FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COLLINS & LAWRENCE | [2011] FMCAfam 29 |
| FAMILY LAW – Children – final arrangements for parenting of children aged 7 & 5 – relocation – presumption of equal shared parental responsibility – father seeks equal time arrangement – father lives in [K] – mother lives in [B] – locations separated by 78 kilometres – best interests – nature of the parties’ parenting relationship – assessment of respective level of parental competence – what is reasonably practical – reality of familial situation. |
| Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC; 61DA; 65DAA, 65DAC, 65DAE |
| Collins & Lawrence [2010] FMCAfam 893 R & R: Children’s Wishes (1999) 25 Fam LR 712 |
| Applicant: | MR COLLINS |
| Respondent: | MS LAWRENCE |
| File Number: | ADC 2718 of 2010 |
| Judgment of: | Brown FM |
| Hearing dates: | 16 & 17 December 2010 |
| Date of Last Submission: | 17 December 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 21 January 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Collins – in person |
| Counsel for the Respondent: | Mr Boehm |
| Solicitors for the Respondent: | Andrew B Thiele & Co |
ORDERS
The parties will have equal shared parental responsibility for the children of the relationship [X] born [in] 2003 and [Y] born [in] 2005 (hereinafter referred to as “the children”).
In the exercise of their equal shared parental responsibility for the children the parties are to consult with each other in respect of all major long term decisions pertaining to the children, which include but are not limited to issues about:
(a)The children’s education (both current and future);
(b)The children’s religious and cultural upbringing;
(c)The children’s health (including psychological health);
(d)The children’s names; and
(e)Any changes to the children’s living arrangements which significantly interferes with the operation of these orders, particularly with the arrangements for the children to spend time with each parent.
In the event the parties are unable to come to a joint decision about any major long term issue pertaining to the children they are to jointly consult with a family dispute resolution practitioner as defined by section 10G of the Family Law Act1975 and seek the assistance of such family dispute resolution practitioner to come to a joint decision about the major long term issue pertaining to the children in dispute between them.
The mother and father shall:
(a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)Keep the other parent informed of the names and…
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- Collins and Lawrence [2011] FMCAfam 29
- Case
- [2011] FMCAfam 29
- Decision Date
CaseChat Overview and Summary
The primary legal issues that the court had to decide involved establishing the respective rights and responsibilities of each parent in exercising shared parental responsibility, determining the specific arrangements for the children's living arrangements and contact times, and setting out the processes for resolving future disputes between the parents. The court needed to balance the welfare of the children against the wishes of both parents, taking into consideration their ability to cooperate and make decisions in the children's best interests.
The court reasoned that the best interests of the children would be served by an arrangement that provided for equal shared parental responsibility between the parents. This arrangement included a detailed schedule for the children's time with each parent, with specific provisions for school terms, school holidays, and special occasions such as Christmas, Easter, and the children's birthdays. The court also mandated that the parents consult with each other on major long-term decisions and seek the assistance of a family dispute resolution practitioner if they were unable to reach an agreement. Additionally, the court ordered that both parents maintain open lines of communication, respect each other's privacy, and refrain from speaking negatively about the other parent in front of the children.
The court made specific orders to ensure the children's welfare, such as requiring the parents to keep each other informed about the children's health, education, and whereabouts. The court also allowed the parents to attend school events and receive information about the children's progress. The children were to reside with the mother, while the father was granted regular visitation rights during school terms, certain holidays, and special occasions.
In conclusion, the court's orders provided a comprehensive framework for the parents to share responsibility for their children, with detailed arrangements for contact times and decision-making processes. The court's decision aimed to promote cooperation between the parents and prioritise the children's best interests.
Orders
Orders of the court
1.
The parties will have equal shared parental responsibility for the children of the relationship [X] born [in] 2003 and [Y] born [in] 2005 (hereinafter referred to as “the children”).
2.
In the exercise of their equal shared parental responsibility for the children the parties are to consult with each other in respect of all major long term decisions pertaining to the children, which include but are not limited to issues about:
(a) The children’s education (both current and future);
(b) The children’s religious and cultural upbringing;
(c) The children’s health (including psychological health);
(d) The children’s names; and
(e) Any changes to the children’s living arrangements which significantly interferes with the operation of these orders, particularly with the arrangements for the children to spend time with each parent.
3.
In the event the parties are unable to come to a joint decision about any major long term issue pertaining to the children they are to jointly consult with a family dispute resolution practitioner as defined by section 10G of the Family Law Act 1975 and seek the assistance of such family dispute resolution practitioner to come to a joint decision about the major long term issue pertaining to the children in dispute between them.
