FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BEADLE & BEADLE | [2009] FMCAfam 1147 |
| FAMILY LAW – Parenting – relocation – where mother has job offer in Adelaide – where child has significant attachments to both parents – relocation would have detrimental effect on the child’s relationship with the father – child to remain in Sydney and spend substantial and significant time with the father – interpretation and application of McIntosh shared care research. |
| Family Law Act 1975, ss.60B, 60CC, 61 DA, 65DAA |
| Bolitho & Cohen (2005) FLC 93-224 Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4 Kimberly Shefts, Virtual Visitation: The next Generation of Options for Parent-Child Communication 36(2) Family Law Quarterly 303 |
Applicant: | MS BEADLE |
| Respondent: | MR BEADLE |
| File Number: | SYC 3806 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 12 & 13 October 2009 |
| Date of Last Submission: | 13 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lloyd SC |
| Solicitors for the Applicant: | Paul & Paul Lawyers |
| Counsel for the Respondent: | Ms Carr |
| Solicitors for the Respondent: | E H Tebbutt & Sons |
| Counsel for the Independent Children’s Lawyer: | Mr Barry |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of NSW |
ORDERS
All previous orders be vacated.
The Mother and the Father have equal shared parental responsibility for the Child [X] born [in] 2005 (“the child”).
Commencing immediately, and continuing until the commencement of school term 1 in 2010, the child shall spend time with the father during the school term as follows:
(a)Each Wednesday from after daycare to 6.00pm; and
(b)Each weekend commencing from 4.30pm on Saturday afternoon to 4.30pm on Sunday afternoon.
From the commencement of school term 1 in 2010, the child is to spend time with the father during the school term as follows:
(a)Each Wednesday from after school or daycare as the case may be to 6.00pm; and
(b)Each alternate weekend from after school or daycare or 4.30pm as the case may be (whichever is the earliest) on Friday to…
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- AGLC
- Beadle and Beadle [2009] FMCAfam 1147
- Case
- [2009] FMCAfam 1147
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court encompassed several aspects of parenting orders, including the allocation of parental responsibility, the specific time arrangements for the child, and additional provisions to ensure the child's well-being. The court needed to assess the evidence and arguments presented by both parties to decide on the most suitable parenting arrangements that would serve the child's best interests. This included evaluating the parents' ability to provide for the child's physical, emotional, and educational needs, as well as the impact of any proposed changes on the child's stability and development.
The court, after careful consideration of the evidence and arguments, determined that the Mother and the Father should have equal shared parental responsibility for the child. This decision was based on the understanding that both parents had the capacity to contribute significantly to the child's upbringing. The court then outlined detailed time arrangements for the child to spend with each parent, taking into account the child's current needs, the parents' capabilities, and the importance of maintaining stability and consistency in the child's life. These arrangements included specific periods during school terms, school holidays, and special occasions like birthdays and public holidays. The court also addressed logistical aspects such as changeover times, locations, and conditions to ensure smooth transitions between parents. Additionally, the court imposed various other provisions, such as restrictions on interstate travel, requirements for communication between the parents, and obligations to facilitate contact between the child and the non-resident parent.
The court's orders, which included vacating previous orders and setting new ones, provided a comprehensive framework for the parents to follow. These orders aimed to balance the needs and rights of both parents while prioritizing the child's best interests. The final orders also addressed financial responsibilities, the parents' obligation to complete a post-separation parenting course, and the dismissal of the mother's application to relocate to Adelaide with the child. The court granted leave for the parties to relist for any future issues related to the interpretation, implementation, and enforcement of these orders.
Orders
Orders of the court
1.
All previous orders be vacated.
2.
The Mother and the Father have equal shared parental responsibility for the Child [X] born [in] 2005 (“the child”).
3.
Commencing immediately, and continuing until the commencement of school term 1 in 2010, the child shall spend time with the father during the school term as follows:
(a) Each Wednesday from after daycare to 6.00pm; and
(b) Each weekend commencing from 4.30pm on Saturday afternoon to 4.30pm on Sunday afternoon.
4.
From the commencement of school term 1 in 2010, the child is to spend time with the father during the school term as follows:
(a) Each Wednesday from after school or daycare as the case may be to 6.00pm; and
(b) Each alternate weekend from after school or daycare or 4.30pm as the case may be (whichever is the earliest) on Friday to the commencement of school, daycare or 9am on Monday as the case may be (whichever is the earliest).
5.
From the commencement of school term 3 in 2010, the child is to spend time with the father as follows:
(a) In week one and each alternate week thereafter, each Wednesday from after school or daycare as the case may be to before school or daycare on Thursday;
(b) In week two and each alternate week thereafter; from after school or daycare or 4.30pm as the case may be (whichever is the earliest) on Friday to the commencement of school, daycare or 9am on Monday as the case may be (whichever is the earliest).
6.
