FAMILY COURT OF AUSTRALIA
| CARLYLE & MULDOON | [2011] FamCA 51 |
| FAMILY LAW – CHILDREN – BEST INTERESTS – Parental responsibility – Whether an order for equal shared parental responsibility is in children’s best interests – Order made for mother to have sole parental responsibility for health and education – Order made for equal shared parental responsibility for the other major long-term issues – Traditional home of father and mother and their extended families in or near O – Father living on family farming and grazing property – Mother in rental property – Children’s living arrangements – Mother wishes to relocate to R for “new beginning” with her partner – R and O about two hours driving distance apart – Several proposals put including father and mother both living in or near O with equal time order or children living with father in or near O or with mother in or near O or with mother in R – Children’s best interests considered – Reasonable practicability considered – Determination made that children’s best interest will be met by living with mother in R and spending specified and other arranged time with father in O and that such is reasonably practicable |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DA, 65DAA |
| AMS v AIF (1999) 199 CLR 160 Collu & Rinaldo [2010] FamCAFC 53 D v SV (2003) FLC 93-137 Ebsworth & Ebsworth (No 2) [2007] FamCAFC 1229 G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286 Hepburn & Noble (2010) FLC 93-438 Korban & Korban [2009] FamCAFC 143 MRR v GR (2010) 240 CLR 461 Mazorski & Albright [2007] 37 FamLR 518 McCall & Clark (2009) FLC 93-405 Sealey & Archer [2008] FamCAFC 142 Starr & Duggan [2009] FamCAFC 115 Taylor v Barker (2007) FLC 93-345 |
| APPLICANT: | Ms Carlyle |
| RESPONDENT: | Mr Muldoon |
| FILE NUMBER: | BRF | 1472 | of | 2004 |
| DATE DELIVERED: | 11 February 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O'Reilly J |
| HEARING DATE: | 1, 2 and 3 November 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr George |
| SOLICITORS FOR THE APPLICANT: | Family Law Doyle Keyworth & Harris |
| COUNSEL FOR THE RESPONDENT: | Ms Kirkman-Scroope |
| SOLICITORS FOR THE RESPONDENT: | Sanderson & Parks |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Burridge |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Chan Legal Aid Queensland |
Orders
Parental responsibility
The parties have equal shared parental responsibility for L born … February 2001 and S born … July 2003 (the children) for decisions in relation to the major long-term issues concerning their religious and cultural upbringing and any changes to their living arrangements that may make it significantly more difficult for them to spend time with the parties or either of them.
In the exercise of their equal shared parental responsibility concerning the children in relation to decisions concerning those major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions.
In relation to such consultations:
(a)the parent wishing to make a proposal make…
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- Carlyle and Muldoon [2011] FamCA 51
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- [2011] FamCA 51
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CaseChat Overview and Summary
The court was required to determine the extent of equal shared parental responsibility for major long-term issues, specifically concerning the children's religious and cultural upbringing and decisions impacting their time with each parent. It also needed to decide on the allocation of sole parental responsibility for health and education decisions. Furthermore, the court had to establish specific orders for the children's living arrangements, including the frequency and duration of time spent with each parent, arrangements for school holidays, special days, and the practicalities of changeovers. The court also addressed communication protocols between the parents and provisions for the children's education, extracurricular activities, and health.
O'Reilly J ordered that the parties have equal shared parental responsibility for decisions concerning the children's religious and cultural upbringing and any changes to living arrangements that might significantly affect their time with a parent. This involved a requirement for genuine consultation and joint decision-making, with proposals to be made in writing and responses to be provided in writing. If joint decisions could not be reached, the parties were to consult a family law dispute resolution practitioner. However, the mother was granted sole parental responsibility for decisions regarding the children's health and education. The court then detailed specific orders for the children's living arrangements, including that they live with the mother and spend alternate weekends and defined periods of school holidays with the father, with specific provisions for soccer season and special days. Communication between the parties was to be primarily in writing, and specific protocols were established for telephone communication and the exchange of information regarding the children's activities and health. The court also made orders regarding non-denigration and transitional arrangements, including the mother's proposed move from O to R.
Orders
Orders of the court
Parental responsibility
1.
The parties have equal shared parental responsibility for L born … February 2001 and S born … July 2003 (the children) for decisions in relation to the major long-term issues concerning their religious and cultural upbringing and any changes to their living arrangements that may make it significantly more difficult for them to spend time with the parties or either of them.
2.
In the exercise of their equal shared parental responsibility concerning the children in relation to decisions concerning those major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions.
3.
