FAMILY COURT OF AUSTRALIA
| BOOKHURST & BOOKHURST | [2009] FamCA 6 |
| FAMILY LAW – CHILDREN – Whether presumption of equal shared parental responsibility rebutted – family violence and its interpretation – interpretation of s.61DA(2) - consideration of best interests of children per s.60CA and s.60CC – whether periods of time to be spent by father with children be supervised – terms and conditions of supervision |
| Evidence Act 1995 (Cth) s140 Family Law Act 1975 (Cth) ss 4(1), 60B, 60CA, 60CC, 61DA, 65AA Family Law Rules 2004 (Cth) s 15.49(2) Crimes Act 1900 (NSW) s562AE(1) Civil Liability Act 2002 (NSW) s 5B(2) |
| Commissioner for Railways (NSW) v Anderson (1961) 105 CLR 42 Heaven v Pender (1883) 11 QBD 503 King v Phillips (1953) 1 All ER 617 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 Wyong Shire Council v Shirt (1980) 146 CLR 40 V v V (2002) FLC 93-112 |
| APPLICANT: | Ms Bookhurst |
| RESPONDENT: | Mr Bookhurst |
| FILE NUMBER: | SYC | 1832 | of | 2007 |
| DATE DELIVERED: | 16 January 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | The Hon. Justice Rose |
| HEARING DATE: | 17-21 November 2008 and 5 December 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | D. Hausman |
| SOLICITOR FOR THE APPLICANT: | Karras Partners |
| COUNSEL FOR THE RESPONDENT: | S. Wheelhouse S.C. |
| SOLICITOR FOR THE RESPONDENT: | Slade Manwaring |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | A. Connor Legal Aid NSW |
Orders
That all current parenting orders in relation to the three children of the parties L born … November 1997, D born … June 1999 and S born … December 2000 (“the children”) are discharged.
That the parties have equal shared parental responsibility in relation to major long term issues concerning the children save and except that the mother shall have sole parental responsibility in relation to the health, religious and cultural upbringing of the children AND THAT pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
That the children live with the mother.
That the children spend time and communicate with the father as follows:
During school term
(a)On an unsupervised basis from 9.00am until 6.00pm each alternate Saturday commencing on the first Saturday at the end of the first week in each school term.
(b)On an unsupervised basis from after school until 7.00pm each alternate Wednesday commencing in the second week in each school term.
(c)On a supervised basis in lieu of Order 4(a) from 9.00am Saturday until 6.00pm Sunday each alternate weekend provided that:
(i)The supervisor shall be Mr P Bookhurst, Ms Z or another person agreed upon between the parties in writing.
(ii)The father has given the mother 14 days…
Continue reading Bookhurst & Bookhurst
Sign in free to access the full text
- AGLC
- Bookhurst & Bookhurst [2009] FamCA 6
- Case
- [2009] FamCA 6
- Decision Date
CaseChat Overview and Summary
The court was required to determine the terms of parenting orders, including the extent of equal shared parental responsibility, the specific living arrangements for the children, and the nature and frequency of the children's time with the father. Further issues included the conditions under which unsupervised time could occur, communication protocols between the parents and children, and specific suspensions of time arrangements related to religious observances and parental birthdays. The court also considered provisions for travel, notification of serious injury or illness, and restrictions on parental conduct in the presence of the children.
Rose J discharged all current parenting orders and established new arrangements. The parties were granted equal shared parental responsibility for major long-term issues, with the exception that the mother would have sole responsibility for the children's health, religious, and cultural upbringing. The children were ordered to live with the mother, with specific provisions for the father's time, including supervised and unsupervised periods, and communication arrangements. Crucially, the court stipulated that unsupervised overnight time with the father would only commence upon receipt of a psychiatric or psychological report confirming he posed no risk of abusive behaviour towards the children. The orders also included detailed provisions regarding communication, parental conduct, and notification requirements in various circumstances.
Orders
Orders of the court
1.
That all current parenting orders in relation to the three children of the parties L born … November 1997, D born … June 1999 and S born … December 2000 (“the children”) are discharged.
2.
That the parties have equal shared parental responsibility in relation to major long term issues concerning the children save and except that the mother shall have sole parental responsibility in relation to the health, religious and cultural upbringing of the children AND THAT pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
3.
That the children live with the mother.
4.
That the children spend time and communicate with the father as follows:
During school term
(a) On an unsupervised basis from 9.00am until 6.00pm each alternate Saturday commencing on the first Saturday at the end of the first week in each school term.
(b) On an unsupervised basis from after school until 7.00pm each alternate Wednesday commencing in the second week in each school term.
(c) On a supervised basis in lieu of Order 4(a) from 9.00am Saturday until 6.00pm Sunday each alternate weekend provided that:
(i) The supervisor shall be Mr P Bookhurst, Ms Z or another person agreed upon between the parties in writing.
(ii) The father has given the mother 14 days written notice or such other period of written notice as the parties may agree upon.
