FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CASSIDY & CASSIDY | [2012] FMCAfam 270 |
| FAMILY LAW – Children – parenting – best interests of the children – parental responsibility – equal shared parental responsibility – sole parental responsibility – three children aged 11, 9 and 6 years. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA |
| Cassidy & Cassidy [2008] FMCAfam 1137 Cassidy & Cassidy [2009] FamCAFC 125 Cassidy & Cassidy [2010] FMCAfam 515 Cassidy & Cassidy [2011] FMCAfam 220 Stevenson v Hughes (1993) FLC 92-363 |
| Applicant: | MR CASSIDY |
| Respondent: | MS CASSIDY |
| File Number: | SYC 5446 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 13-15 March 2012 |
| Date of Last Submission: | 15 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Campton |
| Solicitors for the Applicant: | Caldwell Martin & Co |
| Counsel for the Respondent: | Mr Lee |
| Solicitors for the Respondent: | CBD Legal |
| Counsel for the Independent Children’s Lawyer | Ms Fallon |
| Solicitors for the Independent Children’s Lawyer | Legal Aid NSW |
ORDERS
BY CONSENT
All previous parenting orders are discharged in relation to the children [X] born [in] 2000, [Y] born [in] 2003 and [Z] born [in] 2005.
Without derogating from the meaning of parental responsibility in these orders, the Respondent mother shall:
(a)advise the father in writing immediately she becomes aware of the need for a decision to be made; and
(b)provide the father in writing with all information relevant to the decision; and
(c)if reasonably possible, in exercising parental responsibility pursuant to Order 3, consider any views expressed in writing by the father, before making the decision.
That the children live with the mother.
That notwithstanding the provisions of any orders for parental responsibility in these orders:
(a)the mother shall be responsible for the day to day care, welfare and development of the children when they are living with her;
(b)the father shall be responsible for the day to day care welfare and development of the children when they are spending time with him.
The school term is defined in accordance with the information contained within the New South Wales Public Schools website (currently in the “Term dates” section, or in any official New South Wales school website that replaces this one, and such holidays shall be deemed to commence from the day after the preceding term ends, and the holidays shall be deemed to conclude on the day before the children are required to return to school pursuant to such information.
For any medical attention for the children other than emergencies the parents shall attend upon the family medical practice of Dr M at [address omitted] with the children and the parent taking the children to the family medical practice will ensure that the other parent:
(a)is advised of any diagnosis;
(b)is advised of any medication prescribed;
(c)ensures that any prescribed medication goes with the child to the other parent; and
(d)shall ensure that any medication is administered and/or that any treatment regime is complied with.
In the event that a child is admitted to hospital,…
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- Cassidy and Cassidy [2012] FMCAfam 270
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- [2012] FMCAfam 270
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CaseChat Overview and Summary
The primary legal issues the court had to decide included the allocation of parental responsibility, the children's living arrangements, and the specific details of the parents' time with the children. The court needed to balance the best interests of the children against the wishes and needs of both parents. This involved considering factors such as the children's age, the parents' ability to provide for the children, and the potential for conflict between the parents.
The court concluded that the children would live primarily with the mother but would spend substantial time with the father. The parents were to have equal shared parental responsibility for the children's religious practice and upbringing, while the mother was to have sole parental responsibility for other matters. The court issued detailed orders to manage the children's time with each parent, their medical care, and communication between the parents and the children. It also imposed restrictions on the parents' interactions with each other to minimize conflict and ensure the children's safety.
The final orders included provisions for the children to live with the mother, detailed schedules for the father's time with the children, and specific instructions for medical care, school changeovers, and communication. Both parents were restrained from using physical discipline and from discussing the proceedings in the presence of the children. The court also ordered the parents to facilitate the children's communication with each other and to provide notice of any changes in their contact information. The Independent Children's Lawyer was permitted to provide copies of the orders to relevant parties to ensure compliance and to explain the orders to the children.
Orders
Orders of the court
BY CONSENT
1.
All previous parenting orders are discharged in relation to the children [X] born [in] 2000, [Y] born [in] 2003 and [Z] born [in] 2005.
2.
Without derogating from the meaning of parental responsibility in these orders, the Respondent mother shall:
(a) advise the father in writing immediately she becomes aware of the need for a decision to be made; and
(b) provide the father in writing with all information relevant to the decision; and
(c) if reasonably possible, in exercising parental responsibility pursuant to Order 3, consider any views expressed in writing by the father, before making the decision.
3.
That the children live with the mother.
4.
That notwithstanding the provisions of any orders for parental responsibility in these orders:
(a) the mother shall be responsible for the day to day care, welfare and development of the children when they are living with her;
(b) the father shall be responsible for the day to day care welfare and development of the children when they are spending time with him.
