FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CALKIN & CALKIN | [2009] FMCAfam 241 |
| FAMILY LAW – Parenting – spends time with – willingness and capacity of each parent to promote a close and continuing relationship with the other parent – child’s views – parental involvement with pornography and possible risk to child – child as peacemaker. |
| Family Law Act 1975, Part VII, ss.60B, 60B (1), (1)(b), (2), (2)(b), 61DA, 60CC (3), (3)(c), (f), (g), (i), (j), (4), (4A), 65DAA, 65DAA (1), (2) |
| Re Andrew (1996) 132 FLR 118; (1996) 20 Fam LR 538; (1996) FLC ¶92-692 R. Kaspiew, “Empirical Insights into Parental Attitudes and Children’s Interests in Family Court Litigation,” (2007) 29 Sydney Law Review 131 M. Nussbaum, Hiding from Humanity: Disgust, Shame and the Law, (Princeton: Princeton University Press, 2004) |
| Applicant: | MR CALKIN |
| Respondent: | MS CALKIN |
| File Number: | CAC 1898 of 2007 |
| Judgment of: | Neville FM |
| Hearing dates: | 7 July, 24 November 2008 |
| Date of Last Submission: | 24 November 2008 |
| Delivered at: | Canberra |
| Delivered on: | 20 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Godtschalk |
| Solicitors for the Applicant: | Dobinson Davey Clifford Simpson |
| Counsel for the Respondent: | Ms Rees (7 July 2008) Ms Tonkin (24 November 2008) |
| Solicitors for the Respondent: | Farrar Gesini & Dunn (July 2008) Lessli Strong & Associates (November 2008) |
ORDERS
UNTIL FURTHER ORDER, IT IS ORDERED THAT:
The Mother shall have sole parental responsibility for the [X] born in 1998.
During the course of Order 1 above, the Mother is to consult with and to keep advised the Father regarding major, long-term issues (as defined in the Family Law Act 1975) in relation to [X], but not limited to:
(a)Selection of schools;
(b)Medical treatment to be administered to the child, including examinations, operations, medical treatment, dental and orthodontic treatment, speech therapy and physiotherapy;…
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- AGLC
- Calkin and Calkin [2009] FMCAfam 241
- Case
- [2009] FMCAfam 241
- Decision Date
CaseChat Overview and Summary
The court considered various factors, including the views of [X], the benefit to the child of having a meaningful relationship with both parents, the need for continuity and stability in the child's life, and the capacity of each parent to provide for the child's physical, psychological, and educational needs. The court also examined the practicalities of implementing the proposed arrangements, ensuring that they were feasible and would not unduly disrupt the child's life.
After evaluating the evidence and arguments presented, the court determined that the Mother should have sole parental responsibility for the child. However, the Father was granted specific rights to consult and be involved in major, long-term decisions concerning the child's education, medical treatment, and emotional wellbeing. The court also established a detailed schedule for the Father's visitation with the child, gradually increasing the time spent over a period of eight months, and specific arrangements for school holidays. The court emphasised the importance of maintaining open communication between the parents and ensuring that the child could maintain regular contact with both parents.
The court's final orders included provisions for the child to primarily reside with the Mother, with the Father having specified visitation rights. The orders also included detailed guidelines for the changeover of the child, communication between the parents, and the sharing of important events and school-related materials. Additionally, the court imposed restrictions on the parents to prevent them from exposing the child to the proceedings or discussing the case in the child's presence. The orders also mandated that the Father secure and destroy any pornographic material in his possession and required both parents to attend various educational programs to improve their co-parenting skills.
Orders
Orders of the court
UNTIL FURTHER ORDER, IT IS ORDERED THAT:
1.
The Mother shall have sole parental responsibility for the [X] born in 1998.
2.
During the course of Order 1 above, the Mother is to consult with and to keep advised the Father regarding major, long-term issues (as defined in the Family Law Act 1975) in relation to [X], but not limited to:
(a) Selection of schools;
(b) Medical treatment to be administered to the child, including examinations, operations, medical treatment, dental and orthodontic treatment, speech therapy and physiotherapy; and
(c) The emotional development and wellbeing of the child including attendance by them upon any counsellor, psychologist or psychiatrist.
3.
Each parent will have responsibility for making decisions in relation to the day-to-day care of [X] while she is in their care.
4.
[X] shall live with her mother.
5.
The Father shall spend time with [X] as follows:
(a) For a period of two months from the date of these Orders:
(i) Each alternate weekend from 4.00pm Saturday until
12 noon Sunday; and
(ii) Each Wednesday evening from after school until 7.00pm.
(b) After a period of two months from the date of these Orders:
(i) Each alternate weekend from 4.00pm Saturday until 4.00pm Sunday; and
(ii) Each Wednesday evening from after school until 7.00pm.
(c) After a period of 4 months from the date of these Orders:
(i) Each alternate weekend from after school on Friday until 4.00pm Sunday; and
(ii) Each Wednesday evening from after school until 7.00pm.
(d) After a period of 6 months from the date of these Orders:
(i) Each alternate weekend from after school on Friday until before school on Monday; and
(ii) Each Wednesday evening from after school until 7.00pm.
(e) After a period of 8 months from the date of these Orders:
(i) Each alternate weekend from after school on Friday until before school on Monday; and
(ii) Every Wednesday night, from after school on Wednesday until before school on Thursday.
6.