(d) The father shall take such of the children to and from all pre-arranged sport and social activities for that child or children during the periods of time that the children are in his care pursuant to these orders.
(e) On Father’s Day each year from 9.00am until 6.00pm should it fall on a day or a weekend when the children are not otherwise in his care.
(f) On the father’s birthday from 9.00am to 6.00pm in the event that it falls on a weekend day, not the subject of the orders and from the conclusion of school until 8.30pm in the event that the birthday falls on a week day.
(g) On the birthdays of the children from the conclusion of school or 3.00pm whichever last occurs until 8.30pm in the event that the relevant birthday falls on a weekday or on a day on a weekend when the children are not otherwise in his care.
(h) Such alternative or other periods of time as the parties may agree upon.
During end of term school holiday periods
(i) For five consecutive days from 9.00am until 6.00pm each day or for such other period of time or days as may be agreed upon between the parties in writing upon the following conditions:
(i) Each period is supervised by one or more of the persons referred in Order 4(c)(i).
(ii) The father gives the mother no less than 21 days written notice of the relevant period sought by him.
(iii) The father takes the child or children to and from all pre-arranged sport and social activity for that child or children.
(iv) The final day concludes at 6.00pm no later than the last Saturday prior to the commencement of the following school term.
(v) The father shall give the mother seven (7) days written notice of the relevant period sought by him in the current school holidays
5.
That Orders numbered 4(c) and 4(i)(i) are varied in that the period of time referred to shall be unsupervised and overnight as and from the expiration of seven (7) days from the date that the father furnishes the mother with a report from a psychiatrist or pyschologist which states:
(a) The name, place of practice, qualifications, and experience in providing adult therapy.
(b) The Reasons for Judgment given this day has been read by him/her.
(c) The nature and extent of therapeutic treatment provided to the father.
(d) The unqualified opinion that the father does not nor is it reasonably forseeable that he will pose a risk to the three children or any of them of him of engaging in abusive behaviour, physical or emotional to or in the presence or hearing of the children or any of them regardless of the period of time including overnight periods that may be spent by such children or child in the care of the father.
6.
That the children shall communicate with the father by telephone on each Tuesday and Thursday between the hours of 6.00pm to 7.00pm or as otherwise agreed from time to time and for the purpose of such communications:
(a) The mother shall ensure that the children have access to her landline or mobile telephone number and that one or the other is available to the children at the specified time.
(b) The father shall telephone the children on either the mother’s landline or mobile telephone number at the time specified or in the absence of a child the mother will ensure that the child will return his call as soon as possible.
(c) The mother shall use her best endeavours to encourage the children to speak to the father.
7.
That the Orders which provide for the children to spend periods of time and communicate with the father are suspended as follows:
(a) On the mother’s birthday for the whole of the day should it fall on a day during which the children are due to be in the care of the father pursuant to these Orders.
(b) The whole of the day on which the following Jewish religious services / holidays / celebrations take place:
(i) First and second days and nights of Pesach
(ii) First and second days and nights of Rosh Hashanah
(iii) The eve, day and night of Yom Kippur
(iv) The first night of Chanukah
(v) The first day and night of Succot
(vi) Purim
(vii) Simchat Torah
(viii) The Bar Mitzvah or Bat Mitzvah of the two eldest children and the youngest child respectively
8.
That in the event of the father wanting to travel with the children in Australia during the school holiday period that they are due to spend in his care he shall provide 14 days written notice to the mother of the destination, description and place of accomodation and telephone number relevant to such travel.
9.
That for the purpose of orders providing for time to be spent by the father with the three children, unless otherwise agreed, the mother or her nominee shall take the children to the front of the father’s premises and collect them from such place or any other place agreed upon between the parties.
10.
That the father shall, in the event that the children ask, facilitate the children telephoning the mother during any period when they are in his care.
11.
That the father is hereby restrained from:
(a) Discussing these proceedings with or in the presence or hearing of the children or any of them.
(b) Denigrating or making any critical or adverse comment about the mother or any members of her family or friends or any professional that the children or any of them are consulting in the presence or hearing of the children or any of them and he shall use his best endeavours to ensure that no other person conducts himself or herself in that fashion.
12.
That the father and mother shall inform each other in writing of their current residential address, telephone number and email address and shall notify the other in writing of any change in these details at least seven (7) days prior to such change.
13.
That all communications between the parties shall be via email in the first instance but if not practicable then by sms text or telephone call.
14.
That in the event of the three children or any of them suffering a serious injury or illness whilst in the care of one of the parties then that party shall immediately notify the other party of the nature of such injury or illness and the name address and telephone number of the relevant hospital or medical practitioner.
15.
That each of the parties may publish copies of the following documents to the health professional consulted by him or her or the three children or any of them:
(a) These orders.
(b) The Reasons for Judgment given this day.
(c) The reports of Associate Professor Q dated 12 December 2007 and 10 July 2008.
16.
That all documents produced on subpoena may be returned to the person who produced the same.
17.
That the proceedings be removed from the active pending cases list.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.