FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Broadley & Larch [2022] FedCFamC2F 631
File number(s): MLC 4701 of 2020 Judgment of: JUDGE HARLAND Date of judgment: 18 May 2022 Catchwords: FAMILY LAW – parenting – competing live with applications –parental responsibility – parents’ poor communication –needs of the children –whether or not needs have been neglected. Legislation: Family Law Act 1975 (Cth) pt VII, ss 60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA. Cases cited: Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] 240 CLR 461
Waterford & Waterford [2013] FamCA 33
American Psychiatric Association Autism Diagnosis Criteria: DSM-5, 5th edition Diagnosis and Statistical Manual of Mental Disorder
Division: Division 2 Family Law Number of paragraphs: 190 Date of last submission/s: 1 April 2022 Date of hearing: 31 January 2022, 1, 2 and 18 February 2022, 11 March 2022. Place: Melbourne Counsel for the Applicant: Ms Jardine Counsel for the Respondent: Ms Daly Solicitor for the Applicant: Hope Earle Lawyers Solicitor for the Respondent: Aboriginal Family Violence Prevention & Legal Service ORDERS
MLC 4701 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BROADLEY
Applicant
AND: MS LARCH
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
18 MAY 2022
THE COURT ORDERS THAT:
1.The mother and father exercise equal shared parental responsibility for the children X born in 2013, Y born in 2015 and Z born in 2019
2.The children live with the mother.
3.The children spend time with the father as follows:
(a)During the Victorian Gazetted School Term 2 and School Term 3 in 2022:
(i)Each Wednesday from the conclusion of school/daycare, or 3.30pm if a non-school day, until the commencement of school the following day, or 9.00am if a non-school day.
(ii)Each alternate weekend from the conclusion of school/daycare on Friday, or 3.30pm if a non-school day, until Sunday evening at 6.00pm.
(b)From the commencement of the Victorian Gazetted School Term 4 in 2022:
(i)Each Wednesday from the conclusion of school/daycare, or 3.30pm if a non-school day, until the commencement of school the following day, or 9.00am if a non-school day.
(ii)Each alternate weekend from the conclusion of school/daycare on Friday, or 3.30pm if a non-school day, until the commencement of school Monday morning, or 9.00am if a non-school day.
4.During the Victorian Gazetted Term School Holidays in 2022:
(a)X and Y spend time with the father for the second half;
(b)Z spend time with the father for the first four nights X and Y spend time during the second week as per (4)(a), returning to the mother at 5.00pm on the fifth day.
5.Commencing from the Term 1 School Holidays in 2023, the children spend time with the parties during the Victorian Gazetted Term School Holidays, on an equal basis as agreed between the parties in writing, and failing agreement as follows:
(a)From the Term 1 School Holidays 2023 and each odd year thereafter:
(i)For the second half of the…
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CaseChat Overview and Summary
The court found that both parents had failed to communicate effectively, which had adversely affected the children. Despite this, the court concluded that the children's needs had not been neglected, as both parents were committed to their welfare. In deciding the parenting arrangements, the court emphasised the importance of the children having a relationship with both parents and sought to create a balanced and equitable arrangement. The court ordered equal shared parental responsibility and specified detailed time-sharing arrangements, including time during school terms and holidays, as well as provisions for special occasions and communication between the parents.
The court's decision provided a structured and detailed parenting plan designed to ensure the children have meaningful and consistent contact with both parents. The orders included specific provisions for changeovers, communication, and the use of a parenting app to facilitate information exchange between the parents. The court also made provisions to protect the children from exposure to conflict and to ensure they were not used as messengers between the parents. The orders reflected a careful consideration of the children's needs and the parents' ability to co-parent effectively.
Orders
Orders of the court
MLC 4701 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR BROADLEY
Applicant
AND:
MS LARCH
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
18 MAY 2022
THE COURT ORDERS THAT:
1. The mother and father exercise equal shared parental responsibility for the children X born in 2013, Y born in 2015 and Z born in 2019
2. The children live with the mother.
3. The children spend time with the father as follows:
(a) During the Victorian Gazetted School Term 2 and School Term 3 in 2022:
(i) Each Wednesday from the conclusion of school/daycare, or 3.30pm if a non-school day, until the commencement of school the following day, or 9.00am if a non-school day.
