FAMILY COURT OF AUSTRALIA
| BOYD & SAGE (NO. 2) | [2020] FamCA 692 |
| FAMILY LAW – INTERIM PARENTING – where child returned from Scotland pursuant to 1980 Hague Abduction Convention – where the taking parent (mother) proposes that she and the child reside an hour’s drive from the school previously attended by the child – where father seeks that mother be required to reside in reasonable proximity of child’s former school and the child return to that school FAMILY LAW – RESTRAINT ON FREEDOM OF MOVEMENT – where restraint on a primary carer’s freedom of movement can be effected directly by injunction pursuant to s 114(3) of the Family Law Act 1975 or indirectly by a parenting order – where exercise by the court of both powers is limited to circumstances where the best interests of the child require that the primary carer be so restrained FAMILY LAW – INTERIM PARENTING – where the court accepts the evidence of the family consultant that, optimally, the child should return to her previous school and the mother and child should live in reasonable proximity to the school – where mother’s proposal means that the child will have less direct contact with the father - where court is satisfied that child’s best interests can still be accommodated on mother’s proposal – where orders made in child’s best interests does not necessarily equate to the best available outcome for the child FAMILY LAW – INTERIM PARENTING – where best interest of the child as the paramount consideration does not preclude the court taking into account the legitimate wishes, rights and freedoms of the primary carer FAMILY LAW – INTERIM PARENTING - where parents are not required to re-enrol the child at her previous school and no restraint or conditions are imposed on the child or the mother |
| Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| A & A: Relocation Approach [2000] FamCA 751 Boyd & Sage [2020] FamCA 482 Godfrey & Sanders [2007] FamCA 102 M & S [2006] FamCA 1408 Sampson and Hartnett (No 10)(2007) FLC 93-350 |
| APPLICANT: | Ms Boyd |
| RESPONDENT: | Mr Sage |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Lonergan |
| FILE NUMBER: | MLC | 5782 | of | 2020 |
| DATE DELIVERED: | 18 August 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 11 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Allen |
| SOLICITOR FOR THE APPLICANT: | Knight Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Robinson |
| SOLICITOR FOR THE RESPONDENT: | Kennedy Partners |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Hutchings |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: | Victoria Legal Aid |
Orders
IT IS ORDERED THAT
The mother inform the father in writing of the current residential address of the child X born … 2013 and advise the father and keep the father advised in writing of any change to X’s residential address as soon as possible but, in any event, not less than seven clear days prior…
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- AGLC
- Boyd and Sage (No 2) [2020] FamCA 692
- Case
- [2020] FamCA 692
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to impose a restraint on the primary carer's freedom of movement, either directly by injunction or indirectly through a parenting order, and whether such a restraint was necessary in the best interests of the child. The court also had to consider how to balance the paramount consideration of the child's best interests with the legitimate wishes, rights, and freedoms of the primary carer.
Bennett J accepted the family consultant's evidence that, optimally, X should return to her previous school and reside in reasonable proximity to it. However, the court was satisfied that X's best interests could still be accommodated on the mother's proposal, even though it meant less direct contact with the father. The court noted that orders made in a child's best interests do not necessarily equate to the best available outcome. Ultimately, the court did not impose any restraint or conditions on the mother or X regarding their residence or re-enrolment at the previous school.
The court made orders by consent regarding equal shared parental responsibility, with X living with the mother. Specific provisions were made for X's time with the father, including alternating weekends and Thursdays, half of school holidays, Father's Day, and Christmas Day, with provisions for suspension during school holidays and specific arrangements for changeovers. The orders also included provisions for communication between the parents and with X, the mother's compliance with mental health treatment, injunctions restraining denigration and discussion of proceedings in X's presence, and requirements for paediatric assessment and parenting courses.
Orders
Orders of the court
IT IS ORDERED THAT
1.
The mother inform the father in writing of the current residential address of the child X born … 2013 and advise the father and keep the father advised in writing of any change to X’s residential address as soon as possible but, in any event, not less than seven clear days prior to any such change
2.
The mother forthwith provide to the independent children’s lawyer a copy of any lease of residential property entered into by her.
3.
If issues arise with the implementation and/or operation of these Orders, including but not limited to issues of contravention, and those issues cannot be resolved by agreement, any application may be listed before me for directions in accordance with arrangements made with my associate, …, ….
IT IS FURTHER ORDERED, BY CONSENT, THAT UNTIL FURTHER ORDER:
4.
The parents have equal shared parental responsibility for the child, X.
5.
X live with the Mother.
6.
X spend time with the Father as follows:
(a) Each alternate weekend from the conclusion of school (or 3:30 pm if X is not in physical attendance at school) on Thursday until the commencement of school (or 5.00 pm if X is not in physical attendance at school) on Monday commencing 13 August 2020;
(b) Each alternate Thursday from the conclusion of school (or 3:30 pm if X is not in physical attendance at school) until the commencement of school (or 5.00 pm if X is not in physical attendance at school) on Friday commencing 20 August 2020;
(c) One half of X's school holidays on dates and times as may be agreed upon between the parties in writing but in default of agreement, the first half;
(d) On the Fathers’ Day weekend from 5:00 pm on Saturday until the commencement of school (or 5.00 pm if X is not in physical attendance at school) on Monday;
(e) On Christmas Day in each year as follows:
(i) From 4:00 pm on Christmas Eve until 2:00 pm on Christmas Day in 2020 and alternating yearly thereafter; and
(ii) From 2:00 pm on Christmas Day until 4:00 pm on Boxing Day in 2021 and alternating yearly thereafter;
(f) Such further or other time as may be agreed upon between the parties in writing.