During the forthcoming school holidays, the child is to spend time with the father for two periods of four (4) days and three (3) nights as the parents agree, but if they are unable to agree, commencing at 10.00am on the second and fifth Fridays of the said school holidays and concluding at 4.00pm on the following Monday.
7.
In subsequent school holidays, the child is to spend time with the father for one half of the same as agreed by the parties but failing agreement for the first half of the same as agreed by the parties but failing agreement for the first half in even numbered years and the second half in odd numbered years.
8.
The child is to spend time with the Father from 12noon on Boxing Day to 12noon on Christmas Day in odd numbered years, and from 12noon on Christmas Day to 12noon on Boxing Day in even numbered years. All orders for holiday time are suspended during this period.
9.
In the event the Easter period does not fall within a school holiday period and in the absence of an agreement between the parties, the child is to spend time with the father from 6.00pm on Easter Thursday to 6.00pm on Easter Saturday in even numbered years and from 6.00pm on Easter Saturday to 6.00pm on Easter Monday in odd numbered years.
10.
The child is to spend time with the father on the child’s birthday as agreed between the parents, but failing agreement:
(a) For three hours if the birthday occurs on a weekday; or
(b) For five hours if the child’s birthday occurs on a weekend.
11.
The child is to otherwise live with the mother.
12.
For the purposes of Orders 2, 3 and 4, changeover is to take place as follows:
(a) If the child is at daycare or school, the father is to collect the child from daycare or school at the commencement of his time with her.
(b) Where the child is at the mother’s residence, the father is to collect the child from the mother’s residence;
(c) Where the child is to be returned to daycare or school, the father is to return the child to daycare or school;
(d) Where the child is to be returned to the mother’s residence, the mother is to collect the child from the father’s residence at the end of his time with her.
13.
For the purposes of Orders 5,6,7,8 and 9 changeover is to occur with the father to collect the child at the commencement of time from the mother’s residence, and the mother is to collect the child from the father’s residence at the end of said time.
14.
Order 3 (a) and (b) is varied on Mother’s Day each year so that the child commences spending time with the father that week at 4.30pm on Sunday instead of 9.00am on Sunday.
15.
Unless otherwise agreed by the parties, school holidays:
(a) Shall commence at 9.00am;
(b) Shall conclude at 6.00pm;
(c) Will be calculated from the day after the last day of school until and including the day immediately before school resumes;
(d) Pupil free days are deemed to be school holidays; and
(e) After a period of school holidays, Order 2(a) shall resume on the first weekend after school has resumed if the child lived with the father during the first half of the school holidays AND on the second weekend after school has resumed if the child lived with the father during the second half of the school holidays.
16.
Unless otherwise specified in the others, for the purposes of changeover:
(a) When the father delivers the child to the mother, he is to deliver the child to the back entrance of the mother’s residence at the gate and not go beyond the gate. The mother is to remain inside the residence.
(b) When the mother delivers the child to the father, she is to deliver her to the father’s apartment and remain at least four (4) metres away.
17.
Each party is to maintain a separate wardrobe of clothing for the child at the home of that parent and when that clothing is worn by the child to the home of the other parent, then that parent is to ensure that the clothing is returned, washed and ironed, to the other parent as soon as practical and/or that clothing is worn by the child at the time of the next changeover.
18.
Each party is to have liberal telephone calls with the child when the child is in the care of the other party and for the purposes of such communication:
(a) The parties shall facilitate the child telephoning the other party in accordance with the child’s wishes; and
(b) The parties shall ensure the child has privacy when speaking on the phone to the other party.
19.
Either party is permitted to take the child interstate or out of Australia for holidays or for other short periods of time provided that:
(a) It is during the child’s scheduled holiday time with that parent, unless otherwise agreed to in writing by the other parent;
(b) Each party will give to the other party at least two (2) calendar months’ notice of that party’s intention to take the child out of Australia; and
(c) Each party will provide to the other party an itinerary which will include the date the child will be travelling interstate or will be leaving Australia and the date the child will be returning to Sydney, flight details including carrier and flight number, telephone number and address of where the child will be staying during their absence from Sydney.
20.
Each party ensures the other party is kept informed at all times of the residential address of the child and a telephone contact number on which the child may be reached and shall advise the other party no less than 48 hours prior to any change of residential address or phone number.
21.
Both parties are hereby restrained from:
(a) Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the child’s hearing.
(b) Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.
22.
Each party contact the other party in the event that there is a medical emergency involving the child whilst the child is in that party’s care.
23.
The parties do all things necessary to enrol in and complete a post separation parenting course nominated by the Independent Children’s Lawyer.
24.
The Father is to pay the Independent Children’s Lawyer’s costs in the sum of $1,650.00 to the Legal Aid Commission of NSW within
28 days of the date of these orders unless he receives a waiver in respect of the costs.
25.
The mother’s application to relocate to Adelaide with the child is dismissed.
26.
Parties have leave to relist before Federal Magistrate Altobelli as regards the interpretation, implementation and enforcement of these orders.
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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