FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLEMENT & CLEMENT (No.3) | [2012] FMCAfam 37 |
| FAMILY LAW – Parenting – change in circumstances – where father has relocated back to Sydney after previous orders made – whether mother should deliver the child to the father’s residence – whether time that the child spends with the father should be extended – whether the time with the father during the long summer holidays should be spent in a block period. FAMILY LAW – Practice and procedure – permissibility of the Bench questioning a witness – ‘leading’ questions from the Bench – statutory and common law basis for judicial officer posing questions to a witness. |
| Evidence Act 1995 (Cth), s.37 Family Law Act 1975 (Cth), ss.4, 60CC, 60CA, 61B, 61C, 61DA, 64B, 65DAA, 69ZM, 69ZN, 69ZX, 117 Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Federal Magistrates Court Act 1999 (Cth), s.63 |
| Cooper v Cooper (1977) FLC 90-234 Clement & Clement [2010] FMCAfam 1143 Clement & Clement (No.2) [2010] FMCAfam 1473 In the Marriage of Bainrot (1976) FLC 90-003 In the Marriage of Filipovic (1977) FLC 90-266 In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 In the Marriage of Lonard (1976) 2 Fam LR 11,116 In the Marriage of Stavros (1984) FLC 91-562; (1984) 9 Fam LR 1025; (1984) 75 FLR 323 Jones v National Coal Board [1957] 2 QB 55; [1957] 2 All ER 155 Lindell & Ranteri [2010] FamCA 52 Rice & Asplund (1978) 6 Fam LR 570 Sheen & Paulo [2007] FamCA 1175 TVT & TLM (2006) FMCAfam 20 |
| Applicant: | MR CLEMENT |
| Respondent: | MS CLEMENT |
| File Number: | PAC 2925 of 2008 |
| Judgment of: | Monahan FM |
| Hearing dates: | 19, 20 and 21 October 2011 |
| Date of Last Submission: | 21 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Connor |
| Solicitors for the Applicant: | Argyle Lawyers Pty Ltd |
| Counsel for the Respondent: | Mr Sansom |
| Solicitors for the Respondent: | Watts McCray Lawyers |
ORDERS
All existing parenting orders in relation to [X], born [in] 2002 (“the child”) be discharged.
MR CLEMENT (“the Father”) and MS CLEMENT (“the Mother”) have equal shared parental responsibility for the child.
The child live with the Mother.
The child spend time with the Father as agreed between the parties or, failing agreement, as follows:
(a)During school terms:
(i)commencing on a Friday to be fixed, and in each alternate week thereafter until the end of Term 2 in 2012, the Father spend time with the child from 7:00pm on Friday until before school on Monday (or extended to before school Tuesday in the event that Monday is a non-school day);
(ii)commencing in the first school week of Term 3 in 2012, and in each alternate week thereafter, the Father spend time with the child from 7:00pm on Friday until before school on Tuesday (or 9:00am in the event that Tuesday is a non-school day);
(b)During the short NSW gazetted school holiday periods at the conclusion of terms one,…
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- CLEMENT & CLEMENT (No.3) [2012] FMCAfam 37
- Case
- [2012] FMCAfam 37
- Decision Date
CaseChat Overview and Summary
The court had to decide several legal issues, including the permissibility of the Bench questioning a witness and the basis for judicial officers posing questions to a witness under statutory and common law. The court also needed to determine whether the existing parenting orders should be altered in light of the father's relocation and if there was a change in circumstances warranting a modification of the current arrangements.
The Family Court of Australia concluded that all existing parenting orders should be discharged and new orders issued. The court found that both parents should have equal shared parental responsibility for the child. The child would live with the mother, but spend specific periods with the father during school terms and holidays. Detailed arrangements were set for the timing and duration of these periods, with specific instructions for changeovers and communication between the parties. The court also outlined the procedures for interstate or overseas travel with the child, communication between the parents, and the completion of a parenting program. The final orders emphasized the importance of maintaining communication and cooperation between the parents for the child’s welfare.
