FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHEEVER & BARRIE | [2012] FMCAfam 869 |
| FAMILY LAW – Application for final parenting orders – agreed order for sole parental responsibility – whether in children’s best interests – agreed order for children to live with mother – dispute over time spent with father – agreed order in relation to oldest child – dispute over time for youngest child with father – dispute over other orders including orders for counselling. CHILD SUPPORT – Application to set aside binding child support agreement – consideration of exceptional circumstances – evidence of hardship. |
| Family Law Act 1975 (Cth) ss.60B, 60CC(2), (3), (4), (4A), 60CG, 61C, 61DA, 65DAA, 65DAC Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011(Cth) Child Support (Assessment) Act 1989 (Cth) ss.114, 121, 136(2),136(2)(a), 136(2)(b), 136(2)(d) |
| Saunders & Saunders (1976) FLC 90-078 Mulvany v Lane [2009] FamCAFC 76 Collu v Rinaldo [2010] FamCAFC 53 Goode & Goode [2006] FamCA 1346 Carlson & Ors & Bowden [2008] FamCA 1064 Bane & Bane (No.2) [2011] FamCA 790 Lennon & Lennon [2011] FamCA 571 Simpson & Hamlin (1984) FLC 91-576 |
| Applicant: | MR CHEEVER |
| Respondent: | MR BARRIE |
| File Number: | MLC 4629 of 2008 |
| Judgment of: | O'Sullivan FM |
| Hearing dates: | 15, 16 & 17 August 2012 |
| Date of Last Submission: | 17 August 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 5 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Hoult |
| Solicitors for the Applicant: | Coote Family Lawyers |
| The Respondent: | Appeared in person |
| Counsel for the Independent Children’s Lawyer: | Ms M. Agresta |
| Solicitors for the Independent Children’s Lawyer: | Lampe Family Lawyers |
ORDERS
That all previous parenting orders in relation to the children, [X] born [in] 2000 (“[X]”) and [Y] born [in] 2001 (“[Y]”) be discharged.
The mother have sole parental responsibility in respect of all major long term issues of each of the children, save that the mother shall, prior to making the sole ultimate decision about any issue:
(a)advise the father in writing of the decision intended to be made;
(b)seek the father’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 father in writing as soon as reasonably practicable of her ultimate decision.
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- AGLC
- CHEEVER & BARRIE [2012] FMCAfam 869
- Case
- [2012] FMCAfam 869
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were to determine whether sole parental responsibility should be awarded to the mother, as agreed by the parties, and if so, under what conditions. The court also had to decide on the appropriate arrangements for the children's time with their father, considering the best interests of the children. Additionally, the court needed to assess the evidence presented by the mother regarding her financial hardship and whether it constituted exceptional circumstances warranting a review of the child support agreement.
The court found that awarding sole parental responsibility to the mother was in the best interests of the children, subject to certain conditions. These conditions included the mother seeking and considering the father's input on major decisions, and both parents communicating effectively about the children's welfare. The court also set specific arrangements for the children's time with their father, balancing the need for stability with the importance of maintaining a relationship between the children and their father. Regarding the child support agreement, the court concluded that the evidence of hardship did not meet the threshold for exceptional circumstances, and thus the application to set aside the agreement was dismissed.
The court's final orders included discharging all previous parenting orders, awarding sole parental responsibility to the mother with specific conditions, establishing detailed arrangements for the children's time with their father, mandating ongoing therapeutic counselling for the children, and restraining both parents from verbally abusing each other in the presence of the children. The mother's application to set aside the child support agreement was dismissed, and all other applications were removed from the pending list.
Orders
Orders of the court
1.
That all previous parenting orders in relation to the children, [X] born [in] 2000 (“[X]”) and [Y] born [in] 2001 (“[Y]”) be discharged.
2.
The mother have sole parental responsibility in respect of all major long term issues of each of the children, save that the mother shall, prior to making the sole ultimate decision about any issue:
(a) advise the father in writing of the decision intended to be made;
(b) seek the father’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 father in writing as soon as reasonably practicable of her ultimate decision.
3.
