E as follows:
(a) commencing on 30 November 2017, during each alternate week, from the conclusion of school on the Thursday until the commencement of school on the Friday morning;
(b) commencing on 7 December 2017, each alternate weekend from the conclusion of school on the Thursday until the commencement of school on the following Monday; and
(c) for one half of all school holiday periods on dates to be agreed and failing agreement, the first half in all odd-numbered years and the second half in all even-numbered years.
5.
All time between the father and both children during school terms is suspended during school holiday periods and shall resume upon the commencement of the new term as if it had not been suspended.
BY CONSENT IT IS ORDERED
6.
That the mother and father have equal shared parental responsibility for the children E ("E") born … 2003 and F ("F") born … 2005 (“the children”).
7.
The children live with the father on special occasions as follows:
7.1 On the Father’s Day weekend, from 5.00pm on Saturday until the commencement of school on Monday;
7.2 On E’s birthday (…):
7.2.1 In 2017 and each alternate year thereafter, from the conclusion of school (or 3.30pm if a non-school day) on 17 November until the commencement of school (or 12 noon if a non-school day) on 18 November.
7.2.2 In 2018 and each alternate year thereafter, from the conclusion of school (or 12 noon if a non-school day) on 18 November until the commencement of school (or 12 noon if a non-school day) on 19 November.
7.3 On F’s birthday (…)
7.3.1 In 2017 and each alternate year thereafter, from 3.30pm on … until 12 noon on …
7.3.2 In 2018 and each alternate year thereafter, from 12 noon on … until 12 noon on ….
7.4 On the father’s birthday (…) from the conclusion of school (or 12 noon if a non-school day) on … until the commencement of school (or 12 noon if a non-school day) on ...
7.5 At Easter:
7.5.1 In 2018 and each alternate year thereafter, from 5.00pm on Easter Saturday until the commencement of school (or 12 noon if a non-school day) on Easter Tuesday.
7.5.2 In 2019 and each alternate year thereafter, from the conclusion of school (or 3.30pm if a non-school day) on Easter Thursday until 5.00pm on Easter Saturday.
7.6 At Christmas:
7.6.1 In 2017 and each alternate year thereafter, from 12 noon on 25 December until 5.00pm on 26 December.
7.6.2 In 2018 and each alternate year thereafter, from 5.00pm on 24 December until 12 noon on 25 December.
8.
The children live with the mother on special occasions as follows:
8.1 On the Mother’s Day weekend, from 5.00pm on Saturday until the commencement of school on Monday;
8.2 On E’s birthday (…):
8.2.1 In 2017 and each alternate year thereafter, from the conclusion of school (or 12 noon if a non-school day) on … until the commencement of school (or 12 noon if a non-school day) on ….
8.2.2 In 2018 and each alternate year thereafter, from the conclusion of school (or 3.30pm if a non-school day) on … until the commencement of school (or 12 noon if a non-school day) on ….
8.3 On F’s birthday (…)
8.3.1 In 2017 and each alternate year thereafter, from 12 noon on … until 12 noon on 1 January.
8.3.2 In 2018 and each alternate year thereafter, from 3.30pm on … until 12 noon on …
8.4 On the mother’s birthday (…) from the conclusion of school (or 12 noon if a non-school day) on … until the commencement of school (or 12 noon if a non-school day) on ...
8.5 At Easter:
8.5.1 In 2018 and each alternate year thereafter, from the conclusion of school (or 3.30pm if a non-school day) on Easter Thursday until 5.00pm on Easter Saturday.
8.5.2 In 2019 and each alternate year thereafter, from 5.00pm on Easter Saturday until the commencement of school (or 12 noon if a non-school day) on Easter Tuesday.
8.6 At Christmas:
8.6.1 In 2017 and each alternate year thereafter, from 5.00pm on 24 December until 12 noon on 25 December.
8.6.2 In 2018 and each alternate year thereafter, from 12 noon on 25 December until 5.00pm on 26 December.
8.7 For Passover from the conclusion of school (or 12 noon if a non-school day) on the First Day of Passover until the commencement of school (or 12 noon if a non-school day) the following day.
9.
That changeover take place at school where practicable and otherwise the father collect the children from the mother’s home at the commencement of his time and the mother collect the children from the father’s home at the conclusion of his time.
10.
Each party be permitted to take the children overseas for holidays during periods in which the children are living or spending time with that parent pursuant to these orders, provided that the other parent is provided with not less than 14 days’ written notice of the intention to travel, including flight details, travel itinerary, accommodation and contact details during the proposed travel.
11.
Each party do all acts and things and sign all documents necessary to ensure the children have a valid passport.
12.
Each party use their best endeavours to ensure the children’s day to day belongings accompany the children between each parent’s home.
13.
That the parents communicate with each other in relation to parenting matters via email.
14.
The parties forthwith attend upon Mr G for reportable therapeutic counselling, with the costs of attending upon Mr G to be shared equally between the parties.
15.
That each party facilitate communication (by text message and/or phone call) between the children and the other parent at times they are in their care respectively, with the parent to ring the children's mobiles.
16.
Both parties do all acts and things and sign all documents necessary to ensure both parents can locate the children at all times on the “Find My Friends” app.
17.
That each party keep the other parent updated as to the children’s mobile phone number and email address and advise the other parent of any changes within 24 hours.
18.
That each party keep the other parent updated as to their residential address, contact telephone number and email address (“contact details”) and advise the other parent of any changes to their contact details within 24 hours.
19.
Each parent immediately inform the other in the event that the children or any of them are involved in a serious accident or suffer from a serious injury or illness.
20.
Each party be restrained from denigrating the other parent or a member of the other parent’s family in the presence of the children or within their hearing.
21.
Each party be restrained from discussing the Family Court proceedings in the presence of the children or within their hearing.
IT IS FURTHER ORDERED
22.
That copies of the reasons this day and these orders be provided to psychologist Mr G and psychotherapist Ms H by the Independent Children’s Lawyer.
23.
That the Independent Children’s Lawyer is otherwise discharged from the proceedings.
24.
That the application of the mother filed 5 December 2016 and the father filed 3 November 2017 are otherwise dismissed.
25.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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