In relation to such consultations:
(a) the parent wishing to make a proposal make it in writing to the other parent, setting out the advantages of the proposal perceived by that parent and reasoning supporting it
(b) the other parent respond in writing to the proposal by either agreeing with it or making a different proposal, setting out the advantages of any different proposal and reasoning supporting it
(c) if after such consultation a joint decision is not able to be made the parties are to consult a family law dispute resolution practitioner to assist them to resolve the issue.
4.
The mother have sole parental responsibility for the children for decisions in relation to the major long-term issues concerning their health and education.
5.
The parties each be responsible for the children’s day to day care while the children are with each of them.
Children’s living arrangements
6.
The children live with the mother in R.
7.
The children spend time with the father in or near O as follows and at all such additional times as the parties in writing may agree:
(a) on alternate weekends from 4.00pm Friday until 4.00pm Sunday (or if the Monday is a public holiday or pupil free day 4.00pm Monday)
(b) for half of the Easter and Christmas school holiday periods in each year, the first half in even years and the second half in odd years, with changeover to occur at 11.00am on the first Saturday, 11.00am on the midpoint day (or if there be no midpoint day the day following it) and for the odd years 11.00am on the last Friday (or if the Monday is a public holiday or pupil free day 11.00am on the last Saturday).
(c) for the whole of the June/July and September/October school holiday periods in each year, with changeover to occur at 11.00am on the first Saturday and 11.00am on the last Friday (or if the Monday is a public holiday or pupil free day 11.00am on the last Saturday).
8.
During the school holiday periods the parties are not restricted to keeping the children in R or O but may travel with them to other places in Australia.
9.
Despite order 7(a), during the children’s soccer season (usually from February to September in each year) the children’s alternate weekend time with the father commence not at 4.00pm on Friday but at the commencement of the children’s soccer games on Saturday, unless the father notifies the mother that he proposes to be in R overnight on any such Friday in which case the children’s time with the father commence at 4.00pm on those Fridays provided that he ensures that the children attend soccer on the Saturdays.
10.
The mother keep the father informed by written notice as early as possible as to the dates times and venues of the children’s soccer games.
11.
If (as he is free to do) the father should attend the children’s soccer games in or near R (or wherever they may be) on the Saturdays when ordinarily the children are not spending time with him, and it be able to be arranged, the children spend additional time with him on those days from the conclusion of the children’s soccer games until 5.00pm.
12.
If, in relation to any weekend the children are not with the father, the mother should plan to travel to or via O with the children to visit family members, she use her best endeavours on at least some of those occasions to arrange with the father for the children to spend additional time of between 2 and 4 hours with him, being times as she may nominate to suit her plans on such weekends.
Special days
13.
Unless the parties otherwise in writing agree, orders 14-18 apply for special days.
14.
If a birthday of one of the children or the father’s birthday falls on a school day, the children have telephone communication with the father between 6.30pm and 7.30pm with the children to initiate the calls at the reminder by and to be facilitated by the mother.
15.
If a birthday of one of the children or the father’s birthday falls on a day other than a school day the children spend time with the father for 4 hours between 10.00am and 2.00pm in O.
16.
If the mother’s birthday falls on a day other than a school day and the children are not with her the children spend time with her for 4 hours between 10.00am and 2.00pm in O.
17.
If Father’s Day falls on a Sunday when the children are not with him the children spend time with him for 4 hours between 10.00am and 2.00pm in O.
18.
If Mother’s Day falls on a Sunday when the children are with the father for alternate weekend time there be no special arrangements (on the basis that the children in the ordinary course will be collected by the mother at 4.00pm on such Sundays) and if it falls during a school holiday period when the children are with the father the children spend time with the mother for 4 hours between 10.00am and 2.00pm in O.
Changeover
19.
Unless the parties otherwise in writing agree, orders 20-25 apply in relation to changeovers.
20.
In relation to the children’s alternate weekend time with the father:
(a) other than during the children’s soccer season, changeover occur at 4.00pm on Fridays at … in R and at 4.00pm on Sundays at … Park in O.
(b) during the children’s soccer season changeover occur on the Saturdays at the commencement of the children’s soccer games, at the soccer game venue/s, unless the father has notified the mother that he proposes to be in R overnight on any Friday of those weekends in which case changeover occur at 4.00pm on those Fridays at … in R and at 4.00pm on Sundays at … Park in O.
21.
In relation to the children’s school holiday time with the father changeover occur at the commencement of time with the father at … in R and at the conclusion of time at … Park in O.
22.
If pursuant to order 11 the father should attend the children’s soccer games on Saturdays on which the children ordinarily are not spending time with him but spend additional time with him on those days changeover occur at the conclusion of the soccer games at the soccer game venue/s at 5.00pm at … in R.