7.
X’s time with the Father pursuant to paragraph 6 (a) and (b) of this Order be suspended during all Victorian gazetted school term and long summer school holidays and recommence after the holidays in the same cycle as if the holidays had not occurred.
8.
X’s time with the Father be suspended at the following times to enable X to spend time with the Mother if X is not otherwise in the Mother’s care:
(a) On Christmas Day in each year as follows:
(i) From 2:00 pm on Christmas Day until 4:00 pm on Boxing Day in 2020 and alternating yearly thereafter;
(ii) From 4:00 pm on Christmas Eve until 2:00 pm on Christmas Day in 2021 and alternating yearly thereafter; and
(b) On the Mothers Day weekend from 5:00 pm on Saturday until the commencement of school (or 5.00 pm if the X is not in physical attendance at school) on Monday; and
(c) Such further or other time as may be agreed upon between the parties in writing.
9.
Save as otherwise agreed between the parents in writing, changeovers take place at school on days X attends school and otherwise:
(a) If the Mother moves her residence to the north-eastern suburbs of metropolitan Melbourne, all changeovers take place at a public place, to be agreed upon in writing, approximately midway between the parties' respective residences but in default of agreement, the Father collect X from the Mother's residence at the commencement of his time and the Mother collect X from the Father's residence at the conclusion of the Father's time;
(b) While the Mother resides in Suburb G, changeover take place at the service station on C Street.
10.
Save as otherwise agreed between the parents in writing, the Father communicate with X by telephone or FaceTime each alternate Wednesday and Saturday between 6:00 pm and 6:30 pm when X is in the Mother’s care with the Father to place the call to the Mother’s telephone and the Mother to encourage and facilitate the communication.
11.
Save as otherwise agreed between the parents in writing, X communicate with the Mother by telephone or FaceTime each alternate Saturday between 6:00 pm and 6:30 pm when X is in the Father’s care with the Mother to place the call to the Father’s telephone and the Father to encourage and facilitate the communication.
12.
The Mother do all such acts and things necessary to continue to attend on:
(a) The Mother’s treating psychiatrist, Dr E, or Dr E’s nominee; and
(b) The Mother’s treating psychologist, Dr F, or Dr F’s nominee (“the mother’s treating mental health practitioners) with such frequency and for such duration as the mother’s treating mental health practitioners recommend.
13.
The Mother comply with all lawful recommendations made by her treating mental health practitioners including but not limited to taking all medication as prescribed.
14.
Both parties be and are hereby restrained by injunction from:
(a) Abusing, insulting, belittling, rebuking or otherwise denigrating each other either directly in person, or in writing, or in the presence or hearing of X and from knowingly permitting any other person to do so; and
(b) Discussing these proceedings either directly or in the presence or hearing of X and from knowingly permitting any other person to do so.
15.
The parties do all things necessary to facilitate X's attendance upon a paediatrician agreed between the parents and failing agreement as appointed by the Independent Children's Lawyer for the purpose of a paediatric assessment and report and the parties each pay one half of the cost of the assessment and report.
16.
Save as otherwise agreed between the parents in writing, the parents communicate about X in writing via SMS text message, save in the case of an emergency when the parents shall communicate by telephone.
17.
The parents keep each other informed of their mobile telephone numbers in writing and notify each other of any change 24 hours prior to the change if practicable and otherwise as soon as possible after the change.
18.
The parents keep each other informed of the following in writing:
(a) All serious illnesses, accidents, medical conditions, or hospitalisations with respect to X whilst she is each parent’s respective care; and
(b) All medication prescribed to X and/or all medication administered to X whilst she is in their respective care in the 24 hours prior to any changeover, including the date and time the medication was administered; and
(c) The names and contact details for X’s treating medical, dental, and other allied health professionals.
19.
Both parents be at liberty to:
(a) Obtain school reports, school photographs, correspondence, newsletters, and reports from X’s school at the requesting parents’ expense;
(b) Communicate with staff at X’s school in such manner as the school prescribes and expects;
(c) Communicate with X’s treating medical practitioners in such manner as the practitioners prescribe and expect; and
(d) Attend all school events (including parent teacher interviews) and extra curricula activities pertaining to X parents are ordinarily invited to attend.
20.
As soon as practicable, both parents do all such acts and things necessary to attend and complete an approved Parenting After Separation Course and provide a certificate of completion to the other parent and to the Independent Children’s Lawyer.
IT IS FURTHER ORDERED BY THE COURT THAT:
21.
The mention listed for Thursday 19 August 2020 be and is hereby vacated.
22.
This matter otherwise be listed for mention before me on Thursday 18 March 2021 at 9.00 am.
23.
Pursuant to s.65DA(2) and s.62B of the 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 the parties adjust to and comply with an order are set out in the Attachment A hereto and these particulars are included in these orders.
AND THE COURT NOTES:
A. This matter remain in her Honour Justice Bennett’s docket.
B. The parties intend that Orders 6(a) to 6(d) remain in full force and effect for the duration of X’s remote learning and they shall review Orders 6(a) to 6(d) immediately prior to X’s return to on-site learning.
A. The parties seek that this matter be listed for mention and directions in March 2021 to canvass the trajectory of this matter.
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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