FEDERAL CIRCUIT COURT OF AUSTRALIA
| BANCROFT & BANCROFT | [2018] FCCA 517 |
| Catchwords: FAMILY LAW – Parenting – 4 children – father lives in suburban Sydney mother lives (location omitted) – where children are to live – wishes of children – parental capacity to meet children’s needs – parental responsibility. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA Mental Health (Criminal Procedure) Act 1900, s.32 |
| Cases cited: Boyle & Zahur & Anor (No.2) [2017] FamCAFC 263 Goode & Goode (2006) FLC 93 – 286 MRR & GR [2010] HCA 4 |
| Applicant: | MR BANCROFT |
| Respondent: | MS BANCROFT |
| File Number: | PAC 853 of 2010 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 10, 11, 12 May 2017, 5 June 2017 |
| Date of Last Submission: | 20 June 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 5 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gilbert |
| Solicitors for the Applicant: | Burke & Mangan |
| Counsel for the Respondent: | Ms Snelling |
| Solicitors for the Respondent: | Fairfax Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Gutteres |
| Solicitors for the Independent Children's Lawyer: | O'Donnell & Associates Family Lawyers |
ORDERS
That the parents shall have equal shared parental responsibility for the children:
(a)[W] born (omitted) 2004;
(b)[X] born (omitted) 2006,
(c)[Y] born (omitted) 2008; and
(d)[Z] born (omitted) 2011.
For the purpose of the order for equal shared parental responsibility, the parents are to consult each other in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision about that issue.
That the children shall live with the father.
That the children shall spend time with the mother as follows:
(a)During the school terms:
(i)Commencing on 9 March 2018 and each alternate week thereafter, from after school on Friday to before school on Monday (or Tuesday if Monday is a non-school day);
(ii)Commencing on 13 March 2018 and each alternate week thereafter, from after school on Tuesday to 7pm;
(b)During the school holidays:
(i)For one week in the school holidays at the conclusion of terms 1, 2 and 3 commencing at 10am on the first Saturday of the school holidays and concluding at 5pm on the second Saturday of the school holidays;
(ii)For one half of the school holidays at the conclusion of term 4 at times agreed between the parties and failing agreement:
1. In 2018 and each even numbered year thereafter from 10am on the middle Saturday of the holidays to 5pm on the last Saturday of the holidays;
2. In 2019 and each odd numbered year thereafter from 10am on the first Saturday of the school holidays to 5pm…
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- Bancroft and Bancroft [2018] FCCA 517
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- [2018] FCCA 517
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CaseChat Overview and Summary
The court was required to determine the orders concerning parental responsibility, the children's living arrangements, and the time each parent would spend with the children. Further issues included the practical arrangements for changeovers, communication between parents, and injunctions to prevent certain behaviours.
The court ordered equal shared parental responsibility for the children, requiring the parents to consult and make a genuine effort to reach joint decisions. The children were ordered to live with the father, with specific provisions for the mother's time with them during school terms, school holidays, and on public holidays. The orders also detailed communication protocols, including regular telephone contact, notification of medical appointments and emergencies, and restrictions on attending specialist appointments without prior notice. Injunctions were imposed restraining both parents from abusing or denigrating the other parent, and from discussing the proceedings in the presence or hearing of the children.
Orders
Orders of the court
1.
That the parents shall have equal shared parental responsibility for the children:
(a) [W] born (omitted) 2004;
(b) [X] born (omitted) 2006,
(c) [Y] born (omitted) 2008; and
(d) [Z] born (omitted) 2011.
2.
For the purpose of the order for equal shared parental responsibility, the parents are to consult each other in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision about that issue.
3.
That the children shall live with the father.
4.
That the children shall spend time with the mother as follows:
(a) During the school terms:
(i) Commencing on 9 March 2018 and each alternate week thereafter, from after school on Friday to before school on Monday (or Tuesday if Monday is a non-school day);
(ii) Commencing on 13 March 2018 and each alternate week thereafter, from after school on Tuesday to 7pm;
(b) During the school holidays:
(i) For one week in the school holidays at the conclusion of terms 1, 2 and 3 commencing at 10am on the first Saturday of the school holidays and concluding at 5pm on the second Saturday of the school holidays;
(ii) For one half of the school holidays at the conclusion of term 4 at times agreed between the parties and failing agreement:
1. In 2018 and each even numbered year thereafter from 10am on the middle Saturday of the holidays to 5pm on the last Saturday of the holidays;
2. In 2019 and each odd numbered year thereafter from 10am on the first Saturday of the school holidays to 5pm on the middle Saturday of the school holidays;
(c) For Easter:
(i) In 2018 and each even numbered year thereafter from the conclusion of school on Easter Thursday to 12 noon on Easter Saturday;
(ii) In 2019 and each odd numbered year thereafter from 12 noon on Easter Saturday until 12 noon on Easter Monday;
(d) Unless the children are already spending time with the mother, on the Mother’s Day weekend from 5pm on Saturday to 5pm on Sunday; and
(e) Unless the children are already spending time with the mother on each of the children’s birthdays (with all of the children) for a period of two hours as agreed between the parents but failing agreement from after school to 5pm.
