FEDERAL CIRCUIT COURT OF AUSTRALIA
Austin & Benning [2021] FCCA 1339
File number(s): MLC 7968 of 2019 Judgment of: JUDGE HARLAND Date of judgment: 17 June 2021 Catchwords: FAMILY LAW – parenting dispute – children 3 and 11 – high conflict – whether or not there should be a shared care arrangement Legislation: Family Law Act 1975 (Cth) pt VII, ss 60B(1), (2), 60CA, 60CC(2),(3), 61DA(1), (2), (4) 64, 65D, 65DAA(1), (3) Cases cited: Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Waterford & Waterford [2013] FamCA 33
Number of paragraphs: 125 Date of hearing: 3-4 May 2021 Place: Melbourne Counsel for the Applicant: Mr Williams Counsel for the Respondent: Mr Kiernan Solicitor for the Applicant: Cornish Lawyers Solicitor for the Respondent: Twigg Family Law ORDERS
MLC 7968 of 2019 BETWEEN: MS AUSTIN
Applicant
AND: MR BENNING
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
17 JUNE 2021
THE COURT ORDERS THAT:
1.The mother and father have equal shared parental responsibility of the children X born in 2010 and Y born in 2017 (“the children”).
2.The children live with the mother.
3.From 17 June 2021, up until the commencement of the 2021/2022 long summer holidays, the children spend time and communicate with the father as follows:
(a)Week One
(i)From 3:30pm or after school/kindergarten on Friday, until 9:00am or before school/kindergarten the following Tuesday;
(b)Week Two
(i)From 3:30pm or after school on Wednesday, until 9:00am or before school the following Thursday.
(c)On each of the children’s birthdays, if not otherwise in the care of the father, for three hours if a school day and in default of agreement from 3.30pm until 6.30pm and for 5 hours if a non-school day and in default of agreement from 10am to 3pm;
(d)From 5pm on the Saturday before Fathers’ Day until 5pm on Fathers’ Day;
(e)such further and other times as agreed between the parties in writing.
4.Subject to order 5 below, during the long summer holidays the children live with the mother and father in alternating weeks as follows:
(a)Week one
(i)From 9:00am on the morning following the last day of the school term, the children live with the father until one week later;
(b)Week two
(i)From 9:00am one week later the children live with the mother until 9:00am one week later.
5.For the purposes of these Orders, the school term and long summer holidays are deemed to commence at 9:00am on the day after the last day of school, and concluding at 9:00am on the first day of school.
6.Over the Christmas period:
(a)The children spend time with the father from 4:00pm on Christmas Eve until 2:00pm on Christmas Day in 2021 and in each alternate year thereafter and the children’s time with the mother be suspended during that period; and
(b)The children spend time with the mother from 4:00pm on Christmas Eve until 2:00pm on Christmas Day in 2022 and each alternate year thereafter and the children’s time with the father be suspended…
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CaseChat Overview and Summary
The court was required to determine the specific arrangements for the children's living arrangements, time spent with each parent, communication, and the allocation of parental responsibility. This included establishing a schedule for regular time, holiday periods, birthdays, and other significant dates, as well as addressing practical matters such as medical care, school enrolment, and communication between the parents.
Harland J made orders establishing equal shared parental responsibility for the children. The children were ordered to live with the mother, with a detailed schedule outlining the time the children would spend with the father during school terms, long summer holidays, Christmas, Easter, and inter-term holidays. The orders also stipulated arrangements for birthdays, Father's Day, and Mother's Day, and included provisions for communication, medical treatment, school attendance, and extracurricular activities. The court also made specific orders regarding the enrolment of child X at C School, with costs to be shared equally.
Orders
Orders of the court
MLC 7968 of 2019
BETWEEN:
MS AUSTIN
Applicant
AND:
MR BENNING
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
17 JUNE 2021
THE COURT ORDERS THAT:
1. The mother and father have equal shared parental responsibility of the children X born in 2010 and Y born in 2017 (“the children”).
2. The children live with the mother.
3. From 17 June 2021, up until the commencement of the 2021/2022 long summer holidays, the children spend time and communicate with the father as follows:
(a) Week One
(i) From 3:30pm or after school/kindergarten on Friday, until 9:00am or before school/kindergarten the following Tuesday;
(b) Week Two
(i) From 3:30pm or after school on Wednesday, until 9:00am or before school the following Thursday.
(c) On each of the children’s birthdays, if not otherwise in the care of the father, for three hours if a school day and in default of agreement from 3.30pm until 6.30pm and for 5 hours if a non-school day and in default of agreement from 10am to 3pm;
(d) From 5pm on the Saturday before Fathers’ Day until 5pm on Fathers’ Day;
(e) such further and other times as agreed between the parties in writing.
