FAMILY COURT OF AUSTRALIA
| CARPENTER & CARPENTER (NO. 2) | [2012] FamCA 1005 |
| FAMILY LAW – CHILDREN – where the mother alleges the father poses an unacceptable risk of sexual harm to the children – where the police and the Department have investigated the allegations – where the father has not been charged with any offence and the Department determined the allegations were unsubstantiated – where the mother maintains the allegations – where the Department has determined that the mother has emotionally harmed the children – whether the father poses an unacceptable risk of harm – where the father does not pose an unacceptable risk of harm – whether it is in the children’s best interests to live with the father – where the youngest child is 2½ – where the children have been in the primary care of the mother since separation – where orders made that children live with the father and spend time with the mother. |
| Evidence Act 1995 (Cth) Family Law Rules 2004 (Cth) |
| Carlson & Bowden (2008) 40 FamLR 327 Australian Law Reform Commission, Uniform Evidence Law Report, December 2005 |
| APPLICANT: | Ms Carpenter |
| RESPONDENT: | Mr Carpenter |
| INDEPENDENT CHILDREN’S LAWYER: | Emerson Family Law |
| FILE NUMBER: | BRC3510 | of | 2011 |
| DATE DELIVERED: | 29 November 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 22, 23, 27, 28, 29 and 30 August 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Merkin |
| SOLICITOR FOR THE APPLICANT: | Waterford Law Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Page SC |
| SOLICITOR FOR THE RESPONDENT: | Herbert Geer |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Kirkman-Scroope |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER | Emerson Family Law |
Orders
IT IS ORDERED THAT
Parental Responsibility
It be declared that the presumption of equal shared parental responsibility is rebutted in the best interests of B (born … May 2005), D (born … March 2007) and E (born … March 2010) (“the children”).
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) (“the Act”)) in respect of the children, save that, prior to making the sole ultimate decision about any such issue, the father shall:
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 children, any such response prior to making any such decision; and,
d)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
The father shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the children whilst…
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- Carpenter and Carpenter (No 2) [2012] FamCA 1005
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- [2012] FamCA 1005
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CaseChat Overview and Summary
The court was required to determine whether the presumption of equal shared parental responsibility was rebutted, and if so, to make orders regarding the allocation of parental responsibility for major long-term issues and day-to-day care. Further issues included the specific arrangements for the children to spend time with each parent, including during school terms, holidays, and special occasions, as well as provisions for communication and the exchange of information between the parents.
Murphy J found that the presumption of equal shared parental responsibility was rebutted in the best interests of the children. The father was granted sole parental responsibility for major long-term issues, with specific procedural requirements for him to consult the mother in writing before making final decisions. The father was also given sole responsibility for day-to-day decisions concerning the children when they were in his care, while the mother had similar responsibility when the children were in her care. The court made detailed orders regarding the children living with the father and spending time with the mother, including specific schedules for different age groups and periods. An injunction was also issued restraining the mother from taking the children to mental health professionals without the father's prior written consent, with such decisions being classified as major long-term issues. The court also made provisions for communication, information sharing, and the discharge of the Independent Children's Lawyer.
Orders
Orders of the court
IT IS ORDERED THAT
Parental Responsibility
1.
It be declared that the presumption of equal shared parental responsibility is rebutted in the best interests of B (born … May 2005), D (born … March 2007) and E (born … March 2010) (“the children”).
2.
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) (“the Act”)) in respect of the children, save that, prior to making the sole ultimate decision about any such issue, the father shall:
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 children, any such response prior to making any such decision; and,
d) Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
3.
The father shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the children whilst the children are in his care.
4.
The mother shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the children whilst the children are in her care.
Counselling and Injunction
5.
For the purposes of these Orders the decision to engage the services of any psychiatrist, psychologist, counsellor or like-professional shall be deemed a “major long-term issue” to which the provisions of paragraph 2 of these Orders shall apply and paragraph 4 of these Orders shall not apply.
6.
The mother be restrained and an injunction issue restraining her from taking the children to any psychologist, psychiatrist, counsellor or like-professional without the prior written consent of the father.
Live with/Spend time with
7.
The children shall live with the father.
8.
The children shall spend time with the mother at all such times as might be agreed in writing between the parties and failing any such agreement in accordance with the succeeding provisions of these Orders.
B and D
9.
B and D shall spend no time with the mother from the time that the children are delivered to the Child Dispute Services until 25 December 2012.
10.
B and D shall spend time with the mother (with such time to coincide with the time E is to spend with the mother in accordance with paragraph 12(a)(i)):
a) From 12.00 midday on Tuesday, 25 December 2012 until 4:30pm Sunday, 30 December 2012;
b) From 8.30am Tuesday, 8 January 2013 until 4.30pm Sunday, 13 January 2013;
c) From 8.30am Tuesday, 22 January 2013 until 4.30pm Sunday, 27 January 2013.
11.
From Term 1, 2013, B and D shall spend time with the mother from after school Friday to before school Wednesday each alternate week (with such time to coincide with the time E is to spend with the mother in accordance with paragraph 12(b)(i)).
E
12.