5.
The school term is defined in accordance with the information contained within the New South Wales Public Schools website (currently www.schools.nsw.edu.au) in the “Term dates” section, or in any official New South Wales school website that replaces this one, and such holidays shall be deemed to commence from the day after the preceding term ends, and the holidays shall be deemed to conclude on the day before the children are required to return to school pursuant to such information.
6.
For any medical attention for the children other than emergencies the parents shall attend upon the family medical practice of Dr M at [address omitted] with the children and the parent taking the children to the family medical practice will ensure that the other parent:
(a) is advised of any diagnosis;
(b) is advised of any medication prescribed;
(c) ensures that any prescribed medication goes with the child to the other parent; and
(d) shall ensure that any medication is administered and/or that any treatment regime is complied with.
7.
In the event that a child is admitted to hospital, the parents shall comply with any and all requests, recommendations and directions of the treating team including doctors, nurses and social workers, noting that this order does not in any way derogate from the authority, responsibilities and obligations of the treating team to make the necessary arrangements in relation to the safety and well being of the child being treated and the safety and well being of any member of the hospital staff.
8.
The parties are restrained from attending any Parent-Teacher night at the children’s school/s at the same time as each other and both parents must make arrangements according to the convenience of the school to attend on different appointment times to each other, noting that this order does not in any way derogate from the authority, responsibilities and obligations of the school to make the necessary arrangements in relation to the safety and well being of the said children and any teacher or member of the school staff.
9.
Notwithstanding any other orders herein the father is at liberty to approach the children’s school directly to obtain copies of the children’s school reports, school photographs and other information ordinarily provided to parents.
10.
The parties are hereby restrained from permitting any relative or support person to be within 200 metres of the children and parents when the children are moving from the care of one parent to the other.
11.
The parties are restrained from making any recording of changeover or requiring or permitting any other person to do so.
12.
All changeovers shall occur as follows:
(a) at school each alternate Thursday and Monday during the school terms;
(b) at [C] Police Station at 12 noon on the midpoint of the school holidays; and
(c) at the children’s school at the end of the school holiday periods; and
(d) in the foyer of the [C] Police Station on all other occasions where it does not take place at the children’s school.
13.
For the purposes of changeover at the [C] Police Station pursuant to Order 12 above:
(a) the parent delivering the children shall arrive at the foyer at least 5 minutes prior to the changeover time; and
(b) the parent collecting the children shall take the children immediately from the area; and
(c) the delivering parent shall then wait a further 5 minutes before leaving the Police Station.
14.
If a child is not at school on a day when he/she would be collected by a parent in accordance with these orders then the child shall be delivered to the [C] Police Station 30 minutes after the time he/she would have been collected from the school.
15.
Each of the parties is to ensure that the children’s school uniforms, shoes and other school equipment accompany the children at changeover and that the school uniforms, shoes and other equipment be returned and in good repair at the conclusion of the children’s time with a parent.
16.
The parties are hereby restrained:
(a) from discussing these orders with the children or any other person on any occasion when the children are moving from the care of one parent to the other.
(b) from discussing these proceedings in the presence or within the hearing of the children, and shall use their best efforts to ensure that no other person discuses these proceedings in the presence or hearing of the children.
17.
Without admissions both parents are restrained from using physical discipline on the children at any time.
18.
The parents shall in the first instance communicate concerning arrangements for the children by using e-mails, and/or text messages (SMS) where necessary.
19.
The mother and father:
(a) shall do all such things as may reasonably be required to facilitate the children communicating with the other party by telephone between 7.30 am 8.00 am on each of the said children’s birthdays, and the parent who does not have the said children in his or her care at that time to initiate the call; and
(b) shall do nothing to prevent a child from telephoning the other parent at any reasonable time.
20.
Each party shall give the other not less than 7 days notice in writing of an intention to change his/her residential address and/or telephone number(s) and shall advise the other party in writing of the new address and telephone details.
21.
The Independent Children’s Lawyer shall be at liberty to provide copies of these Orders to the children’s current school, to Ms D Psychologist, the children’s General Practitioner and [C] Family Support Service within 7 days of the date of these Orders.
22.
The parents or either of them shall comply with a request by the Independent Children’s Lawyer that the children attend the office of the Independent Children’s Lawyer for the purposes of the Independent Children’s Lawyer explaining to the children the nature and effect of the orders on the time the children will spend with each parent.
AND IT IS FURTHER ORDERED THAT
23.
The parties are to have equal shared parental responsibility for the children [X] born [in] 2000, [Y] born [in] 2003 and [Z] born [in] 2005 as to matters concerning the children’s religious practice and upbringing.