Orders
Orders of the court
1.
All existing parenting orders in relation to [X], born [in] 2002 (“the child”) be discharged.
2.
MR CLEMENT (“the Father”) and MS CLEMENT (“the Mother”) have equal shared parental responsibility for the child.
3.
The child live with the Mother.
4.
The child spend time with the Father as agreed between the parties or, failing agreement, as follows:
(a) During school terms:
(i) commencing on a Friday to be fixed, and in each alternate week thereafter until the end of Term 2 in 2012, the Father spend time with the child from 7:00pm on Friday until before school on Monday (or extended to before school Tuesday in the event that Monday is a non-school day);
(ii) commencing in the first school week of Term 3 in 2012, and in each alternate week thereafter, the Father spend time with the child from 7:00pm on Friday until before school on Tuesday (or 9:00am in the event that Tuesday is a non-school day);
(b) During the short NSW gazetted school holiday periods at the conclusion of terms one, two and three, for one half of each holiday period with such half to be as agreed between the parties or, failing agreement, as follows:
(i) the second half in even-numbered years on days and times as agreed, or failing agreement as to days and times from Friday in the last week of the relevant school term at 7:00pm until the midpoint Saturday at 5:00pm; and
(ii) the first half in odd-numbered years on days and times as agreed, or failing agreement as to days and times from the midpoint Saturday at 5:00pm until the Sunday immediately prior to the first week of the relevant school term at 5:00pm.
(c) During the long summer school holidays commencing in December 2012 and each long summer holiday period thereafter, for one half of that holiday period as agreed between the parties or, failing agreement, as follows:
(i) The first half in even-numbered years on days and times as agreed, or failing agreement as to days and times from the first Saturday at 10:00am until the relevant day closest to the midpoint of the holiday period at 5:00pm; and
(ii) The second half in odd-numbered years on days and times as agreed, or failing agreement as to days and times from the relevant day closest to the midpoint of the holiday period at 10:00am until the Sunday immediately prior the commencement of term one at 5:00pm.
AND FOR THE AVOIDANCE OF DOUBT paragraph 4(a)(ii) herein will recommence in the first week of each school term with the child spending time with the Father on the first Friday of the first week of each school term.
5.
For the purpose of paragraph 4 herein changeover occur as agreed or, failing agreement, as follows:
(a) During school terms:
(i) at the commencement of the time the child spends with the Father the Mother take and deliver the child to the Father at the Father’s residence on the relevant day;
(ii) at the conclusion of the time that the child spends with the Father, the Father take and deliver the child to the Mother’s residence, except on school days when he returns the child to school;
(b) During all school holiday periods:
(i) at the commencement of the time the child spends with the Father the Mother take and deliver the child to the Father at the Father’s residence on the relevant day;
(ii) at the conclusion of the time that the child spends with the Father, the Father take and deliver the child to the Mother at the Mother’s residence on the relevant day.
6.
In the event that the Mother would be likely to arrive at the Father’s residence prior to 7:00pm in facilitating changeover on any relevant Friday in accordance with paragraph 4 herein, the Mother notify the Father in advance of her arrival at the Father’s residence.
7.
In the event that the Mother is unable to take and deliver the child to the Father’s residence on any relevant Friday in accordance with paragraph 4 herein due to work commitments, the Mother provide at least 24 hours notice to the Father and the Father or his nominee collect the child from school or from such other place as agreed and otherwise ensure that the child’s after-school commitments that day are facilitated by the Father, or his nominee.
8.
The Father facilitate and otherwise ensure that the child attends school on all school days when the child is in his care in accordance with paragraph 4 herein.
9.
In the event that either the Mother or the Father are unable to facilitate changeover then either may nominate an appropriate person to facilitate same.
10.
In the event that the child is not otherwise doing so in accordance with these orders or by agreement of the parties, the child spend time with the Father on Father’s Day each year with the times and changeover to occur as agreed or, failing agreement with the Father collecting the child from the Mother at 10:00am and the Mother then collecting the child from the Father at 5:00pm.
