FAMILY COURT OF AUSTRALIA
| BROWN & CRAWFORD | [2009] FamCA 96 |
| FAMILY LAW - CHILDREN - Best interests of the child - Relocation - With whom a child lives - With whom a child spends time - Supervised contact FAMILY LAW - POWERS OF THE FAMILY COURT - Inherent power to make orders regulating Court’s own process - Restrictions on mother bringing further proceedings |
| Family Law Act 1975 (Cth) |
| AIF v AMS (1999) 199 CLR 160 |
| APPLICANT: | Mr Brown |
| RESPONDENT: | Ms Crawford |
| INDEPENDENT CHILDREN’S LAWYER: | Gary Couper Solicitor |
| FILE NUMBER: | BRC | 5081 | of | 2008 |
| DATE DELIVERED: | 19 February 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 9-10 February 2009 |
REPRESENTATION
| APPLICANT FATHER: | Appearing in person |
| RESPONDENT MOTHER: | Appearing in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Carmody |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Gary Couper Solicitor Brisbane |
Orders
All previous parenting orders be discharged.
The Application in a Case filed by the mother on 29 January 2009 be dismissed.
The Independent Children’s Lawyer be discharged upon the carrying out of the requirements imposed by these orders, or on a date three months from the date of these orders, whichever is the sooner.
Parental responsibility
Save as otherwise provided in these orders in respect of the child’s name, the father shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that the father shall, prior to making the sole ultimate decision about any such issue:
(a)Use his best endeavours to advise the mother in writing of the decision intended to be made;
(b) Seek the mother’s written response in relation thereto;
(c)Consider, by reference to the best interests of the child, any such response prior to making any such decision;
(d)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
The parties shall each do all such things,…
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- Brown & Crawford [2009] FamCA 96
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- [2009] FamCA 96
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CaseChat Overview and Summary
The court was required to determine the extent of parental responsibility for major long-term issues, the primary residence of the child, the nature and location of the mother's time with the child, and the process for managing communication between the parents and the child. Additionally, the court had to consider the child's name and the father's application for injunctions, as well as impose restrictions on the mother bringing further proceedings.
Murphy J reasoned that the father should have sole parental responsibility for major long-term issues, subject to a requirement to consult with the mother and consider her written response before making a final decision. The child was ordered to live with the father, including upon his relocation to Melbourne. The mother's time with the child was to be supervised at a contact centre, with specific provisions for weekend contact in Melbourne and alternate weekend contact if the father resided in South-East Queensland. The court also made detailed orders regarding communication between the parents and the child, including provisions for mail and email, and dismissed the father's application regarding the child's name, noting the child was referred to by different names by each parent.
The court ordered the discharge of all previous parenting orders and dismissed the mother's application. The Independent Children's Lawyer was to be discharged upon completion of certain requirements or three months from the date of the orders. Crucially, the mother was restrained from instituting further proceedings for parenting orders without leave of the court, with specific procedural requirements for any such application. The father's applications for injunctions, save as otherwise provided, were dismissed.
Orders
Orders of the court
1.
All previous parenting orders be discharged.
2.
The Application in a Case filed by the mother on 29 January 2009 be dismissed.
3.
The Independent Children’s Lawyer be discharged upon the carrying out of the requirements imposed by these orders, or on a date three months from the date of these orders, whichever is the sooner.
Parental responsibility
4.
Save as otherwise provided in these orders in respect of the child’s name, the father shall have sole parental responsibility in respect of all “major long term issues” (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that the father shall, prior to making the sole ultimate decision about any such issue:
(a) Use his best endeavours to advise the mother in writing of the decision intended to be made;
(b) Seek the mother’s written response in relation thereto;
(c) Consider, by reference to the best interests of the child, any such response prior to making any such decision;
(d) Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
5.
The parties shall each do all such things, sign all such documents and each pay any charges or fees as are reasonably necessary to:
(a) Keep the other informed of their current residential address;
(b) Keep the other informed of each and all doctors, health professionals, educational institutions, counsellors, therapists and extra-curricular activities which the child attends or undertakes as the case may be;
(c) Immediately advise the other in the event that the child sustains any serious injury or suffers any serious illness;
(d) Authorise any person, institution or body referred to in the previous sub-paragraph to provide to the other parent any and all such information in respect of the treatment of the child, or his activities as the case may be, as the other parent might reasonably require;
(e) Have the child’s school/s provide to the other parent a copy of the child’s report cards, together with any other written report issued by the school in respect of the child;
(f) Authorise any school or educational institution, teacher, tutor or other educational professional to provide to the other parent any and all such information in respect of the progress of the child, including, but not limited to, his social, sporting and extra-curricular activities as the other parent might reasonably require.
6.
In order to give better effect to these Orders, a copy of these orders and the Court’s reasons for judgment be approved for publication to each of the persons or institutions referred to in sub-paragraph (b) of the previous order, and the contact centres hereafter referred to, but the publication of no other “account of the proceedings” within the meaning of s 121 of the Act is approved.
7.