Notwithstanding order (2) hereof:
(a) the mother do keep the father advised in writing at all times of the names of any school attended by the children and ensure that his name and contact details are included in any school documentation;
(b) the mother do authorise any school at which the children attend to provide to the father in respect of both children, copies of all school reports, newsletters, order forms for photographs and relevant information usually sent to parents and authorisation will be deemed effected by the mother providing to the school a copy of this order;
(c) the father is at liberty to communicate directly with the school authorities for the purpose of arranging to attend for and attend parent teacher interviews (separately to the mother) in regard to both children;
(d) the father is at liberty to attend all school functions and extra curricular activities to which parents are invited in the usual course in respect of [Y];
(e) the father is at liberty to communicate directly with school authorities from time to time to discuss all matters relevant to the welfare and educational progress of [X], save that the father shall not attend school for this purpose during school hours or whilst [X] is present, unless this is with the prior written agreement of [X] and the mother;
(f) the mother and father keep each other advised in writing of a current residential address and telephone number and advise in writing of any intended change at least 14 days prior to any change;
(g) the mother advise the father in writing of details of all medical and allied health professionals including counsellors, psychologists and psychiatrists who may be providing assistance or treatment to the children or either of them and provide an ongoing authority to these professionals to provide information to the father about all matters relevant to the health and welfare of the children upon a request by him for such information;
(h) the father is at liberty to communicate directly with the children’s medical professionals for the purpose of obtaining information as to matters relevant to their health and welfare including information about any treatment recommended or undertaken or medication prescribed;
(i) the mother advise the father as soon as practicable in the event that either child is prescribed medication on an ongoing basis for a mental health illness and prior to the child commencing such medication, advise the father of the name and contact details of the doctor prescribing such medication and the reason for the medication and the father is at liberty thereafter to discuss this issue with the said doctor;
(j) the mother do advise the father as soon as practicable in the event that the child, [X] suffers a significant illness or injury or requires hospitalisation; and
(k) the mother and father advise each other immediately in the event the child, [Y] suffers a significant illness or injury or requires hospitalisation whilst she is in their respective care.
4.
The children live with the mother.
5.
The child [Y] spend time and communicate with the father as follows:
(a) each alternate weekend from the conclusion of school or 3.30 pm (if it is a non school day) until the commencement of school on Monday (or 9.00 am if it is a non school day);
(b) from 5.00 pm on Christmas Day until 5.00 pm on Boxing day in 2012 and each alternate year thereafter;
(c) from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day in 2013 and each alternate year thereafter;
(d) for two hours on the child’s birthday and the father’s birthday as agreed and failing agreement from 3.30 pm until 5.30 pm on a weekday and from 10.00 am until 12.00 noon in a weekend;
(e) from 9.00 am until 5.00 pm on Father’s Day each year;
(f) by telephone each Wednesday between 6.30 pm and 7.30 pm with the father to initiate the telephone call; and
(g) by way of cards, gifts and letters.
6.
That the child [X] spend time and communicate with the father:
(a) as agreed between the child and the father from time to time; and
(b) by way of cards, gifts and letters at all reasonable times.
7.
For the purposes of order 5 herein changeover take place at the children’s school during school term and the [D] Library on all other occasions, or as may be agreed between the parties.
8.
The mother and father do all acts and things necessary to enable the children to engage in therapeutic counselling on an ongoing basis with a psychologist or counsellor nominated by the Independent Children’s Lawyer such counselling to assist the children to deal with the issues raised for them as a result of the parental separation and ongoing parental conflict and its effect on their relationships with their parents and particularly their father.
9.
To facilitate the operation of order 8 hereof:
(a) the mother and father share equally the costs of the counselling;
(b) the mother will have input in the counselling (at the discretion of the counsellor) and attend as and when directed by the counsellor and make the children available to attend as and when directed by the counsellor;
(c) the father shall have input into the counselling at the discretion of the counsellor and attend as and when directed by the counsellor;
(d) the appointment of the Independent Children’s Lawyer shall be discharged after 6 months from the date of this order to allow her to:
(i) nominate the counsellor and to assist to set the process in motion;
(ii) to explain the operation of these orders with the children; and
(iii) to oversee the parties in general for a period of 6 months;
(e) the Independent Children’s Lawyer shall be at liberty to provide to the counsellor copies of:
(i) this Order and judgment;
(ii) the Family report prepared by Ms T dated 20 March 2012;
(iii) the family report prepared by Mr H dated 28 June 2008; and
(iv) the psychiatric assessments of Dr E dated 4 April 2008 of both the mother and the father.
(f) the Independent Children’s Lawyer shall be at liberty to liaise with the counsellor as to the parties compliance with this order until the date of her discharge;
(g) in the event that the therapeutic counselling ceases as a result of the unilateral decision of either the mother or father, as a result of non compliance with this order by either the mother or the father or because in the opinion of the counsellor the therapeutic process is unable or unlikely to assist the family, the counsellor is at liberty upon a request by any party (including the Independent Children’s Lawyer if applicable) to prepare a report as to the counselling; and
(h) the Independent Children’s Lawyer explain the operation of these orders to the children within 14 days herein.
10.
That the parties, their servants and/or agents be and are hereby restrained from:
(a) verbally abusing, harassing, belittling or denigrating the other parent, their family and or members of their respective households, to and/or within the hearing of the children or either of them.
(b) discussing these proceedings within the hearing of the children and/or knowingly allowing the children or either of them access to documents filed in this matter.
11.
That time spent pursuant to order 5(a) herein is suspended in January 2013 so that [Y] can attend the jamboree.
12.
Any application for costs along with any affidavit and written submissions be filed and served within 14 days herein.
13.
Any response to such application along with any affidavit and written submissions be filed and served within 14 days thereafter.
14.
Unless requested otherwise any application for costs will be dealt with on the papers.
15.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
16.
That all extant applications including the mother’s application to set aside the Child Support Agreement are otherwise dismissed and removed from the Pending Cases List.
17.
Pursuant to rule 21.15 of the
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