23.
If pursuant to order 12 the children spend additional time with the father changeover occur at … Park in O.
24.
In relation to special days all changeovers occur at … Park in O.
25.
At all changeovers the mother and the father must use their best endeavours not to come within 10 metres of each other and there be “vehicle to vehicle” changeover to allow the children freely to alight one vehicle and move to the other vehicle.
Parties’ communication
26.
All written communications between the parties concerning the children (save in relation to order 43 below) including in relation to parental responsibility be by email (if the father should arrange an email service), Australia Post mail, SMS text message (if the father should wish to use such) or communication book and not contain any subject matter other than as may relate directly to the children and the carrying out of these orders.
27.
To facilitate such written communication:
(a) the parties as soon as practicable provide each other with an email address (if the father should arrange an email service), postal address and SMS text message service number (if the father should wish to use such) and give written notice of any change within 24 hours of any such change and
(b) the mother commence a new communication book.
28.
The communication book be used to inform each other about, and not contain any subject matter other than:
(a) the children’s school and extra curricular activities
(b) the children’s health and medical appointments
(c) the children’s prescribed medications and recommendations by health practitioners
(d) other information as may relate directly to the children and the carrying out of these orders.
Telephone communication
29.
While the children are with each parent the children have telephone communication with the other parent on each Tuesday, Thursday and Saturday between 6.30pm and 7.00pm, with the children to initiate the calls, at the reminder by and to be facilitated by the parent the children are with at such times.
30.
The children’s telephone calls to the father be to his landline telephone service.
31.
The children’s telephone calls to the mother be to a prepaid mobile telephone service number to be arranged by her for that purpose with a service provider to be nominated by the father (or if he should not nominate a service provider with 14 days of the date of these orders a service provider of her choice), the mother to ensure that at all times the service is sufficiently prepaid to be operational.
The children’s education and extra curricular activities
32.
Despite order 4, the mother initially must take all steps necessary to enrol the children at R Christian School, and not change their enrolment from that school without good reason.
33.
The father may attend all school occasions usually attended by parents, for example, parent teacher interviews, sports days, concerts, open days and end of year functions and all of the children’s extra curricular activities in R, whatever they may be, including but not limited to the children’s soccer season games.
34.
On all such occasions, the parties must use their best endeavours not to come within 10 metres of each other.
35.
Other than in relation to the children’s soccer season games, the mother must ensure that the children’s extra curricular activities are not arranged to occur during time which pursuant to these orders the children are to spend with the father.
The children’s health
36.
The father and the mother must ensure that the children are administered all medications prescribed for them from time to time and follow all recommendations of the children’s medical practitioners in relation to use and dosage.
37.
The mother must ensure that the father at all times is aware of L’s prescribed medications and recommendations of his medical practitioners in relation to use and dosage and that sufficient supply of it is provided to the father at all changeovers by way of inclusion of the medication in a changeover bag.
Children’s safety
38.
The father must ensure that he continues to observe and follow the recommendations set out in the report of Farmsafe Queensland Ltd, in relation to the children’s time with him at his farming and grazing property near O.
Information
39.
The parties must notify each other as soon as practicable of any serious accident or injury concerning the children or either of them.
40.
The parties must notify each other of the names and addresses of any treating medical or health practitioner or hospital the children attend and authorise such to provide to the other at his/her request and expense information or reports concerning the children provided that this order is sufficient authorisation to do so.
41.
The parties must authorise the children’s school to provide to the other at his/her request and expense information concerning the children, copies of school reports and circular or other written information concerning school activities usually provided to parents of children at the school provided that this order is sufficient authorisation to do so.
Non denigration
42.
The parties must not denigrate each other or permit other persons to do so in the hearing or presence of the children.
Transitional
43.
The mother must give the father at least 14 days written notice of the date upon which she proposes to move from O to R, which notice may be by letter from her solicitors to the father’s solicitors.
44.
Until the date on which the mother moves from O to R the children live with the mother in O and spend time with the father in or near O in the same terms as the interim orders made on 27 March 2006.
Independent children’s lawyer
45.
The independent children’s lawyer is discharged, without further order, one calendar month after the date on which the mother moves from O to R.
Liberty to apply
46.
The parties and the independent children’s lawyer have liberty to apply on short notice to the Associate by email at: … if confusion should arise as to the intended operation of these orders or if any of them is ambiguous or unclear so as to require clarification.
NOTATION:
These final orders are predicated on the mother’s evidence of her intention to move from O to R, and the Court’s understanding that such is likely to occur promptly after the date these orders are pronounced.
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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