24.
The mother will otherwise have sole parental responsibility for the children [X], [Y] and [Z].
25.
The mother shall provide to the father a yearly calendar of proposed extra-curricular or sporting activities for the children if available or at least 72 hours notice prior to any extra-curricular or sporting activity shall provide to the father by SMS text or email the times, dates and location of each activity and any other necessary details for the participation of the children in those extra-curricular or sporting activities.
26.
Each parent notwithstanding any other parenting order is restrained from enrolling or registering any of the children in any extra-curricular or sporting activity or hobby that would take place or occur or be scheduled when the child would be in the care of the other parent as provided by these Orders except by way of agreement in writing between the parties.
27.
The parties are hereby restrained from approaching each other as follows:
(a) at any school function which they attend and which parents would ordinarily attend whether on the school premises or at any other location outside the school premises where a school event is held; and
(b) at any extra-curricular or sporting activity which parents would ordinarily attend and in which the children participate,
except in case of any emergency affecting the health or safety of any of the children.
28.
The children shall spend time with the father as follows:
(a) During school terms from after school each alternate Thursday to before school on the following Monday, or to before school on the Tuesday in the event of a gazetted long weekend;
(b) For one half of the school holidays at the end of Terms 1, 2 and 3 each year as follows:
(i) the mother’s time to commence at the conclusion of Terms 1, 2 and 3 during 2012 and each alternate year thereafter, and conclude at 12 noon on the second Saturday of each school holiday period;
(ii) the father’s time to commence from 12 noon on the second Saturday during the holidays at the end of Terms 1, 2 and 3 during 2012 and each alternate year thereafter, and conclude at the commencement of school in Terms 2, 3 and 4;
(iii) the mother’s time to commence from 12 noon on the second Saturday during the term holidays at the end of Terms 1, 2 and 3 during 2013 and each alternate year thereafter, and conclude at the commencement of school terms 2, 3 and 4; and
(iv) the father’s time to commence at the conclusion of Terms 1, 2 and 3 during 2013 and each alternate year thereafter, and conclude at 12 noon on the second Saturday of each school holiday period.
(c) Each year for one half of the Christmas/New Year school holidays as follows:
(i) The mother’s time to commence at the conclusion of Term 4 and to conclude at 12 noon on the fourth Saturday of the Christmas/New Year holiday period in 2012/2013 and each alternate year thereafter;
(ii) The father’s time to commence at 12 noon on the fourth Saturday of the Christmas/New Year holiday period in 2012/2013 and concluding at the commencement of school in Term 1 in 2013 and each alternate year thereafter;
(iii) The mother’s time in 2013/2014 to commence at 12 noon on the fourth Saturday of the Christmas/New Year holiday period in 2013/2014 and concluding at the commencement of school in Term 1 in 2014 and each alternate year thereafter; and
(iv) The father’s time in 2013/2014 to commence at the conclusion of Term 4 and to conclude at 12 noon on the fourth Saturday of the Christmas/New Year holiday period and each alternate year thereafter.
29.
The father’s alternate weekend time as provided by these Orders as to the time spent with the children is to recommence on the first weekend after the school term resumes in all those years where the father’s time commences at the conclusion of Terms 1, 2 and 3 and concludes on the second Saturday of each school holiday period.
30.
The father’s alternate weekend time as provided by these Orders as to the time spent with the children is to recommence on the second weekend after the school term resumes in all those years where the father’s time commences at 12 noon on the second Saturday during the holidays at the end of Terms 1, 2 and 3 and concludes at the commencement of school in Terms 2, 3 and 4.
31.
The father’s alternate weekend time as provided by these Orders as to the time spent with the children is to recommence on the second weekend of Term 1 in 2013 and each alternate year thereafter.
32.
The father’s alternate weekend time as provided by these Orders as to the time spent with the children is to recommence on the first weekend of Term 1 in 2014 and each alternate year thereafter.
33.
The mother is restrained from being within 100 metres of the [K] School or any other school the children may attend from 15 minutes before and until 15 minutes after the beginning and end of school on any day on which the father is collecting or delivering the children to and from school as provided by these Orders.
34.
The mother must do all things to ensure that during school terms the children are to communicate with the father by telephone each Thursday evening when they are not otherwise spending time with the father on those Thursdays between at a time between 7:30 and 8:00 pm by way of the mother calling the father’s telephone number.
35.
Each party is restrained by injunction from doing any act or thing so as to:
(a) change the surname or use any other surname for any of the children; or
(b) apply for any passport for any of the children
except by way of consent in writing of the other party or Order of the Court.
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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