FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLYTHE & BLYTHE | [2018] FCCA 66 |
| Catchwords: FAMILY LAW – Parenting – relocation – best interests. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA, 69ZT, 65DAC |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Sayer & Radcliffe & Anor [2012] FamCAFC 2096 Starr & Duggan [2009] FamCAFC 115 |
| Applicant: | MR BLYTHE |
| Respondent: | MS BLYTHE |
| File Number: | SYC 5800 of 2015 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 17, 18, 19 and 23 May 2017 |
| Date of Last Submission: | 23 May 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 8 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenny |
| Solicitors for the Applicant: | Campbell Paton & Taylor |
| Counsel for the Respondent: | Dr Brasch SC |
| Solicitors for the Respondent: | Pearson Emerson Meyer Family Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Simpson |
| Solicitors for the Independent Children's Lawyer: | Thompson Madden Solicitors |
ORDERS
All previous orders are discharged.
The children X born (omitted) 2009 and Y born (omitted) 2010 shall live with the father.
The father shall have sole parental responsibility for the children.
The children shall spend time with the mother as agreed between the parties, and in the absence of agreement as follows:
(a)During school terms and starting the first Friday of the school term each alternate weekend from Friday after school to 5pm on Sunday or 5pm Monday if Monday is a public holiday or pupil free day;
(b)For all of the end of Term 2 school holidays being from 5.30pm on the last day of school until 5.30pm on the Sunday prior to school returning;
(c)For half of the other school holidays, being for the first half in odd numbered years and the second half in even numbered years; and
(d)At all other times as agreed to between the parties in writing.
The children shall spend time with each parent on special occasions as agreed and failing agreement as follows:
(a)In the event that Mother’s Day falls outside of the children’s time with the mother, the children shall spend time with the mother on the Mother’s Day weekend from after school on Friday until 5pm on Sunday, and the father’s time with the children will be suspended.
(b)In the event that Father’s Day falls outside of the children’s time with the father, the children will spend time with the father on the Father’s Day weekend and the mother’s time with the children will be suspended.
The changeover shall be agreed by the parties and if no agreement is made, changeover shall occur at (omitted)…
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- BLYTHE & BLYTHE [2018] FCCA 66
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- [2018] FCCA 66
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CaseChat Overview and Summary
The central legal issues before the court were to determine the primary residence of the children, who should hold parental responsibility, and to establish a detailed schedule for the children's time with each parent, including provisions for school holidays, special occasions, and communication. The court also had to consider injunctive orders to protect the children from exposure to parental disputes and allegations, and to address the costs associated with a single expert report.
Judge Obradovic ordered that the children, X and Y, shall live with the father and that the father shall have sole parental responsibility. A comprehensive schedule was set for the children's time with the mother, including alternate weekends during school terms, specific periods during school holidays, and provisions for special occasions like Mother's Day and Father's Day. The court also made orders regarding changeovers, telephone communication, notification of address changes and emergencies, and medical appointments. Crucially, injunctive orders were made restraining both parents from discussing disputes, alleged abuse, or the children's preferences in the children's presence, and from engaging in abusive or demeaning conduct towards the other parent in front of the children. Finally, the father was ordered to reimburse the mother 50% of the single expert's expenses.
Orders
Orders of the court
1.
All previous orders are discharged.
2.
The children X born (omitted) 2009 and Y born (omitted) 2010 shall live with the father.
3.
The father shall have sole parental responsibility for the children.
4.
The children shall spend time with the mother as agreed between the parties, and in the absence of agreement as follows:
(a) During school terms and starting the first Friday of the school term each alternate weekend from Friday after school to 5pm on Sunday or 5pm Monday if Monday is a public holiday or pupil free day;
(b) For all of the end of Term 2 school holidays being from 5.30pm on the last day of school until 5.30pm on the Sunday prior to school returning;
(c) For half of the other school holidays, being for the first half in odd numbered years and the second half in even numbered years; and
(d) At all other times as agreed to between the parties in writing.
5.
The children shall spend time with each parent on special occasions as agreed and failing agreement as follows:
(a) In the event that Mother’s Day falls outside of the children’s time with the mother, the children shall spend time with the mother on the Mother’s Day weekend from after school on Friday until 5pm on Sunday, and the father’s time with the children will be suspended.
(b) In the event that Father’s Day falls outside of the children’s time with the father, the children will spend time with the father on the Father’s Day weekend and the mother’s time with the children will be suspended.
6.
The changeover shall be agreed by the parties and if no agreement is made, changeover shall occur at (omitted) Park, (omitted), New South Wales.
7.
The parents shall have telephone communication including Facetime and Skype with the children as agreed, and failing agreement between 6pm and 6.30pm each Wednesday and Saturday.
8.
Each parent will notify the other of any change in their residential address or contact telephone number 48 hours before such changes occur.
9.
Each parent will inform the other as soon as practically possible, by email and phone, of any emergencies including urgent medical interventions involving the children while the children are in the relevant parent’s care.
10.
Each parent will notify the other of any attendance by the children on any doctor or medical professional as soon as practicable.
11.
Each party is restrained by injunction from doing anything to or discussing in the presence of the children or with any other party the following:
(a) Any dispute between the parties;
(b) Any alleged abused by Mr E involving the children;
(c) Any investigation by FACS, JIRT or any other organisation about the alleged abuse by the said Mr E; and
(d) The children’s preference to live with either parent.
12.
Each party is restrained by injunction from doing anything to or in the presence of the children which is in any way abusive, belittling or demeaning of the other parent or the other parent’s family nor allowing any other person to do so in the presence or hearing of the children.
13.
Within 28 days the father is to reimburse to the mother the sum of $3,300 being 50% of the single expert, Dr L’s, expenses for preparing her report for these proceedings.
14.
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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