Blakey & Blakey

Case [2020] FamCA 647

FAMILY COURT OF AUSTRALIA

Blakely & Blakely [2020] FamCA 647
FAMILY LAW – CHILDREN – Application by father for parenting orders including orders for joint parental responsibility – Mother seeks for orders sole parental responsibility –  Allegations that children are at an unacceptable risk in the care of the father – Allegations of risk of sexual abuse and family violence – Allegations of alcohol abuse - Orders that the children live with the mother and the elder child spend time with the father only as agreed to by the mother and the younger child spend limited time with the father building up to alternate weekends – Permission for the mother to travel regularly with the children to Japan as a State which ratified the 1980 Hague Abduction Convention – Use of Hague Convention liaison Judges – Question of mirror orders in Japan and/or bond regarding travel
Family Law Act 1975 (Cth) s 60B and s 60CC
Hague Convention on the Civil Aspects of International Child Abduction
J v C in [1969] 1 ALL E.R. 824
Donnell & Dovey [2010] Fam CAFC 16
Mauldera & Orbel (2014) FLC 93-602
Yamada & Cain [2013] FamCAFC 64
Keane & Keane [2020] FamCA 99
APPLICANT: Mr Blakely
RESPONDENT: Ms Blakely
Independent children’s lawyer: Ms Cope
FILE NUMBER: CSC 905 of 2016
DATE DELIVERED: 7 August 2020
PLACE DELIVERED: Hobart
PLACE HEARD: Cairns
JUDGMENT OF: Benjamin J
HEARING DATE: 13, 14, 15 & 16 July 2020 and final submissions 5 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page QC
SOLICITOR FOR THE APPLICANT: Collier Lawyers Pty Ltd
COUNSEL FOR THE RESPONDENT: Mr Jacobs
SOLICiTOR FOR THE RESPONDENT: Cuthberston & Co. Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Williams
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Cope Family Law

Orders

Previous parenting orders

  1. All previous parenting orders made in relation to Y born …2009 (‘the daughter’) and Z born … 2013 (‘the son’), collectively referred to as ‘the children’ are discharged.

Parental responsibility

  1. Ms Blakely (‘the mother’) shall have sole parental responsibility for the children.

    (a)This sole parental responsibility Order shall include decisions about:-

    i.the children’s education both current and future;

    ii.the children’s religious and cultural upbringing;

    iii.the children’s health; and

    iv.the children’s names.

    (b)This sole parental responsibility Order is subject to the following:-

    i.where reasonably possible, the mother will contact the father in writing, including electronically, and provide him with her proposed decisions about any prospective major long term decisions concerning the children before making a final decision about any such issue;

    ii.the mother will consider and take into account any reasonably prompt response she receives from the father when making her decision/s about any such issue/s;

    iii.the mother will inform the father of any decision made by her about any such issue; and

    (c)Such parental responsibility includes that the mother is solely permitted and authorised to apply for the issue and renewal of both Australian and Japanese passports for the children or either of them and she may do so without…

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AGLC
Blakey & Blakey [2020] FamCA 647
Case
[2020] FamCA 647
Decision Date

CaseChat Overview and Summary

This matter concerned parenting orders made by Benjamin J in relation to the parties' two children, Y and Z. The dispute involved the allocation of parental responsibility and the arrangements for the children's residence and time spent with each parent.

The court was required to determine the extent of parental responsibility to be afforded to each parent, specifically whether one parent should have sole parental responsibility. Further, the court needed to establish residence orders for the children and set out detailed provisions for the time the children would spend with the father, particularly considering the differing ages and circumstances of the daughter and the son. The court also had to address issues relating to the children's passports and international travel.

Benjamin J ordered that all previous parenting orders be discharged. Ms Blakely, the mother, was granted sole parental responsibility for both children. This included decision-making authority regarding their education, religious and cultural upbringing, health, and names. However, this sole responsibility was qualified by requirements for the mother to consult with the father in writing on proposed major long-term decisions, consider his response, and inform him of her final decisions. The mother was also solely authorised to apply for and manage the children's Australian and Japanese passports, with specific provisions for their deposit with the Court and notification to the father. The court declared the children habitually resident in Australia for travel purposes and imposed restrictions on changing their place of residence beyond 50 kilometres of the B Town local government area without the father's consent or a court order.

The court ordered that the children reside with the mother in the B Town area. Specific arrangements were made for the daughter to spend time with the father only at times and under conditions agreed to in writing by the mother. For the son, more detailed time spent orders were established, including provisions for school terms, mid-year holidays, and Christmas/New Year holidays, with variations for different years and alternating arrangements.

Orders

Orders of the court

Previous parenting orders

1.

All previous parenting orders made in relation to Y born …2009 (‘the daughter’) and Z born … 2013 (‘the son’), collectively referred to as ‘the children’ are discharged.

Parental responsibility

2.