E shall spend time with the mother:
a) As from the date of these Orders and until B and D commence Term 1, 2013:
i) From 8:30am Tuesday to 4:30pm Sunday each alternate week, (with such time to coincide with the time B and D are to spend with the mother in accordance with paragraph 10).
b) From the time B and D commence Term 1, 2013:
i) From after school Friday to before school Wednesday each alternate week, (with such time to coincide with the time B and D are to spend with the mother in accordance with paragraph 11).
c) On Christmas Day 2012, time between the mother and E shall commence at 12:00 midday.
Holiday time/Special Occasions
From Easter School Holidays 2013
13.
The children shall spend with the mother:
a) For the first half of the Easter, June/July and September/October gazetted school holiday periods every odd year and the second half in every even year;
b) For the first half of the Christmas/New Year school holidays from after school on the last day of school until 12:00 midday Christmas Day every odd year and, commencing in 2014, from 12:00 midday Christmas Day until 4:30pm on the day before school resumes in every even year;
14.
In the event that the children are otherwise not spending time with the mother, the children shall spend time with the mother:
a) On the children’s birthdays as follows:
i) In even numbered years from after school on the day before the child’s birthday until commencement of school on their birthday;
ii) In odd numbered years from after school on the child’s birthday until the commencement of school on the day after their birthday;
iii) If the child’s birthday falls on a weekend: from 3:00pm until 6:00pm on the birthday.
b) On the mother’s birthday:
i) If it falls on a weekday: from after school until 6:00pm; and
ii) If it falls on a weekend: from 9:00am until 5:00pm.
c) On Mother’s Day from 9:00am until 5:00pm.
15.
In the event that the children are otherwise not spending time with the father, the children shall spend time with the father:
a) On the children’s birthdays as follows:
i) In odd numbered years from after school on the day before the child’s birthday until commencement of school on their birthday;
ii) In even numbered years from after school on the child’s birthday until the commencement of school on the day after their birthday;
iii) If the child’s birthday falls on a weekend: from 12:00 midday until 3:00pm on the birthday.
b) On the father’s birthday:
i) If it falls on a weekday: from after school until 6:00pm; and
ii) If it falls on a weekend: from 9:00am until 5:00pm.
c) On Father’s Day from 9:00am until 5:00pm.
Family Consultant to Explain Orders
16.
So as to give effect to these Orders, the mother shall present the children to the Director, Child Dispute Services (or such Family Consultant nominated by him) located on Level 3, Harry Gibbs Commonwealth Law Courts, at 9:00am on Friday, 30 November 2012 and shall herself attend thereat for the purpose of:
a) The Family Consultant explaining the nature and effect of these Orders to the children; and
b) The children being delivered into the care of the father in accordance with these Orders.
Changeover
17.
Changeover during school term shall occur at the children’s school.
18.
Changeover during holidays shall occur at the father’s house.
Communication
19.
The parties shall be at liberty to communicate with the children by telephone at any reasonable time.
20.
Both parents shall facilitate Skype communication between all of the children and the other parent at 6:00pm each Monday and Friday (in the weeks when the children are not otherwise spending time with that parent in accordance with these Orders).
21.
Both parents shall facilitate telephone communication between the children and the other parent at any reasonable time requested by the children.
Provision of Information
22.
Each party shall do all such things and sign all such documents as may be necessary or required to:
a) Authorise the other party to communicate with, and receive communication from, any doctor or health professional (of whatever type), whom the children consult, failing which this Order shall, of itself, constitute such authority;
b) Speak to, and receive oral or written communication from, any school, childcare centre or other educational institution, attended by the children, after payment of any necessary fee, failing which this Order shall, of itself, constitute such authority;
c) Keep the other party appraised of their residential address, telephone contact number, and other electronic communication address or addresses for the purpose of communication with the children (such as Skype and email), with any changes to same being notified to the other party in writing within 48 hours of same occurring;
d) Notify the other party as soon as reasonably practicable should any of the children suffer any medical emergency, serious illness, or other significant issue affecting the children’s health or welfare, whilst in their care.
23.
Each parent shall be at liberty to attend any and all extracurricular activities undertaken by the children and each party shall do all things and sign all documents reasonably necessary to ensure that the attendance of each party is authorised.
24.
In the event that either party fails or refuses to do any such thing or provide any such document or authority, this Order shall, of itself, be sufficient authority for each and all of the matters referred to in paragraphs 22 and 23 of these Orders to occur.
Miscellaneous
25.
Pursuant to s 121 of the Act, the parties be granted leave to publish an account of these proceedings, namely, these Orders and the Reasons for Judgment of Justice Murphy delivered in these proceedings to the:
a) Director-General of the Department of Communities, Child Safety and Disability Services, Child Safety Officer Ms G, and any other officer duly authorised by the Director-General; and,
b) Principal of any school or the director of any childcare centre attended by the children.
26.
The Independent Children’s Lawyer is discharged upon the later of the expiration of the appeal period in respect of these Orders, or the hearing of any appeal.
27.
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 upon the later of the expiration of the appeal period in respect of these Orders, or the hearing of any appeal.
28.
Pursuant to s 65DA(2) and s 62B, 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 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.
Costs
29.
Any application for costs, including any application in respect of costs reserved, by any party shall be made by:
a) The applicant filing an application via written submissions emailed to … and sent contemporaneously to the other parties, by no later than 4.00pm, 20 December 2012;
b) Any response being filed via the same method by 4.00pm, 16 January 2013; and,
c) Any such submissions containing an annexure setting out the precise minutes of the orders sought.
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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