4. Subject to order 5 below, during the long summer holidays the children live with the mother and father in alternating weeks as follows:
(a) Week one
(i) From 9:00am on the morning following the last day of the school term, the children live with the father until one week later;
(b) Week two
(i) From 9:00am one week later the children live with the mother until 9:00am one week later.
5. For the purposes of these Orders, the school term and long summer holidays are deemed to commence at 9:00am on the day after the last day of school, and concluding at 9:00am on the first day of school.
6. Over the Christmas period:
(a) The children spend time with the father from 4:00pm on Christmas Eve until 2:00pm on Christmas Day in 2021 and in each alternate year thereafter and the children’s time with the mother be suspended during that period; and
(b) The children spend time with the mother from 4:00pm on Christmas Eve until 2:00pm on Christmas Day in 2022 and each alternate year thereafter and the children’s time with the father be suspended during that period.
7. From the start of the school term in January 2022, the children spend time and communicate with the father as follows:
(a) Week One
(i) From 3:30pm or after school on Friday until 9:00am or before school the following Tuesday.
(b) Week Two
(i) From 3:30pm or after school Wednesday until 9:00am or before school the following Friday Thursday.
(c) On each of the children’s birthdays if not otherwise in the care of the father for three hours if a school day and in default of agreement from 3.30pm until 6.30pm and for 5 hours if a non-school day and in default of agreement from 10am to 3pm
(d) from 5pm on the Saturday before Fathers’ Day until 5pm on Fathers’ Day
(e) such further and other times as agreed between the parties in writing.
8. The children’s time with the father be suspended as follows:
(a) On each of the children’s birthdays if not otherwise in the care of the mother for three hours if a school day and in default of agreement from 3.30pm until 6.30pm and for 5 hours if a non-school day and in default of agreement from 10am to 3pm
(b) from 5pm on the Saturday before Mothers’ Day until 5pm on Mothers’ Day
(c) such further and other times as agreed between the parties in writing
9. From 2022 onwards, during the short, inter-term school holidays:
(a) In odd-numbered years
(i) The children spend time with the father for the first half of each of these school holiday periods; and
(ii) The children spend time with the mother for the second half of each of these school holiday periods.
(b) In even-numbered years
(i) The children spend time with the mother for the first half of each of these school holiday periods; and
(ii) The children spend time with the father for the second half of each of these school holiday periods.
10. For the purposes of Order 9, the inter-school term holidays are deemed to commence at 9:00am on the morning following the last day of the school term and changeovers shall occur at 4:00pm on the day in the middle of the school holiday period.
11. Over the Easter period in each and every year:
(a) The children spend time with the mother from 9:00am until 1:00pm on Easter Sunday and with the Father from 1:00pm to 5:00pm on that day in 2021 and each alternate year thereafter; and
12. The children spend time with the father from 9:00am until 1:00pm on Easter Sunday and with the mother from 1:00pm to 5:00pm on that day in 2022 and each alternate year thereafter.
13. Changeover occur wherever possible at the children’s school and otherwise in default of the agreement the father or his nominee shall collect the children from the front door of the mother’s residence at the commence of the children’s time with him and the mother or her nominee shall collect the children from the front door of the father’s residence at the conclusion of the children’s time with him.
14. The mother and father do all acts and things necessary, and provide all necessary authorities to the other party, to engage with any agreed medical practitioner or allied health professional treating the children from time to time and each of them shall advise the other by email of any medical or other allied health professional appointments upon the appointments being made.
15. The mother and father follow all reasonable recommendations and directions of any agreed medical practitioner or allied health professional treating the children from time to time including engaging with other support services.
16. Each party be and is authorised to attend any events and activities ordinarily attended by parents at the children’s school and to receive any information from the school ordinarily received by parents.
17. Neither party will enrol the children in extra-curricular activities which would impose upon the time the children spend with the other parent, without the consent of the other parent, and such consent shall not be unreasonably withheld.
18. The parties ensure that at all times they provide to the other party their current contact telephone number and address.
19. Each party inform the other party of any serious illness, hospitalisation or injury sustained by the children whilst in his or her care as soon as practicable and provide particulars of any treatment required or received by the children together with the contact details for the treating doctor/s.
20. Save for emergencies the mother and father will use email, text or a parenting communication application to relay appropriate information about the children’s routine, medication, and any other queries or concerns relating to the day to day care of the children or any matters relevant to the children’s arrangements.
21. The parties be at liberty to provide a copy of the Family Reports by Dr B filed 4 November 2019 and 1 December 2020 to any counsellor that they attend.
22. The parties do all such acts and sign all necessary documents forthwith to enrol X born in 2010 at C School for the year commencing 2022 with the cost of such attendance being shared equally between the parties including but not limited to:-
(a) Fees as invoiced by the school;
(b) Uniforms including shoes;
(c) Levies;
(d) Compulsory extra-curricular activities;
(e) Agreed extra-curricular activities; and
(f) Books.
AND THE COURT NOTES THAT
A. These Orders have been amended pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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