FAMILY COURT OF AUSTRALIA
| BENSON & DRURY | [2017] FamCA 578 |
| FAMILY LAW – CHILDREN – Final orders – Parental responsibility – Family violence – Where a finding of family violence dispels the presumption of equal shared parental responsibility – Where there is evidence that the parties have limited ability to communicate and effect handovers – Where there is evidence that the parties are not able to decide matters relating to the children’s health and education– Order for shared parental responsibility save for matters of the children’s health and education whereby the mother shall have sole parental responsibility and shall consult with the father. FAMILY LAW – CHILDREN – Relocation – Time with father – Bests interests of the children –Meaningful relationship – Where mother seeks orders to relocate interstate – Where the father seeks orders for equal care arrangement – Where the mother has significant career prospects interstate – Where there is no reason to doubt the mother’s compliance with any orders – Where the mother and children are permitted to relocate interstate – Where orders are made for the father to spend time with the children. |
Where the parties have not finalised property proceedings and are now out of time to commence proceedings.
| Evidence Act 1995 (Cth) Family Law Rules 2004 (Cth) Part 15.5, r 15.13 A v A (2000) FLC 93-035 |
| APPLICANT: | Mr Benson |
| RESPONDENT: | Ms Drury |
| FILE NUMBER: | ADC | 3749 | of | 2015 |
| DATE DELIVERED: | 9 August 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 6, 7, 8, 9, 10 & 23 February 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hemsley |
| SOLICITOR FOR THE APPLICANT: | Adelaide Family Law |
| COUNSEL FOR THE RESPONDENT: | Ms Pyke QC |
| SOLICITOR FOR THE RESPONDENT: | D'Angelo Kavanagh |
Orders
That all previous parenting orders be discharged.
That the parties have shared parental responsibility for B born … 2005 and C born … 2008 (“the children”) for all major issues save and except health and education.
That the mother do have sole parental responsibility in respect of health issues and education affecting the children subject to a requirement that she will advise the father in writing (electronically or otherwise), provide her views about any major issues affecting the children’s health (including medical, dental, counselling and psychological therapy)and which school they attend and shall consult with the father about such issues but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the…
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- Benson & Drury [2017] FamCA 578
- Case
- [2017] FamCA 578
- Decision Date
CaseChat Overview and Summary
Berman J found that a history of family violence dispelled the presumption of equal shared parental responsibility. The court also noted evidence of the parties' limited ability to communicate effectively, particularly regarding the children's health and education, and their inability to agree on these significant matters. Consequently, the court made orders for shared parental responsibility concerning major issues, with the mother having sole responsibility for the children's health and education, subject to consultation with the father.
The court permitted the mother to relocate the children to Melbourne, Victoria, given her career opportunities and the absence of doubt regarding her compliance with court orders. Orders were made for the father to spend time with the children following the relocation, with specific provisions for travel arrangements and communication. The court also made alternative orders for time with the father should the relocation not proceed or if the father were to relocate to Melbourne.
Orders
Orders of the court
1.
That all previous parenting orders be discharged.
2.
That the parties have shared parental responsibility for B born … 2005 and C born … 2008 (“the children”) for all major issues save and except health and education.
3.
That the mother do have sole parental responsibility in respect of health issues and education affecting the children subject to a requirement that she will advise the father in writing (electronically or otherwise), provide her views about any major issues affecting the children’s health (including medical, dental, counselling and psychological therapy)and which school they attend and shall consult with the father about such issues but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing of that decision.
4.
The children shall live with the mother.
5.
From the commencement of 2018 and provided that the current offer of employment is not withdrawn and remains available, the mother be permitted to relocate the children to Melbourne in the State of Victoria.
6.
Following relocation the children spend time with the father as follows:-
(a) For three (3) long weekends in each calendar year at such times as may be agreed between the parties;
(b) In addition to sub-paragraph (a), for one (1) weekend in each school term from Friday afternoon to Sunday afternoon at such times as the parties may agree;
(c) For the Easter period from the afternoon on Maundy Thursday to the afternoon of Easter Monday at such times as may be agreed between the parties in odd numbered years;
(d) For the first half of school holidays including Christmas Day in even numbered years and the second half in odd numbered years;
(e) If the father shall elect to travel to Melbourne to spend time with the children and upon him giving reasonable notice of his intention to do so, for two (2) further weekends in each school term from Friday afternoon to Sunday afternoon at such times as the parties may agree;
(f) At such other times as may be agreed in writing.
7.
That for the purpose of the children spending time with the father in Adelaide:-
(a) That to give effect to paragraph 6(a), (b), (c), (d) and (f), the mother will arrange for and pay for airfares for the children from Melbourne to Adelaide and return and provide the father with the travel itinerary by email at least fourteen (14) days prior to the start of travel;
(b) The mother or her nominee shall take the children to the airport in Melbourne and ensure that the children are placed on the aircraft to travel to Adelaide and the father or his nominee shall ensure that he or his nominee is at the airport in Adelaide to collect the children;
(c) The father or his nominee will take the children to the airport in Adelaide and ensure the children are placed on the aircraft to travel to Melbourne and the mother or her nominee shall ensure that she or her nominee is at the airport in Melbourne to collect the children;
(d) The mother shall ensure the children are available to take telephone calls from the father as soon as reasonably practicable prior to their departure from Melbourne travelling to Adelaide and the father shall ensure that the children are available to take telephone calls from the mother as soon as reasonably practicable after their arrival in Adelaide;
(e) The father shall ensure the children are available to take telephone calls from the mother as soon as reasonably practicable prior to their departure from Adelaide travelling to Melbourne and the mother shall ensure that the children are available to take telephone calls from the father as soon as reasonably practicable after their arrival in Melbourne;
(f) If either party is not personally transporting the children to and from the airport either in Adelaide or in Melbourne they will inform the other party by email in advance as to who will be doing so.
