Clarence & Clarence

[2008] FamCA 99

FAMILY COURT OF AUSTRALIA

CLARENCE & CLARENCE [2008] FamCA 99

FAMILY LAW – CHILDREN – Consent orders for time spent with each parent

APPLICANT: MS CLARENCE

RESPONDENT: MR CLARENCE

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 5869 of 2002

DATE DELIVERED: 15 February 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D. Crabtree

SOLICITOR FOR THE APPLICANT: Donald S Lampe

COUNSEL FOR THE RESPONDENT: Mr Combes

SOLICITOR FOR THE RESPONDENT: Susan Snyder

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Pavone

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Forte Family Lawyers

Orders by consent

1. THAT all previous Parenting Orders made in these proceedings be discharged.

2. THAT the father and mother have equal shared parental responsibility for the two children of the marriage, M… born … August 1994 and C… born … November 1996 (“the children”).

3. THAT the children live with the mother.

4. THAT each of the mother and father has responsibility for the day to day care, welfare and development of the children when they are in their respective care.

5. THAT the  children spend time and communicate with the father as follows:

   a.From the conclusion of school Thursday until the commencement of school Monday (or Tuesday in the event that Monday is a public holiday or non-curriculum day) on a fortnightly basis during school terms and that such contact be suspended during all school term and Christmas holidays, commencing Thursday 21^st February 2008.

   b.Each Thursday during school terms from the conclusion of school until the commencement of school on Friday morning save that:

   i.In the event that the Thursday is a non-curriculum day, the mother will deliver the child/children to the father’s home at 6.00 p.m.

   ii.In the event that the Friday is a non-curriculum day and a non-contact day, the father will deliver the child/children to the mother’s home between 7.00 a.m. and 7.30 a.m.

   c.With the child, M, only from after school on the first Wednesday when the husband spends weekend time with the children in each calendar month until the commencement of school the following Monday:

   i.In the event that the Wednesday is a non-curriculum day, the mother will deliver M to the father’s home at 6.00 p.m.

   d.With the child C, from after school on the second Wednesday when the husband spends weekend time with the children, in each calendar month until the commencement of school the following Monday:

   i.In the event that the Wednesday is a non-curriculum day, the mother will deliver C to the father’s home at 6.00 p.m.

   e.By telephone at reasonable times prior to 8.00 p.m., the calls to be placed by father to the mother’s landline telephone and the mother to facilitate the children taking the calls.

   f.For one-half of all school term holidays, the father to have the first half of the school holidays in each year with the father to collect the children from school and deliver them to the mother’s residence at 6.00 p.m. on the middle Saturday of the term holidays.

   g.For the first half of the Christmas school holidays in 2009 and each alternate year thereafter, save that such time be suspended from 4.00 p.m. Christmas Day until 12.00 noon on 26 December when the children will spend time with the mother.  The changeover location for this period to be by agreement.  Failing agreement the children are to be delivered to the other parents’ residence.

   h.For the second half of the Christmas school holidays in the year 2008 and each alternate year thereafter, and from  4.00 p.m. on Christmas Day until 12.00 noon on 26 December in 2009 and each alternate year thereafter.  The changeover location for this period to be by agreement. Failing agreement the children are to be delivered to the other parents’ residence.

   i.The Children are to spend Father’s Day with the father or Mother’s Day with the mother with the times being Saturday evening 6.00 p.m. until 4.00 p.m. the following day.  The parent with whom the children are with is to facilitate the delivery of the children to the residence of the other parent. 

   j.The children are to spend their birthdays with the mother and father as follows:

   i.Both children on … August and … November from the conclusion of school until the commencement of school the following day with the mother in the year 2007 and the father in the year 2008 and each alternate year thereafter.  (In the event that the children’s birthday falls on a non-school day, from 6.00 p.m. on the children’s birthday until between 7.00 a.m. and 7.30 a.m. the following day.

6. THAT for the purposes of any changeovers not already covered in these Orders, the following will apply:

   a.Changeover locations are by agreement, failing agreement the parent with whom the children are with is to facilitate the delivery of the children to the residence of the other parent by 6.00 p.m.

7. THAT all periods of time that the husband shall spend with the children during school term shall recommence after any school holiday period as if the school holiday period had not taken place.

8. THAT the mother provide the father with child, C’s, ADHD medication at the commencement of all times C spends with the father and the father return the medication to the wife at the conclusion of all such times.

9. THAT each of the mother and father shall use their best endeavours to be respectful of the other at all times whilst in the presence of the children or either of them.

10. THAT the mother and father do all such acts and things and sign all such documents as are necessary to obtain passports for the children.  The wife shall hold the passports when issued.

11. THAT each party shall be permitted to take the children on overseas holidays upon giving the other party at least 30 days notice and providing them with an itinerary of the proposed trip.

12. THAT all applications filed on behalf the mother and all responses filed on behalf of the father be and are hereby dismissed.

13. THAT the matter be removed from the Active Pending Cases List.

14. THAT pursuant to s.65DA(2) and s.62B, 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.

IT IS NOTED that publication of this judgment under the pseudonym Clarence & Clarence is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5869 of 2002

MS CLARENCE

Applicant

And

MR CLARENCE

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between the father and the mother in relation to their daughter M and son C.  I am not going to go into any substantial detail because of the fact that there is a number of other people in court.  The father and the mother know what the problems about all of this are and today was to have been the first day of their trial to resolve the problem overall.  Consistent with that process each party filed a questionnaire setting out their hopes and aspirations for the children and it was very gratifying yesterday for me to read that both of the parents had worked on their proposals quite substantially and were very little apart in what they ultimately wanted to do.  This morning and obviously with the assistance of the independent children's lawyer, any gap that remained has been bridged and the parties have come to a very sensible outcome and to the extent that I need to say so I am satisfied that these orders are in the best interests of both of the children.

I certify that the preceding paragraph is a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:  

Date:  22 February 2008