Ms Blakely (‘the mother’) shall have sole parental responsibility for the children.

(a) This sole parental responsibility Order shall include decisions about:-

i. the children’s education both current and future;

ii. the children’s religious and cultural upbringing;

iii. the children’s health; and

iv. the children’s names.

(b) This sole parental responsibility Order is subject to the following:-

i. where reasonably possible, the mother will contact the father in writing, including electronically, and provide him with her proposed decisions about any prospective major long term decisions concerning the children before making a final decision about any such issue;

ii. the mother will consider and take into account any reasonably prompt response she receives from the father when making her decision/s about any such issue/s;

iii. the mother will inform the father of any decision made by her about any such issue; and

(c) Such parental responsibility includes that the mother is solely permitted and authorised to apply for the issue and renewal of both Australian and Japanese passports for the children or either of them and she may do so without the father’s consent or authorisation.

(d) IT IS DECLARED for the purpose of any travel overseas that the children are habitually resident in Australia and that neither parent may change or seek to change the children’s place of habitual residence without the written consent of the other parent or an Order or Declaration by a Court exercising jurisdiction and power pursuant to the Family Law Act 1975 (Cth).

(e) IT IS ORDERED that the mother shall deposit the children’s passports, both Australian and Japanese, at the Cairns Registry of the Family Court for safe keeping within seven (7) days of their receipt by her on issue or re-issue of the passports or after the children’s return from overseas travel and shall inform the father by email within one (1) day of their deposit with the Court.

(f) Such parental responsibility does not include changing the children’s place of residence to a place beyond 50 kilometres outside the B Town local government area (‘the B Town area’) without the consent of the father or leave of a Court exercising jurisdiction and power pursuant to the Family Law Act 1975 (Cth).

Residence Order

3.

The children shall live the mother in the B Town area.

Spend time with Order

The daughter

4.

The daughter shall spend time with the father only at times and under conditions that are agreed to in writing by the mother.

The son

5.

The son shall spend time with the father at all times agreed between the parties in writing or failing agreement:

(a) During school terms as follows: -

i. from the date of these Orders until the commencement of school term one in 2022:-

1. from after school on Friday“(or 10.00 am Friday if it is a student free day) to 7.00 pm on each alternate Friday commencing the first week of school; and

2. between 9.00 am and 4.00 pm on each of the alternate Saturdays and Sundays commencing the second week of school;

ii. from the commencement of school term one in 2022:-

1. each alternate week from after school on Friday (or 10.00 am Friday if it is a student free day) to 4.00 pm on Sunday (or 4.00pm Monday if the Monday is a student free day or public holiday);

2. to commence on the first week of term if the son lived substantially with the mother the last week of the preceding school holiday and to commence the second week of term if the son spent time substantially with the father the last week of the preceding school holiday.

(b) During gazetted mid-year school holiday periods, as follows:-

i. for the years 2020 and 2021 in the Easter, mid-year and September/October school holiday periods, from 8.00 am to 4.00 pm on each of Wednesday, Thursday, Friday, Saturday and Sunday during the first week of each such school holiday period; and

ii. for the years 2022 and onwards for one half of the Easter, mid-year and September/October school holidays, being week one in 2022 and each alternate year thereafter and week two in 2023 and each alternate year thereafter.

(c) During gazetted Christmas/New Year school holiday periods, as follows:-

i. for the Christmas/New Year 2020/2021 school holiday period, during the second week of the school holidays between 8.00 am and 4.00 pm on each of Wednesday 23 December 2020, Thursday 24 December 2020, Friday 25 December 2020, Saturday 26 December 2020 and Sunday 27 December 2020 and each alternate Wednesday, Thursday, Friday, Saturday and Sunday until the start of term one in 2021;

ii. THE COURT NOTES that this 2020/2021 year is to include the son spending time with the father on Christmas Eve, Christmas Day and Boxing Day and is not to include the son spending time with the father on New Year’s Eve 2020 and the time spent is each day not cumulative days;

iii. for the Christmas/New Year 2021/2022 school holiday period, during the first week of the school holidays and each alternate week thereafter between 8.00 am and 4.00pm on each of Wednesday, Thursday, Friday, Saturday and Sunday until the start of term 1 in 2022;

iv. THE COURT NOTES that this 2021/2022 year is not to include the son spending time with the father on Christmas Eve, Christmas Day and Boxing Day and is to include the son spending time with the father on New Year’s Eve 2021 and the time spent is each day not cumulative days;

v. for Christmas/New Year 2022/2023 school holiday and each year afterwards the son shall spend time with the father on each alternate week from 10.00 am on Saturday until 10.00 am the following Saturday until at the latest the last Saturday before the commencement of the new school term and such time shall commence:-

1. the second week of school holidays in 2022/2023 and each alternate year thereafter, and

2. the first week of school holidays in 2023/2024 and each alternate year thereafter.

3.

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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