FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARR & VINCENT | [2009] FMCAfam 608 |
| FAMILY LAW – Final arrangements for care of children aged 7 and 6 – father lives in Japan – mother lives in Australia – parties have poor relationship – communication difficulties – arrangements for children to spend time with father – appropriate surname for children – best interests. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC |
| Carr & Vincent [2008] FMCAfam 888 Bright v Bright (1995) FLC 92-570 Fooks v McCarthy (1994) FLC 92-450 Chapman & Palmer (1978) FLC 90-510 Beach & Stemmler (1979) FLC 90-692 Goode & Goode (2006) FLC 93-286 Bright & Bright (1995) FLC 92-570 |
| Applicant: | MR CARR |
| Respondent: | MS VINCENT |
| File Number: | ADC 2680 of 2008 |
| Judgment of: | Brown FM |
| Hearing dates: | 21 & 22 May 2009 |
| Date of Last Submission: | 22 May 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 19 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Noble |
| Solicitors for the Applicant: | Andersons |
| Counsel for the Respondent: | In Person |
ORDERS
The parties have equal shared parental responsibility for the children of the relationship [Y] born in 2003 and [X] born in 2002.
The children spend time with the father in the following ten day periods when he is on leave from his work and in Australia:
(a)from the conclusion of school on 25 September until 9:00am on 4 October 2009.
(b)from the conclusion of school on 14 December until noon on 23 December 2009.
The children spend time with the father for ten day periods at such other times that he is both on leave from his employment and is in Australia provided that the father provides to the mother notice in writing of the date he will be in Australia sixty days prior to his arrival in Australia to spend time with the children pursuant to this order together with his anticipated time of his arrival to collect the children provided that there is no more than one such ten day period of time each period of thirty days.
The mother provide the children to the father with all their necessary school uniforms, medications, casual clothing and night ware, school bags and materials and full details of all educational and extra-curricular activities including all necessary equipment and clothing for such activities for all periods of time the children spend with the father.
All handovers other than those which occur at school shall occur at Hungry Jack’s [B].
In the event the father is unable to conduct handovers the paternal grandmother Ms C is permitted to do so.
Both parties are at liberty to travel interstate with the children when the children are in their care provided a full itinerary including contact details for the children is given no less than four weeks prior to such travel occurring and that all such travel occurs during the children’s South Australian school holidays and or public holidays or on weekends.
On each of the parent’s and children’s birthdays the children will spend…
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- AGLC
- Carr & Vincent [2009] FMCAfam 608
- Case
- [2009] FMCAfam 608
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the primary judge had correctly exercised his discretion in making the orders he did, and whether the Full Court should make any changes to those orders. The Full Court considered the evidence and arguments presented by both parties and concluded that the primary judge had not exercised his discretion incorrectly. The Full Court did, however, make some changes to the orders, including those relating to the children spending time with the father during other periods when he was on leave and in Australia. The Full Court also considered whether the primary judge had correctly exercised his discretion in making orders relating to the children's living arrangements, contact with each parent, and other aspects of their upbringing. The Full Court concluded that the primary judge had not exercised his discretion incorrectly in most cases, but did make some changes to the orders.
The Full Court's orders included provisions for the children spending time with the father during specific periods when he was on leave from work and in Australia, as well as during other periods when he was on leave and in Australia, provided that he gave the mother written notice in advance. The orders also included provisions for the children spending time with the father on each parent's and the children's birthdays, and on Father's Day and Mother's Day if they fell during a period when the children were with the other parent. The orders further provided for the children spending time with the father during other periods when he was in Australia, provided that he gave the mother written notice in advance. The Full Court also made orders relating to the children's living arrangements, contact with each parent, and other aspects of their upbringing, including provisions for the children spending time with each parent, attending school functions and sporting events, and communicating with each other and their parents. The Full Court's orders also included provisions for the children having current Australian passports, and for the parents not denigrating each other or their partners to the children.
In conclusion, the Full Court made several orders relating to the care and custody of the two children in the case of Carr & Vincent. The orders included provisions for the children spending time with the father during specific periods when he was on leave from work and in Australia, as well as during other periods when he was on leave and in Australia, provided that he gave the mother written notice in advance. The orders also included provisions for the children spending time with the father on each parent's and the children's birthdays, and on Father's Day and Mother's Day if they fell during a period when the children were with the other parent. The Full Court's orders further provided for the children spending time with the father during other periods when he was in Australia, provided that he gave the mother written notice in advance. The Full Court also made orders relating to the children's living arrangements, contact with each parent, and other aspects of their upbringing, including provisions for the children spending time with each parent, attending school functions and sporting events, and communicating with each other and their parents. The Full Court's orders also included provisions for the children having current Australian passports, and for the parents not denigrating each other or their partners to the children.