5.
Notwithstanding any other order, the children shall spend time with the father:
(a) On Father’s Day weekend from 5pm on Saturday to 5pm on Sunday; and
(b) On each of the children’s birthdays (with all of the children) for a period of two hours as agreed between the parents but failing agreement from 5pm to 7pm.
6.
Changeover shall occur as follows:
(a) On the days that the children’s time with the mother commences at the conclusion of school, the mother shall collect the children from their respective school at the end of the school day;
(b) On the days that the children’s time with the mother commences at a time other than at the conclusion of school, the mother shall collect the children from the father’s residence at the commencement of time;
(c) On the days that the children’s time with the mother concludes at the commencement of school, the mother shall deliver the children to their respective schools at the commencement of the school day;
(d) On the days that the children’s time with the mother concludes at a time other than the commencement of school, the mother shall deliver the children to the father’s residence at the conclusion of the time, except that at the end of the school holidays when it is the father who shall collect the children from the mother’s residence at the conclusion of the children’s time with the mother.
7.
For the purposes of the above order and except as otherwise provided for in these orders, on the days when the mother is collecting the children from their respective schools, the father is not to be in attendance at the conclusion of the school day and he shall ensure that Ms J shall likewise not attend.
8.
That should either parent be accompanied at changeover by a third party, that third party shall remain in the motor vehicle and not participate in the changeover.
9.
The children shall communicate with the parent with whom they are not spending time, by telephone or Skype or other appropriate method, between 5.30pm and 6.30pm each Tuesday and Thursday. The parent facilitating the communication shall ensure that the children have reasonable privacy whilst talking to the other parent.
10.
That each parent shall keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 48 hours of such change.
11.
That in the event of childhood illness or medical emergency, the parent with whom the child or children may be at any time, shall contact the other parent forthwith by telephone or SMS to inform them of the emergency and the name and contact details of the hospital or clinic where the child or children have been admitted.
12.
That the father/mother shall advise the mother/father in writing, with no less than 7 days’ notice, of any specialist medical appointment for the children, including the name of the health practitioner and the time and place of the appointment and the mother/father shall be permitted to attend the appointment and shall advise the father/mother in writing of her/his intention to do so.
13.
That the parents shall inform each other and keep each other informed of the name, telephone number and address of the children’s current and future treating medical specialists and therapists, including but not limited to speech therapists and paediatricians.
14.
That both parents be and are hereby restrained from taking the children or any of them to any psychologist, psychiatrist, therapist or counsellor (“therapists”) whatsoever, unless upon the express referral or recommendation of the school counsellor at the children’s respective school or the children’s general practitioner or any treating medical specialist.
15.
Both parents are permitted to contact the children’s treating medical specialists and therapists for the purpose of receiving information and reports about the children’s diagnosis and treatment.
16.
Both parents are permitted to liaise directly with the children’s respective schools and sporting bodies to receive relevant notices, information, newsletters, reports photographs and other information as to the children’s progress.
17.
Both parties are at liberty to attend the children’s respective schools for the purposes of any school function or activity normally attended by parents.
18.
The parents shall communicate with each other about issues that are limited to the children’s care, including the children’s educational and medial issues using SMS or email only except in the case of a medical emergency regarding themselves or the children.
19.
The mother shall continue to engage with her psychiatrist Dr S or other treating specialist for such time as the treater considers necessary and shall comply with all recommendations as to treatment.
20.
The father shall continue to engage with his psychiatrist Dr J or other treating specialist for such time as the treater considers necessary and shall comply with all recommendations as to treatment.
21.
That each of the parents, their servants and agents are restrained by injunction from:
(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent by any way whatsoever; and
(b) Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing for the children, or any of them and permitting or allowing any third party to do so.
22.
Remove all outstanding issues from the list of cases awaiting finalisation.
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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