8.
That in respect of the time that the father may elect to spend with the children in Melbourne:-
(a) The father will fund his own travel expenses;
(b) The father will provide the mother with notice of his intention to spend time with the children by email prior to the commencement of each school term;
(c) The father is permitted to include the weekend of Father’s Day as one of his weekends but is not to include the weekend of Mother’s Day as one of his weekends.
9.
The children are to be at liberty to communicate by way of telephone, Skype, Facetime or Email with the parent with whom they are not spending time and the parent with who they are currently spending time is to facilitate such communication upon the children’s request.
10.
Each party shall inform the other as soon as possible of any medical emergency involving either of the children.
11.
Each party shall keep the other informed of their current residential addresses, home and mobile telephone numbers and email addresses.
12.
The mother will:-
(a) Authorise the children’s school/s to provide the father with copies of school reports, notices, other publications and any other information he may request about the children;
(b) Keep the father informed of the children’s significant school and extra-curricular activities;
(c) If requested by the father make the children available for collection by the father from school when the children are to spend time with him in Melbourne.
13.
In the alternative and until relocation, should the mother not elect to relocate to Melbourne or that the offer of employment is withdrawn or no longer available, or if the father shall relocate to live in Melbourne THEN:-
(a) The children shall live with the mother;
(b) The children shall spend time with the father as follows:-
(i) From the conclusion of school on Friday to the commencement of school on the following Monday or 6 pm if the Monday is a non-school day and each alternate weekend thereafter;
(ii) On the intervening Wednesday night from the conclusion of school until the commencement of school on the following Thursday morning and each alternate week thereafter;
(iii) Excluding the Christmas school holidays, for all other school holidays for one half of the holidays from 9 am on the mid- Saturday of the school holiday period until 6 pm on the last Sunday of the school holiday period;
(iv) For one half of the Christmas school holidays in each school period on a week about basis;
(v) For Mother’s Day and Father’s Day in each year:-
1. In the event that Mother’s Day falls when the children are in the father’s care THEN the children are to spend time with the mother from 6 pm on Saturday immediately preceding Mother’s Day to 6 pm on Mother’s Day;
2. In the event that Father’s Day falls when the children are in the mother’s care THEN the children are to spend time with the father from 6 pm on Saturday immediately preceding Father’s Day to 6 pm on Father’s Day;
(vi) On the children’s birthdays in each year:-
1. In the event the children’s birthday fall when the children are in their father’s care THEN the children are to spend time with the mother for a minimum period of five (5) hours to be agreed or in default of agreement from 9 am until 2 pm SAVE AND EXCEPT should the children’s birthday fall on a school day THEN the children do spend time with the mother from the conclusion of school until 8 pm;
2. In the event the children’s birthday fall when the children are in their mother’s care THEN the children are to spend time with the father for a minimum period of five (5) hours to be agreed or in default of agreement from 9 am until 2 pm SAVE AND EXCEPT should the children’s birthday fall on a school day THEN the children do spend time with the father from the conclusion of school until 8 pm.
(vii) For the mother’s and father’s birthday in each year:-
1. In the event the mother’s birthday falls when the children are in the father’s care then the children are to spend time with the mother for a minimum period of five (5) hours to be agreed or in default of agreement from 9 am to 2 pm SAVE AND EXCEPT should the mother’s birthday fall on a school day THEN the children do spend time with the mother from the conclusion of school until 8 pm;
2. In the event the father’s birthday falls when the children are in their mother’s care then the children are to spend time with the father for a minimum period of five (5) hours to be agreed or in default of agreement from 9 am to 2 pm.
(viii) At such other times as may be agreed in writing.
14.
That handover not at school shall occur at the mother’s home with the father causing the return of the children to the mother’s home by a person other than the father NOTING that the nominated person is to remain in the motor vehicle when returning the children.
15.
The children are to be at liberty to communicate by way of telephone, Skype, Facetime or Email with the parent with whom they are not spending time and the parent with who they are currently spending time is to facilitate such communication upon the children’s request.
16.
That other than in circumstances and on occasions when the children are in the care of each of the parties the parent who does not have the care of the children is restrained and an injunction is granted restraining him or her from attending at any school function, extra-curricular activity, sporting fixture and practice SAVE as may be agreed between the parties.
17.
That the parties do all such things and authorise the children’s schools to allow both parents to be provided with copies of school information including but not limited to notices, circulars, reports cards and the like.
18.
The parties do all such things as to entitle each of them access to important documentation regarding the children including but not limited to medical records.
19.
Each party shall inform the other as soon as possible of any medical emergency involving either of the children.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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