4.
The mother and father shall:
(a) Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b) Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children; and
(c) Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.
5.
The parents authorise by this order, the schools, kindergartens and day care centres attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at the expense of the parent requesting same).
6.
During the time the children are with either parent, that parent shall:
(a) Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b) Speak of the other parent respectfully; and
(c) Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that other persons do not denigrate or insult the other parent in the presence or the hearing of the children.
7.
Each parent be at liberty to attend at the children’s school, pre-school or kindergarten for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.
8.
The children live with the mother in [B] in the State of South Australia.
9.
The children spend time with the father as follows:
(a) During school terms on alternate weekends from the conclusion of school on Friday (or 3.00pm if it is a pupil free day) until 5:00pm on the following Sunday or 5.00 pm the following Monday , in the event that Monday is a public holiday;
(b) For one half of each short school holiday period, the halves to be agreed between the parties and failing agreement to be the first half of each such holiday;
(c) For one half of each end of year school holiday period, on a week about basis, subject to the arrangements stipulated by these orders in respect of Christmas Day and Boxing Day in each year; and
(d) At other times and at any other occasions as may be agreed between the parties.
10.
The children be exchanged wherever possible at their school but otherwise at the respective homes of the parents’ or such other locations as they agree from time to time.
11.
For the purposes of any calculation necessary to implement these orders all school holidays are deemed to commence at 9.00 am on the first Saturday after school has ended for the term and to conclude at 9.00 am on the last Sunday of each such holiday period; the middle of each short school holiday will be 6.00 pm on the second Sunday after school has concluded in the preceding term; and all weeks during the end of year school holiday will commence and conclude at 9.00 am Saturday or 9.00 am on the day prior to school recommencing in the event of a part week.
12.
For the purposes of calculating the week about arrangement during each end of year school holiday the following provisions will apply:
(a) The father will have the second week of such holiday period and each alternate week, or part of week, thereafter prior to the conclusion of the holiday period, subject to the periods specified in orders (16) to (19) hereof in the event the children are in his care on the last weekend prior to the conclusion of the school year; and
(b) The father will have the second week of such school holiday period and each alternate week or part of week thereafter prior to the conclusion of the holiday period subject to the periods specified in orders (16) to (19) in the event the children are in his care on the penultimate weekend prior to the conclusion of the school year.
13.
The father’s time with the children, during school terms will recommence on the weekend following the recommencement of school in each term in the event that the children have spent the first half of the preceding school holiday with him and on the second weekend following the recommencement of school in the event that the father has spent the second half of the preceding school holiday with the children.
14.
If Father’s Day does not fall on a weekend that the children are otherwise living with the father pursuant to these orders the father spend time with the children from 5:00pm on the Saturday preceding Father’s Day until 5:00pm on Father’s Day.
15.
If Mother’s Day does not fall on a weekend that the children are otherwise living with the mother pursuant to these orders the mother spend time with the children from 5:00pm on the Saturday preceding Mother’s Day until 5:00pm on Mother’s Day.
16.
The children spend time with the father from 5:00pm on 24 December 2012 until 3:00pm on 25 December 2010 and each even ending year thereafter.
17.
The children spend time with the mother from 3:00pm on 25 December 2012 until 5:00pm on 26 December 2012 and each even ending year thereafter.
18.
The children spend time with the mother from 5:00pm on 24 December 2011 until 3:00pm on 25 December 2011 and each odd ending year thereafter.
19.
The children spend time with the father from 3:00pm on 25 December 2011 until 5:00pm on 26 December 2011 and each odd ending year thereafter.
20.
The children spend time with the father from 9:00am on Good Friday in 2011 until 3:00pm on Easter Sunday in 2011 and each alternate year thereafter.
21.
The children spend time with the mother from 3:00pm on Easter Sunday in 2011 until 5:00pm on Easter Monday in 2011 and each alternate year thereafter.
22.
The children spend time with the mother from 9:00am on Good Friday in 2012 until 3:00pm on Easter Sunday in 2012 and each alternate year thereafter.
23.
The children spend time with the father from 3:00pm on Easter Sunday in 2012 until 5:00pm on Easter Monday in 2012 and each alternate year thereafter.
24.
On each of the children’s birthday the parent with whom the children are not living pursuant to these orders spend a period of three (3) hours with the children at times to be agreed between the parties, bearing the mother’s working hours, and failing agreement to be between 4:00pm and 7:00pm.
25.
All applications be otherwise dismissed.
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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