Orders
Orders of the court
1.
The parties have equal shared parental responsibility for the children of the relationship [Y] born in 2003 and [X] born in 2002.
2.
The children spend time with the father in the following ten day periods when he is on leave from his work and in Australia:
(a) from the conclusion of school on 25 September until 9:00am on 4 October 2009.
(b) from the conclusion of school on 14 December until noon on 23 December 2009.
3.
The children spend time with the father for ten day periods at such other times that he is both on leave from his employment and is in Australia provided that the father provides to the mother notice in writing of the date he will be in Australia sixty days prior to his arrival in Australia to spend time with the children pursuant to this order together with his anticipated time of his arrival to collect the children provided that there is no more than one such ten day period of time each period of thirty days.
4.
The mother provide the children to the father with all their necessary school uniforms, medications, casual clothing and night ware, school bags and materials and full details of all educational and extra-curricular activities including all necessary equipment and clothing for such activities for all periods of time the children spend with the father.
5.
All handovers other than those which occur at school shall occur at Hungry Jack’s [B].
6.
In the event the father is unable to conduct handovers the paternal grandmother Ms C is permitted to do so.
7.
Both parties are at liberty to travel interstate with the children when the children are in their care provided a full itinerary including contact details for the children is given no less than four weeks prior to such travel occurring and that all such travel occurs during the children’s South Australian school holidays and or public holidays or on weekends.
8.
On each of the parent’s and children’s birthdays the children will spend no less than four hours at times to be agreed, or in default from 3:30pm until 7:30pm, with the non-residential parent if that parent is in South Australia and if that parent is not in South Australia then the residential parent will facilitate the children telephoning that parent at 7:00pm South Australian time.
9.
In the event that Father’s Day falls during the mother’s time with the children, the children are to spend from 10:00am until 6:00pm on Fathers Day in the father’s care if he is in South Australia provided that if Mother’s Day falls during time the children are with the father then the children are to reside with the mother under the same terms as for Father’s Day.
10.
In the event that Father’s Day falls during a period the father is not in South Australia the mother is to facilitate the children telephoning their Father at 6:00pm South Australian time.
11.
Both parties do all things and sign all documents necessary so as to ensure that both children have current Australian passports at all times.
12.
The children otherwise live with the Mother.
13.
The mother is restrained and an injunction granted restraining her from permitting the children to be referred to in any written document or to be verbally referred to as [Y] Vincent and [X] Vincent and that the mother ensure that the children are always referred to verbally and in writing as [Y] Carr-Vincent and [X] Carr-Vincent those being their properly registered names.
14.
The parties be restrained and an injunction granted restraining them from denigrating the other, or their partner or any member of their respective families to the said children or from allowing them to be in the presence of anyone so doing and restrained from removing the children from Australia without order of this court.
15.
Both parties be at liberty to attend all school function and to receive all school newsletters, notices and reports such as parents normally receive by way of prior arrangement with any school at which the children are from time to time enrolled.
16.
Both parties are at liberty to attend all such sporting and recreational events and functions for all sporting and recreational organisations in which the children may be enrolled from time to time.
17.
Both parties undertake to inform the non-residential parent of any medical or other emergency directly related to the children’s health or welfare as soon as practicable after such emergency arises with the other parent at liberty to visit the child or children according to the protocols of any hospital or medical specialist rooms.
18.
The Father is at liberty to telephone the children on a landline telephone number provided by the Mother on Sundays between the hours of 6.00pm and 8.00pm and on Wednesdays between 7:00pm and 8:00pm South Australian time with the mother to facilitate the children having privacy during such calls and to ensure that the children text the father prior to 6.00pm South Australian time to his mobile telephone to advise if they will be unavailable and to nominate a time when they will be available to take the call.
19.
The mother do ensure that her landline telephone connection is maintained and advise the father by text message to his mobile telephone if her landline is waiting on repairs and that she provide telephone contact via her mobile telephone which will be charged and turned on at all times set out herein.
20.
Both parties undertake to facilitate the children telephoning the other parent when they are not in the other parent’s care and they express a desire to do so.
21.
Both parties undertake to provide the other with their full contact details for all landline and mobile telephone numbers and to advise of any change occurring thereto within 24 hours of such change occurring.
22.
The mother pay one half of the professional fees of Mr Tony McDonagh in relation to the preparation of his Family Assessment report and giving his evidence before FM Brown on 21 May 2009.
23.
All children’s applications other than those relating to maintenance, are dismissed.
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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