FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLAYTON & HACKER | [2009] FMCAfam 114 |
| FAMILY LAW – Parenting – relocation – protecting children from harm – views expressed by the children – relationship between children, their parents and other significant persons – willingness and ability to facilitate and encourage relationship – likely affect of changes on the children – practical difficulty and expense – capacity of the parents to provide the needs of the children – maturity of the children – attitudes to the children – order least likely to lead to further proceedings – equal shared parental responsibility or sole parental responsibility – equal time or substantial and significant time – what order is in the best interest of the children. |
| Family Law Act 1975, ss.60B, 60CC, 61 DA, 65DAA |
| Bolitho & Cohen (2005) FLC 93-224 Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4 |
| Applicant: | MR CLAYTON |
| Respondent: | MS HACKER |
| File Number: | SYM 590 of 2006 |
| Judgment of: | Altobelli FM |
| Hearing date: | 20 November 2008 |
| Date of Last Submission: | 21 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2009 |
REPRESENTATION
| Applicant: | Self Represented |
| Counsel for the Respondent: | Ms De Vere |
| Solicitors for the Respondent: | Hall Payne Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Alexander |
| Solicitors for the Independent Children’s Lawyer: | Verekers Lawyers |
ORDERS
That the mother have sole parental responsibility for the children, [X] born in 1995, [Y] born in 1998 and [Z] born in 2000 (“the children”) except as regards all decisions in relation to the children’s name and religious matters in respect of which the parents shall share parental responsibility.
That the children live with their mother.
That the parents communicate as follows:
(a)By email at any time, with the mother to provide to the father the email address of the children and the father to provide to the mother his email address;
(b)By telephone once per week (and otherwise on the father’s and children’s…
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- Clayton and Hacker [2009] FMCAfam 114
- Case
- [2009] FMCAfam 114
- Decision Date
CaseChat Overview and Summary
The court considered various factors, including the children's best interests, the parents' capacity to provide for the children's needs, and the impact of the proposed arrangements on the children. It was particularly important to assess the parents' ability to co-parent effectively and to minimise any potential harm to the children resulting from the parents' conflict. The court also needed to evaluate the proposed communication and visitation schedules to ensure they were practical and conducive to maintaining a healthy relationship between the children and their father.
The court ultimately concluded that the mother should have sole parental responsibility, except for decisions related to the children’s name and religious matters, which the parents would share. The children were ordered to live with their mother, and specific arrangements were made for the father's visitation and communication with the children. The court detailed a structured schedule for the father's time with the children, including set periods during school holidays and specific rules for communication and information sharing between the parents. Restrictions were also placed on the parents' conduct to protect the children from exposure to conflict and negative behaviour.
In addition to the parenting orders, the court made specific provisions regarding financial responsibilities, including the father's contribution to expert reports and the costs associated with transportation for visitation. The court also mandated family dispute resolution and mediation as steps to be taken before seeking further court intervention regarding the children's care.
Orders
Orders of the court
1.
That the mother have sole parental responsibility for the children, [X] born in 1995, [Y] born in 1998 and [Z] born in 2000 (“the children”) except as regards all decisions in relation to the children’s name and religious matters in respect of which the parents shall share parental responsibility.
2.
That the children live with their mother.
3.
That the parents communicate as follows:
(a) By email at any time, with the mother to provide to the father the email address of the children and the father to provide to the mother his email address;
(b) By telephone once per week (and otherwise on the father’s and children’s birthdays and on Christmas Day (the “special days”)), with the father to initiate a telephone call on either Friday or Sunday and on the special days between 6:00pm and 6:30pm and the mother to facilitate that telephone communication or, if such a call is not facilitated by the mother, the mother is to ensure the children make a telephone call to the father between 6:30pm and 7:00pm on the same day; and
(c) By maintaining email contact with each other for the purpose of providing information and seeking advice in relation to the children.
4.
That the father spend time with the children as follows:
(a) For four (4) consecutive days in January 2009 between 9:00am and 6:00pm, with the father to give to the mother twenty one (21) days’ written notice of the relevant dates;
(b) For three (3) consecutive days commencing at 9.00am on the first day and concluding at 6.00pm on the third day during the Easter school holidays 2009, with such time to take place in Queensland and with the father to give the mother thirty (30) days’ written notice of the relevant dates;
(c) For four (4) consecutive days commencing at 9.00am on the first day and concluding at 6.00pm on the fourth day during the holiday periods at the end of terms two and three 2009, with such time to take place in Queensland and with the father to provide thirty (30) days’ notice of the relevant dates to the mother.
(d) PROVIDED THAT the father has spent time with the children at least twice in accordance with orders 4(a)-(c) above, then thereafter the father to spend time with the children for one (1) week during school holidays on each of four (4) occasions per year on the following conditions:
(i) Such time may take place at any location advised to the mother on at least thirty (30) days’ notice;
(ii) No more than two such weeks may occur during the Christmas holiday period; and
(iii) No more than one such week may occur in any other school holiday period.
(e) If the father fails to comply with paragraph (d) above, then orders 4(a) to 4(d) lapse.
(f) Such further time as agreed but from 9.00am Saturday to 6.00pm Sunday on one weekend each school term provided that the father provides thirty (30) days’ notice to the mother and such time occurs in Queensland.
5.
Both parents are hereby restrained from:
(a) Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s hearing or presence.
(b) Discussing any proceedings or the relationship between the parents in the presence or hearing of the children or permitting any other person to do so, except to the extent necessary to provide the children with an outline of the effect of these orders.
6.
The parents provide the other parent with at least fourteen (14) days’ notice in writing of any proposed change in residential address, telephone number or email address or, if such notice is not possible, as soon as possible after such date.
7.
The mother provide to the father the names and addresses of any of the children’s treating doctors, dentists and health care providers.
8.
The mother authorise the children’s doctors, treating practitioners (including psychologists or counsellors) and school to release to the father any information or reports regarding the children or any one of them.
9.
The father be restrained from being intoxicated or from consuming alcohol whilst the children are in his care.
10.
The mother use her best endeavours to provide to the father a copy of any videos of the children, with the cost of doing so to be borne by the father.
11.
The father make payment with fourteen (14) days of his contribution to the costs of the provision of Dr Quadrio’s report dated 10 September 2007, being the amount of $1,732.50.
12.
That in the event the parents cannot reach a joint decisions about:-
(a) a major long-term issue involving the Child; or
(b) the interpretation of these Orders; or
(c) the implementation of these Orders; or
(d) the enforcement of these Orders; which involve the child,
each of the parents will do all things necessary to participate in Family Dispute Resolution at an Organisation recognised under the Family Law Act.
13.
That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the Children or of the parties, each of the parents is to take the following steps:-
14.
The Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act; and
15.
The Father and the Mother shall each participate in Family Dispute Resolution with an Organisation recognised under the Family Law Act.
NOTATIONS
16.
It is intended that the father bear the whole cost of transportation for the purpose of spending time with the children on the basis the father will be entitled to deduct such an amount from the child support obligation he would otherwise have.
17.
Such time as these Orders provide for the children to spend with the father might not be in the best interests of the children if the father relocated to an area significantly closer to the children.
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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