The Independent Children’s Lawyer shall request from the mother or father, as the case may be, a list of such persons or institutions referred to in Order (5) currently attended by the child and each party shall forthwith comply with any such request and, thereafter, the Independent Children’s Lawyer shall provide each such person or institution with a copy of these orders and the Court’s reasons.
8.
As and from the date of discharge of the appointment of the Independent Children’s Lawyer in accordance with these orders each of the parties shall do all such things as are necessary to give effect to Order (5) from time to time.
Live with and Time
9.
The child shall live with the father including upon the relocation of the father to Melbourne.
10.
The child shall spend time with the mother at all such times as might be agreed in writing but otherwise as provided for in the succeeding paragraphs of these Orders:
A. UPON THE RELOCATION OF THE FATHER TO MELBOURNE:
(a) The mother’s time with the child be supervised at a contact centre as hereafter provided;
(b) The mother spend time with the child on three week-ends per year provided that the mother first notifies the father in writing (“the written notice”) not less than 28 days in advance of the dates on which she intends to spend time with the child and shall include in the written notice, the times at which she has arranged with the contact centre for time to commence and conclude during each such weekend;
(c) The said time be for such maximum time as the contact centre can accommodate during each such weekend;
(d) The father shall forthwith advise the Independent Children’s Lawyer of his intended address in Melbourne and any information in his possession as to contact centres in the proximity of that address;
(e) Upon receipt of the written notice in respect of the first intended period of time:
(i) the father shall further take all such steps as might be necessary to consult with the Independent Children’s Lawyer and, in consultation with him, agree upon an appropriate contact centre in Melbourne for the purposes of these Orders; and
(ii) the parties shall each do all such things, sign all such documents and the mother shall pay all such fees as are reasonably necessary to register the parties and child at the Contact Centre referred to in the previous sub-paragraph of these Orders;
(f) Upon receipt of each written notice in respect of each period of time provided for in these orders, the father will provide the mother with a return airline ticket to be delivered to the mother’s post office box address no less than 14 days prior to the mother’s departure.
B. IN THE EVENT THAT THE FATHER AND CHILD RESIDE IN SOUTH-EAST QUEENSLAND
11.
The father shall forthwith advise the mother in writing of his intention to take up residence in South-East Queensland, the intended date of that occurrence and the address at which he and the child will be residing.
12.
Upon the father and child commencing to reside in South-East Queensland, the mother shall spend time with the child in accordance with the succeeding provision of these orders.
13.
The mother shall, within 14 days of the father taking up residence, notify the father in writing, at the address contemplated by Order (11), of her intention to exercise time in accordance with the succeeding provisions of these Orders.
14.
Provided that the mother gives the written notice referred to in the previous order:
(a) time with the child shall take place supervised at a contact centre to be agreed upon between the parties in writing, and, in default of agreement, at the N Contact Centre;
(b) the parties shall each do all such things, sign all such documents and the mother shall pay all such fees as are reasonably necessary to register the parties and child at the Contact Centre referred to in the previous sub-paragraph of these Orders;
(c) time shall occur each alternate weekend, commencing on the first occasion upon which the contact centre can accommodate time and be for such maximum time as the contact centre can accommodate during each such weekend.
Communication - Mail and Email
15.
The mother be at liberty to communicate with the child by mail and e-mail at all such reasonable times as she might wish.
16.
The father shall retain each written communication and a hard copy of each e-mail communication until the child attains the age of 18, including any considered inappropriate as referred to in the succeeding orders.
17.
The father is at liberty to read all such communications and, should he consider them inappropriate in the child’s best interests, having first considered the child’s age and stage of maturity and development, he be at liberty to not pass same on to the child provided he (as soon as reasonably possible thereafter) gives written notice to that effect to the mother.
18.
In the case of e-mail communication, in the event that there are two consecutive communications considered inappropriate as referred to in the previous Order, the father be at liberty to take steps to prevent further e-mail communications provided he first gives notice to that effect to the mother and encloses with that written notice a copy of each of the two e-mails considered by him to be inappropriate.
The Child’s Name
19.
UPON NOTING THAT the child is referred to by different names by each of his parents when in their respective care, the application by the father for orders in respect of the child’s name is dismissed.
20.
The father is at liberty to publish these Orders, and that part of the Reasons for Judgment given this day relating to the child’s name, to the child’s school, any banking or financial institution, the Australian Passports Office and any similar body in circumstances where such action is required to obviate or reduce any confusion about the child’s name.
Further Proceedings – Steps to be Taken
21.
Until further order, the mother must not, without leave of the court, institute in the Court any proceedings for any parenting orders in respect of the child.
22.
Any such application for leave to institute proceedings for any such parenting orders will, in the first instance, be first listed for hearing before a Judge in chambers and, if circumstances permit, by Justice Murphy.
23.
Unless otherwise ordered by the court, any such application for leave shall not be served on the father or any other party.
24.
In circumstances where the mother makes application for parenting orders to the Federal Magistrates Court, she shall attach to such application a copy of these orders.
Further Injunctions
25.
Save as earlier provided in these orders, the applications (made orally) by the father for injunctions are dismissed.
IT IS FURTHER ORDERED THAT
26.
Following the expiration of the Appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
27.
Pursuant to s 65DA(2) and s 62B, 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.
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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