11.
In the event that the child is not otherwise doing so in accordance with these orders or by agreement of the parties, the child spend time with the Mother on Mother’s Day each year with the times and changeover to occur as agreed or, failing agreement with the Mother collecting the child from the Father at 10:00am and the Father then collecting the child from the Mother at 5:00pm.
12.
During school terms, when the child is living with the Mother, the child communicate with the Father by telephone (or such other available electronic means such as Skype) at such times as agreed between the parties or, failing agreement the Father nominate two evenings per week for this communication time to occur for a maximum 30 time minute period between 5:00pm and 7:00pm.
13.
Similarly during school terms, when the child is spending time with the Father, the child communicate with the Mother by telephone (or such other available electronic means such as Skype) at such times as agreed between the parties or, failing agreement, the Mother nominate one evening for this communication to occur for a maximum 30 minute time period between 5:00pm and 7:00pm.
14.
During all school holiday periods, the child communicate with the party with whom they are not spending time by telephone (or such other available electronic means such as Skype) at such times as agreed between the parties or, failing agreement, each party nominate two times each week for this communication to occur for a maximum 30 minute time period between 5:00pm and 7:00pm.
15.
To facilitate paragraphs 12 to 14 herein, each party provide the other with their nominated communication times in writing within seven days of the date of these orders and thereafter if either party wishes to change their nominated times they provide the other party with at least seven days written notice.
16.
In the event that either party seeks to travel interstate or overseas with the child then that party provide the other with reasonable notice of not less than 21 days of their intention to travel with the child and such notice is to include:
(a) A written itinerary of the relevant plane, train and/or bus bookings and details;
(b) All accommodation details, including telephone numbers and websites where available; and
(c) A final written itinerary within seven (7) days of departure provide details of travel insurance and confirmation that the child has been registered on the Australian Government’s “Smart Traveller” website.
17.
The Father be granted leave to provide a copy of these Orders to the child’s school and request that a copy of all school reports, school notices and newsletters and such in relation to the child be forwarded to the Father, at his expense, if applicable.
18.
In the event that the school requires the Mother to provide an authority to facilitate paragraph 17 herein then the Mother forthwith sign any necessary authority.
19.
The parties keep the other advised at all times of their current residential address, email addresses and landline and mobile telephone numbers.
20.
The parties:
(a) advise the other immediately in the event that the child suffers any serious illness or injury including details as to any medical practitioner, hospital or medical practise attended; and
(b) authorise any medical practitioner, hospital or medical practise upon or at which the child may attend from time to time, to communicate with the other party in respect to the child’s medical condition and/or requirements;
21.
Both parties keep the other informed about the child’s activities, health, education and development through the use of a communication book to be exchanged between the parties each time the child moves from the care of one party to the other, as well as at other times should there be a need for communication about such matters, with such communication book to be initially purchased by the Mother and replaced by the party with whom the child is living or spending time at the time when the existing communication book is filled.
22.
Each party be restrained from denigrating:
(a) the other party;
(b) any partner of the other party; or
(c) any family member of the other party
in the presence or hearing of the child.
23.
In the event that the parties are unable to reach agreement relating to the child’s long term care, welfare and development the parties participate in family dispute resolution.
24.
Pursuant to s.13C of the Family Law Act 1975 the parties:
(a) attend and complete, as soon as practicable, a parenting orders program such as “[omitted program]” (“the Program”) at an organisation as agreed or, failing agreement, at [organisation omitted];
(b) sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c) if applicable, pay and otherwise be responsible for all costs associated with the Program; and
(d) provide an appropriate certificate of completion of the program to the other party or the other party’s solicitor;
and the Court notes that the purpose of this Order is to assist the parties to develop the ability to communicate with each other and to act in a more child-focused manner.
25.
All extant applications before this Court be otherwise dismissed.
AND THE COURT NOTES THAT:
(A) Pursuant to ss.65DA(2) and 62B 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 those particulars are included in these orders.
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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