FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BANCROFT & GRATTAN | [2009] FMCAfam 506 |
| FAMILY LAW – Parenting – whether the father ought to have sole parental responsibility – whether mother should be able to attend the children’s school – whether father should be able to speak to mother’s treating psychiatrist and access her Medicare records – whether the father ought to be restrained from permitting the children to come into contact with a third party. |
| Family Law Act 1975 (Cth), ss.60CC (2), (3) & (4) |
| Applicant: | MR BANCROFT |
| Respondent: | MS GRATTAN |
| File Number: | PAC 7060 of 2007 |
| Judgment of: | Henderson FM |
| Hearing dates: | 12, 13 & 14 November 2008, 14 & 15 April 2009 |
| Date of Last Submission: | 15 April 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 24 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Druitt |
| Solicitors for the Applicant: | Maria Voncina Solicitors |
| Counsel for the Respondent: | Mr Hodgson and Mr Gorham |
| Solicitors for the Respondent: | No solicitor on record |
| Counsel for the Independent Children’s Lawyer | Mr Perry |
| Solicitors for the Independent Children’s Lawyer | Legal Aid Commission of NSW |
ORDERS
That children of the relationship, namely [X] in 2001 and [Y] born in 2003 (“the children”), live with the father.
That the father have sole parental responsibility for the children.
That the children spend time with the mother as follows:
(a)From 6.00pm on Friday until 5.00pm on Sunday, or until 5.00pm on Monday where the weekend is a long weekend, on each fourth weekend, such time spent to commence on the first weekend after the making of these Orders. The mother’s time with the children pursuant to this order is suspended during school holidays and recommences on fourth weekend of each term;
(b)For one half of each school holiday period at the end of Terms 1, 2, and 3 as agreed, but failing agreement, for the second half of such holiday period from 10.00am on the Sunday of the middle weekend to 5.00pm on the Sunday before the first day of the commencement of the new school Term.;
(c)During the school holidays at the end of Term 4, as follows:-
(i)In odd numbered years, from 10.00am on the 28 December, for a period of ten days, concluding at 5.00pm on the tenth day thereafter;
(ii)For a further seven day period commencing on the third Saturday in January and concluding at 5.00pm on the seventh day thereafter;
(iii)In even numbered years, from 10.00am 19 December, for a period of ten days, concluding at 5.00pm on the tenth day thereafter;
(iv)For a further seven day period commencing on the third Saturday in January concluding at 5.00pm on the seventh day thereafter.
(d)If Father’s Day falls on a weekend when the mother is to spend time with the children, the mother will not spend time with the children during that weekend;
(e)If Mother’s Day falls on a weekend when the mother is not to spend time with the children, the children will spend time with the mother from 5.00pm on Friday until 5.00pm on…
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- AGLC
- Bancroft & Grattan [2009] FMCAfam 506
- Case
- [2009] FMCAfam 506
- Decision Date
CaseChat Overview and Summary
The court was required to decide several key legal issues, including the best interests of the children in terms of their residence and parental responsibility, the specific schedule for the children’s time with each parent, and the appropriate measures to ensure the children's welfare and to prevent any form of parental interference. The court also needed to address the parents' ability to make decisions regarding the children's medical and educational needs and to ensure that both parents refrained from any conduct that could negatively impact the children.
The court determined that the children's best interests were served by residing primarily with the father, who was awarded sole parental responsibility. The court set out a detailed schedule for the children’s contact with the mother, which included specific times during weekends, school holidays, and public holidays. The court also imposed various restrictions on both parents to protect the children from potential harm and to ensure that their welfare was paramount. These restrictions included limitations on the mother’s ability to seek medical treatment for the children without the father's consent, restraints on both parents from engaging in any denigration of each other in the children's presence, and prohibitions on the children operating farm machinery or motor vehicles without adult supervision.
The court's final orders reflected a comprehensive approach to ensuring the children's well-being and maintaining a stable environment for their upbringing, while also allowing for meaningful contact with both parents under carefully controlled conditions.
Orders
Orders of the court
1.
That children of the relationship, namely [X] in 2001 and [Y] born in 2003 (“the children”), live with the father.
2.
That the father have sole parental responsibility for the children.
3.
That the children spend time with the mother as follows:
(a) From 6.00pm on Friday until 5.00pm on Sunday, or until 5.00pm on Monday where the weekend is a long weekend, on each fourth weekend, such time spent to commence on the first weekend after the making of these Orders. The mother’s time with the children pursuant to this order is suspended during school holidays and recommences on fourth weekend of each term;
(b) For one half of each school holiday period at the end of Terms 1, 2, and 3 as agreed, but failing agreement, for the second half of such holiday period from 10.00am on the Sunday of the middle weekend to 5.00pm on the Sunday before the first day of the commencement of the new school Term.;
(c) During the school holidays at the end of Term 4, as follows:-
(i) In odd numbered years, from 10.00am on the 28 December, for a period of ten days, concluding at 5.00pm on the tenth day thereafter;
(ii) For a further seven day period commencing on the third Saturday in January and concluding at 5.00pm on the seventh day thereafter;
(iii) In even numbered years, from 10.00am 19 December, for a period of ten days, concluding at 5.00pm on the tenth day thereafter;
(iv) For a further seven day period commencing on the third Saturday in January concluding at 5.00pm on the seventh day thereafter.
