Arunya and Dobson (No 2)

[2010] FamCA 365

FAMILY COURT OF AUSTRALIA

ARUNYA & DOBSON (NO. 2) [2010] FamCA 365

FAMILY LAW – CHILDREN – Orders by consent following commencement of proceedings – Equal shared parental responsibility – time spent with the father not to be equal time

Family Law Act 1975 (Cth) ss 60CC(1), 60CC(2), 60CC(3), 65DAA(1), 65DAA(2)

MRR v GR [2010] HCA 4

APPLICANT: Ms Arunya

RESPONDENT: Ms Dobson

FILE NUMBER: CAC 3 of 2010

DATE DELIVERED: 12 May 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 12 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A. Fleming

SOLICITOR FOR THE APPLICANT: Elizabeth Fleming & Associates

COUNSEL FOR THE RESPONDENT: Mr P. Ryan

SOLICITOR FOR THE RESPONDENT: Peter Ryan, Solicitor & Attorney

Orders

BY CONSENT IT IS ORDERED THAT:

1. Ms Arunya and Mr Dobson have equal shared parental responsibility for L, born … July 2001, A, born … September 2003, and P born …April 2006.

2. L, A and P (“the children”) will live with their mother.

3. The children will spend time with their father, Mr Dobson, on every second weekend commencing at 9.00 am on the Saturday at B where their father will collect them and the children will be collected by their mother at 6.00 pm at  Y on the following Sunday.

   a.In addition, the children will spend one half of each of the shorter school holidays with their father and one half of the longer end-of-year school holidays with their father. 

   b.In relation to the time the children will spend with their father during school holidays, unless the parties otherwise agree, the children will spend the first half of each of the school holidays with their father in years ending in an even number or a “0”, and the first half of the school holidays with their mother in years ending in an odd number.

   c.Unless the parents otherwise agree, the first half of the shorter school holidays will commence at 9.00 am on the first Saturday after the last day on which any of the children is obliged to attend school in a school term.

   d.In respect of the longer school holidays (Christmas), the first half of the school holidays will commence for the purposes of these orders at 9.00 am on the first Saturday after the last day on which any of the children is obliged to attend school.

   e.The second half of the school holidays in relation to the shorter school holidays will commence at 9.00 am on the second Saturday occurring after the last day on which any of the children is obliged to attend school in a school term.

   f.In relation to the longer school holidays, the second half of the school holidays will commence at 9.00 am on the fourth Saturday after the last day on which any of the children is obliged to attend school.

   g.If the children are with their father for the second half of the school holidays, the time that they spend with him will terminate at 5.00 pm on the Saturday immediately before the children next commence school for the new school term.

   h.In relation to the time the children spend with their father in school holidays, their father will collect them on the first day of the period that they are to spend with him at 9.00 am at B and will be collected by their mother at 5.00 pm at Y.

   i.If Father’s Day should fall on a day which the children are ordinarily with their mother then the children will spend that weekend with their father instead of the following weekend.

   j.If Mother’s Day should fall on a day which the children are ordinarily with their father then the children will spend that weekend with their mother instead of the following weekend. 

4. Neither parent will consume any form of alcohol or illicit drug substance while the children are in his or her care. 

5. Notwithstanding the terms of Order 1 made this day, if any matters arise in relation to the welfare of the children including matters relating to their schooling, their health, or any medical or similar sort of treatment to be undertaken by the children, the mother will consult with the father, and may do so with the assistance of the father’s mother.

   a.Each of the parties will advise the other immediately of any medical condition that occurs while the children are with him or her which requires urgent treatment or the children’s hospitalisation.

   b.Each of the parents will keep the other parent advised of any medication that the children are taking from time to time and will ensure that any such medication prescribed while the children are with him or her will travel with the children back to the other parent at the completion of the time the children spend with the first parent.

   c.Each of the parents will do such things as may be necessary to authorise and direct any school that the children attend to provide to the father copies of all reports, notices and any communications in relation to the children by the school. Copies of such communications, notices and reports will be paid for by the father if the school is to make a charge.

   d.Each of the parents is entitled to attend sporting events and other functions at the children’s schools.  However, if either parent is to attend such events or functions he or she will give the other parent notice of his or her intention to do so to enable the other parent to determine whether he or she proposes to attend in any event.  Nothing in this order will be taken to prevent both parents any event or function that is conducted in relation to the children’s schooling as set out above.

6. The children may ring either parent when they are with the other parent at any reasonable time and the parent with whom the children are with at that time will facilitate such telephone calls.

7. If the children are with one parent, the other parent may ring the children at the other parent’s residence as may be agreed but in default of agreement on Wednesday evening between the hours of 5.00 pm and 6.00 pm.  Such telephone call will occupy no more than ten (10) minutes unless the parents otherwise agree.

   a.Each of the parents will keep the other parent advised of a telephone number at which the children may be reached in accordance with the terms of the last mentioned order and will keep the other parent advised of any changes to such a telephone number.

   b.If the children are with one parent when a telephone call in accordance with these orders is received, he or she will facilitate the children’s receiving such telephone call and will allow them to have that telephone call without any interference and will remove himself or herself from the presence of the children where the telephone call is occurring.

   c.In addition to the telephone communication referred to above, if the children are with one parent the other parent may telephone each of the children on his or her birthday, or on the birthday of the parent with whom the children are not then with, between the hours of 5.00 pm and 6.00 pm.

   d.In addition, on Christmas Day, if the children are with one parent, the other parent may telephone them between the hours of 11.00 am and 1.00 pm.

8. Each of the parents will, to the extent that they are able to, ensure that the children maintain a connection with their Aboriginal culture, and ensure that they have the requisite support, opportunity and necessary encouragement to explore the full extent of that culture, consistent with each of the children’s ages and developmental level and the children’s own views about that culture. 

9. These orders finalise all matters between the parties, all extant applications are dismissed and the matter is removed from the pending cases inventory.

IT IS NOTED THAT:

1. Notwithstanding that the parents have agreed that they will share equal shared parental responsibility, if they should not be able to agree upon any particular matter in relation to the long term care, welfare and development of the children, then they will at first instance take the matter to mediation and in this regard it is noted that there is a Family Relationships Centre in B, NSW which would be a logical place for the parties to attend. 

IT IS NOTED that publication of this judgment under the pseudonym Arunya & Dobson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

IN THE FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 3 of 2010

MS ARUNYA

Applicant

And

MR DOBSON

Respondent

REASONS FOR JUDGMENT

1. The parties have agreed in these proceedings to share parental responsibility for their children.

2. Taking account of the decision of the High Court of Australia in MRR v GR,[1] in light of the agreement that is made by the parties in these proceedings relating to equal shared parental responsibility, I will consider whether the children should spend equal time with their parents (pursuant to s 65DAA(1) of the Family Law Act 1975 (Cth)), or whether the children should spend substantial and significant time (pursuant to s 65DAA(2) of the Family Law Act 1975 (Cth)) with the father, and whether in the circumstances either of those propositions that would be in the children’s best interests and reasonably practicable.

   [1] MRR v GR [2010] HCA 4.

3. I have considered that matter in light of the Family Report by Senior Family Consultant G and, in particular, in relation to the fact that the parties have agreed that equal time proposals are not what will occur in relation to the children. I am satisfied in the circumstances that the arrangements that the parents have made for the children, taking into account all relevant factors under s 60CC(2) & s 60CC(3) of the Family Law Act 1975 (Cth) (as I must: s 60CC(1)), would be in the children’s best interests and are reasonably practicable.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate: 

Date:  12 May 2010