(ii) Each alternate weekend from the conclusion of school/daycare on Friday, or 3.30pm if a non-school day, until Sunday evening at 6.00pm.
(b) From the commencement of the Victorian Gazetted School Term 4 in 2022:
(i) Each Wednesday from the conclusion of school/daycare, or 3.30pm if a non-school day, until the commencement of school the following day, or 9.00am if a non-school day.
(ii) Each alternate weekend from the conclusion of school/daycare on Friday, or 3.30pm if a non-school day, until the commencement of school Monday morning, or 9.00am if a non-school day.
4. During the Victorian Gazetted Term School Holidays in 2022:
(a) X and Y spend time with the father for the second half;
(b) Z spend time with the father for the first four nights X and Y spend time during the second week as per (4)(a), returning to the mother at 5.00pm on the fifth day.
5. Commencing from the Term 1 School Holidays in 2023, the children spend time with the parties during the Victorian Gazetted Term School Holidays, on an equal basis as agreed between the parties in writing, and failing agreement as follows:
(a) From the Term 1 School Holidays 2023 and each odd year thereafter:
(i) For the second half of the school holidays with the Father.
(b) From the Term 1 School Holidays in 2024 and each even year thereafter:
(i) For the first half of the school holidays with the Father.
6. The children spend time with the parties during the Victorian Gazetted Summer School Holidays on an equal basis as agreed between the parties in writing, and failing agreement as follows:
(a) In year 2022 and each even year thereafter:
(i) For the first week of the school holidays with the Mother and each alternate week thereafter; and
(ii) For the second week of the school holidays with the Father and each alternate week thereafter.
With changeover to occur weekly at 6.00pm Friday.
(b) In year 2023 and each odd year thereafter:
(i) For the first week of the school holidays with the Father and each alternate week thereafter; and
(ii) For the second week of the school holidays with the Mother and each alternate week thereafter.
With changeover to occur weekly at 6.00pm Friday.
7. For all the children’s birthdays, all children will spend time with the parent with whom they are not living or otherwise spending time, between 2.00 pm and 6.00 pm, unless the birthday is on a school day, in which case the time will commence at 3.30 pm and conclude at 6.00 pm.
8. For Mother’s Day and Father’s Day, in the event that the children are not with the relevant parent, the children will spend time with the relevant parent from 10.00am to 6.00 pm.
9. The parents are to facilitate a child to call the other parent whose care they are not currently in at the child’s request at reasonable times.
10. Changeovers that do not occur at the children’s school or childcare are to occur at B Park located at C Street, Suburb D or as otherwise agreed in writing.
11. Neither party will make any abusive, insulting rebuking or denigrating remarks or discuss the proceedings or any disputes between the parties in the presence or hearing of any of the children, nor allow any other party to do so.
12. Neither party will use physical discipline on any of the children, nor expose any of the children to family violence and will not allow any other person to do any of these things.
13. The parties will use an agreed parenting app to exchange all non-urgent information, including but not limited to the children’s routine and medical appointments.
14. The parties are to agree on a parenting app within seven days of the date of these orders.
15. In the event the parties are unable to agree on a parenting app, within a further seven days of the date in order 14, the father shall nominate three parenting apps. Within a further seven days, the mother shall choose one and the parents shall use that app.
16. Each party will communicate to the other party: the bedtime routines, the medical requirements and the dietary requirements of each child and will follow the recommendations of any health or educational professional in relation to each child.
17. Neither party will use any of the children to try to make any amendments to the arrangements set out in these Orders. In the event any child requests that they do so, the party will decline to comply with that request.
18. Each party will, as soon as practicable inform the other party of all medical, psychological and educational assessments and treatments provided to any of the children while the children are in their care.
19. In the event any of the children suffers from serious illness or injury when in one of the parent’s care. That parent will notify the other parent as soon as is practicable and will give permission to the child’s treating health professional to communicate with the other parent.
20. Each party is permitted to attend all school functions to which parents are invited. Each party may obtain school newsletters, photos and the like at his or her expense.
21. Each party will notify the other party within 24 hours of any change of address, phone number or email address.
22. Each party is at liberty to provide a copy of these orders and reasons to any family counsellor or other medical professional they engage.
AND THE COURT NOTES THAT:
A. The parties will ensure that the children attend and engage in appropriate Aboriginal heritage activities as organised by VACCA and other Aboriginal organisations.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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