(d) If Father’s Day falls on a weekend when the mother is to spend time with the children, the mother will not spend time with the children during that weekend;
(e) If Mother’s Day falls on a weekend when the mother is not to spend time with the children, the children will spend time with the mother from 5.00pm on Friday until 5.00pm on Sunday of that weekend;
(f) If the mother is in the [T] area, she is permitted to spend additional time with the children from 9.00am until 5.00pm on either a Saturday and or a Sunday on no more than ten days in total in any twelve month period, provided that she gives the father ten days notice in writing of her intention to spend such time with the children and the father may postpone such visits by one weekend on no more than three occasions in any one year.
4.
The children be permitted to have telephone contact on not more than three occasions each week with the parent with whom they are not living or spending time with, at that time, and they will each provide the other with a landline telephone number for this purpose. Telephone contact will take place on Tuesdays, Thursdays and Saturdays between 5.30pm and 7.30pm.
5.
The parties will meet at McDonalds Restaurant at [M] for all changeovers in relation to the children, unless otherwise agreed.
6.
That the father be restrained from permitting Mr E to come into contact with the children. Contact being defined by a distance of no less than fifteen metres of the child or children and the father is restrained from permitting the children at the home of Mr E or from allowing Mr E to attend at the children’s home whenever the children are present.
7.
That the mother be restrained from permitting the children to undergo any medical treatment, whilst the children are in her care, except in the case of a medical emergency and if such emergency occurs, the mother is to notify the father of her obtaining such treatment for the children within two hours of the treatment being obtained and provide him with the full name, address and telephone number of the medical practitioner providing the treatment and particulars of the child’s needs for same.
8.
The father is to inform the mother of any emergency medical treatment or counselling which he obtains for the children within twenty four hours of such treatment or counselling being sought.
9.
That the mother be restrained from permitting the children to undergo any counselling whilst the children are in her care.
10.
That the father and mother be restrained from denigrating each other or permitting any other party to denigrate the children in the presence or hearing of the children.
11.
That the father and mother be restrained from directly or indirectly discussing any aspect of these proceedings with the children or in the presence or hearing of the children.
12.
That the father be restrained from permitting the children to operate or drive any farm machinery or motor vehicles for which a licence is required without adult supervision.
13.
That the mother cause her treating psychiatrist to furnish an updating report to the father on or before 30 April of each year.
14.
In the event that the mother is admitted to hospital at any time, the mother will, within seven days of her admission to hospital, cause the father to be advised of the following:
(a) the name of the institution at which she received treatment;
(b) the name of the treating practitioner at the time of the admission;
(c) the dates of admission and discharge.
15.
The mother is to sign all documents necessary to cause the father to be able to obtain her Medicare listings for drug prescriptions within 7 days of a written request by the father.
16.
That in relation to the schools attended by the children, the father shall forward to the mother, within forty eight hours of him receiving same, copies of each school report, school newsletter and any other report concerning the children’s progress at school, behavioural issues and any notification to parents of events affecting the children and events to which parents are normally invited, including but not limited to, parent and teacher nights sporting and social occasions.
17.
Each party will notify the other within twenty four hours of any change of address or change of landline or mobile telephone numbers.
18.
Each party is restrained from taking the children interstate without previously having provided the other party with twenty eight days notice in writing of their intention to visit interstate.
19.
In the event the mother wishes to attend upon the children’s teachers or principal for the purpose of obtaining an update on the progress of either child or both children then the mother shall give 10 days notice in writing to the father (including by SMS or email) of her intention to attend, shall give details of the appointment she seeks and the father may or may not authorise the school to meet with the mother in his presence or in his absence. The father must give notice to the school and the mother in writing (including by SMS or email) of his decision not less than 3 days prior to the proposed appointment.
20.
The mother shall not attend upon the school except as follows:
(a) To attend swimming carnival, athletics carnival, annual concerts or presentation ceremonies, education week functions, Easter hat parade or other special events to which members of the public are invited.
21.
That the father be permitted to show a copy of the report of Dr Quadrio to any officer of DOCS, JIRT or the Police who are caused to attend upon him or the children or who embark upon any enquiry as to the welfare of the children prior to 15 April 2011 without further order of the court and the father may give a copy of Dr Quadrio’s report and Judgement made by this court on 24 April 2009 to the school.
22.
The mother shall do all things and sign all documents so as to cause the children to be listed under the name of the father on his HCF family policy, being transferred from the mother’s policy.
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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