During the September/October 2009 school holiday period, Order 5 above is to be suspended and the Father shall spend time with [X] for a four day (and three nights) block period in one week, times and dates to be agreed between the parties, but failing agreement, from 9.00am on the Friday of the first week of the holidays until 4.00pm on the following Monday.
7.
During the December 2009/January 2010 school holiday period, Order 5 above is suspended and the parents shall spend time with [X] on a week-about basis, or otherwise as agreed, but so as to share the holidays equally.
8.
If it is not a school day the parties shall meet for the purposes of changeover at an agreed half-way point between their two residences and failing agreement inside the [C] Shopping Centre (outside Woolworths), otherwise the Father will collect and deliver [X] to her school at the commencement and conclusion of his time with her.
9.
Unless otherwise agreed to between the parties, notwithstanding the above Orders, [X] shall spend time with her parents as follows:
(a) On Mother’s Day from 9.00am to 5.00pm with the Mother if [X] is not otherwise in the Mother’s care that day;
(b) On Father’s Day from 9.00 am to 5.00pm with the Father if [X] is not otherwise in the Father’s care that day;
(c) On [X]’s birthday, as follows:
(i) In the event [X]’s birthday falls over a weekend, with the parent [X] is not otherwise spending time with pursuant to these Orders, from 6.00pm on the evening immediately preceding [X]’s birthday until noon on [X]’s birthday;
(ii) In the event [X]’s birthday falls on a weekday, from 5.00pm to 8.00pm with the parent [X] is not otherwise spending time with pursuant to these Orders.
(d) On the Father’s and Mother’s birthdays from 5.00pm to 8.00pm with the parent celebrating his/her birthday if [X] is not otherwise in that parent's care.
(e) On Christmas Day, with the parent with whom she is not living from 5.00pm Christmas Day until 5.00pm Boxing Day.
10.
The parties shall each do all things to enable [X] to communicate by telephone with the parent with whom she is not residing between the hours of 7.00pm and 7.30pm each Sunday and on any occasion requested by [X], with [X] to initiate the call. Within seven (7) days of the date of these orders, each party shall provide the other with a mobile telephone number so that the party may contact [X] directly.
11.
Within seven (7) days of the making of these orders, each party shall advise the other of their residential address and shall advise the other parent of any changes in this regard within seven (7) days of any such change.
12.
The parties are not to approach within 100 metres of the other party’s residence, unless it relates to a medical or other emergency involving [X].
13.
Unless otherwise agreed, the parties are to communicate by the following means:
(a) Email;
(b) Text message;
(c) By way of communication book which is to be maintained by the parties and handed over at each changeover; and
(d) By telephone only if there is an emergency.
14.
The parties are to do all such acts and things as may be necessary to ensure that each of them receive, at their own expenses, copies of all school newsletters, school reports, school photographs and other material sent to parents from [X]’s school.
15.
Each parent is at liberty to attend any extra-curricular activity, sporting or school event involving [X].
16.
Each parent shall immediately inform the other of any health issues relating to [X] while in that parent’s care, including any emergencies, medical problems or illnesses suffered by [X] as well as any medication prescribed for [X].
17.
The parties are at liberty to travel within Australia with [X] during the time each are spending with [X] provided however that the other parent is informed of the contact details including a telephone contact and the address for [X] during the time that [X] is outside of the Australian Capital Territory.
18.
The parties each be and are hereby restrained by themselves and by their servants and agents from:
(a) showing or reading to [X] any solicitor’s letter or court document prepared as part of these proceedings; or
(b) discussing these proceedings with [X] or in the presence or hearing of [X] and ensuring others do not do so either;
(c) monitoring or being present during any telephone call that [X] has with the other parent;
(d) denigrating the other parent to or within the hearing of [X], and ensuring others do not do so either.
19.
The Father is to secure all pornographic material in his possession or control in a locked place where [X] cannot locate or access that material.
20.
The Father shall destroy all existing copies (if any) of pornographic material involving Ms Calkin in his possession or control, and file a written undertaking to the Court within 21 days of these Orders, confirming the destruction of any and all remaining material involving Ms Calkin.
21.
The parties attend to one or all of the following things recommended by Ms Blanch, with written evidence of their attendance at any programs to be provided to the Court:
(a) attending a parenting orders program;
(b) attending mediation specifically to develop the parameters of a businesslike co-parenting relationship to prepare for the possibility of shared parental responsibility;
(c) attending a step-parenting education course or seminar;
(d) reading relevant books or information on applicable Internet websites about children’s developmental needs and post-separation parenting.
22.
It is requested that Ms Blanch undertake a review of the care arrangements in the form of a further reportable family conference, to take place in December 2009, with a further report to be released in January 2010, prior to the commencement of the 2010 school year.
23.
These Orders be reviewed upon the release of the further family report, at a date to be advised by the Court.
24.
It is requested that Ms Blanch or [X]’s counsellor explain and discuss these Orders with [X].
AND IT IS NOTED THAT:
(a) School holiday periods are defined as commencing after school on the last day of term and concluding before school on the first day of the following term.
(b) The weekend time that [X] has spent with her father has coincided with the time that the Father’s partner Ms D has had the care of her children. It is the Father’s intention to continue the arrangement whereby the time he spends with [X] on weekends and during school holidays is in line with the time that Ms D has the care of her children. The Father will keep the Mother informed of these arrangements, including in relation to the recommencement of his fortnightly time with [X] after school holiday periods and the Mother shall facilitate these arrangements.
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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