COOLEN & COOLEN (No.2)

Case [2019] FCCA 2411


FEDERAL CIRCUIT COURT OF AUSTRALIA

COOLEN & COOLEN (No.2) [2019] FCCA 2411
Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D

Cases cited:

AMS and AIF (1999) 24 Fam LR 756

KB & TC (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458
Goode v Goode [2006] FamCAFC 1346; (2007) 36 FamLR 422, (2006) FLC 93-286
Knight & Knight [2016] FamCA 1085

Malcolm & Monroe [2011] FamCAFC 16
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Morgan v Miles [2007] FamCA 1230
MRR v GRR [2010] HCA 4
Sayer & Radcliffe and Anor [2012] FamCAFC 209)
Taylor v Barker [2007] Fam CA 1236
U & U 211 CLR 238

Applicant: MR COOLEN
Respondent: MS COOLEN
File Number: PAC 4209 of 2018
Judgment of: Judge Newbrun
Hearing dates: 11, 12 and 13 June 2019
Date of Last Submission: 13 June 2019
Delivered at: Parramatta
Delivered on: 24 September 2019

REPRESENTATION

Counsel for the Applicant: Mr Othen
Counsel for the Respondent: Ms Spain
Counsel for the Independent Children's Lawyer: Mr Sperling

ORDERS

  1. That the parents have equal shared parental responsibility for X born … 2018 (“X”).

  2. That the child X, lives with the mother.

  3. Within 56 days from the date of these orders, the mother shall do all acts and things necessary so as to cause X’s primary place of residence to be located in the Sydney Metropolitan area (such to be within a 30km driving distance of Suburb K, NSW) and until such time that this occurs, the arrangements as stipulated in the orders made on 1 February 2019 continue.

  4. Within 7 days prior to the mother’s move pursuant to order 3, the mother shall do all acts and things necessary so as to notify the father in writing of her new residential address.

  5. Upon the mother complying with order 3, the mother be and is hereby restrained from changing X’s primary place of residence to outside the Sydney Metropolitan area being more than a 30km driving distance of Suburb K, NSW.

  6. Upon the mother’s compliance with order 3, X spend time with the father as agreed in writing between both parents, but failing agreement as follows:

Until … 2020 (when X is approx. 2 years of age)

In week one (and each alternate week thereafter)

6.1.Each Monday and Wednesday from 3.30pm to 5.30pm;

6.2.Saturday from 8am to 12pm;

In week two (and each alternate week thereafter)

6.3.Each Monday and Wednesday from 3.30pm to 5.30pm;

6.4.Sunday from 8am to 12pm;

From 1 February 2020 until 30 April 2020 (From approx. 2 years to 2 years and 3 months of age)

In week one (and each alternate week thereafter)

6.5.Each Monday and Wednesday from 3.30pm to 5.30pm;

6.6.Saturday from 8am to 2pm;

In week two (and each alternate week thereafter)

6.7.Each Monday and Wednesday from 3.30pm to 5.30pm;

6.8.Sunday from 8am to 2pm;

From 1 May 2020 until…

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Details
AGLC
COOLEN & COOLEN (No.2) [2019] FCCA 2411
Case
[2019] FCCA 2411
Decision Date

CaseChat Overview and Summary

In the matter of COOLEN & COOLEN (No.2), Judge Newbrun of the Family Court of Australia made orders concerning the parenting arrangements for a child, X. The dispute centred on the best interests of X, born in 2018, and involved the parents' responsibilities and the child's living arrangements and time spent with each parent.

The court was required to determine the specific orders regarding X's parental responsibility, primary place of residence, and the detailed schedule for X to spend time with each parent. This included establishing conditions for the mother's relocation, outlining specific time arrangements for the father, and addressing holiday periods, birthdays, and other significant dates. The court also considered provisions for communication, international travel, and ancillary matters such as educational activities and health.

The court ordered that the parents share equal parental responsibility for X. X was to live with the mother, who was directed to establish X's primary residence within the Sydney Metropolitan area, specifically within a 30km driving distance of Suburb K, NSW, within 56 days. Until this relocation, existing arrangements were to continue. The orders then detailed a comprehensive schedule for X's time with the father, progressively increasing the duration and complexity as X aged, and also outlined X's time with the mother, particularly during school holidays. Further orders addressed communication protocols, international travel conditions, and the sharing of costs for X's passport. Ancillary orders included mandatory parenting programs, notification of address changes, respectful communication, and the use of a communication app. The court also made orders regarding the costs of the independent children's lawyer.

Orders

Orders of the court

1.

That the parents have equal shared parental responsibility for X born … 2018 (“X”).

2.

That the child X, lives with the mother.

3.

Within 56 days from the date of these orders, the mother shall do all acts and things necessary so as to cause X’s primary place of residence to be located in the Sydney Metropolitan area (such to be within a 30km driving distance of Suburb K, NSW) and until such time that this occurs, the arrangements as stipulated in the orders made on 1 February 2019 continue.

4.

Within 7 days prior to the mother’s move pursuant to order 3, the mother shall do all acts and things necessary so as to notify the father in writing of her new residential address.

5.

Upon the mother complying with order 3, the mother be and is hereby restrained from changing X’s primary place of residence to outside the Sydney Metropolitan area being more than a 30km driving distance of Suburb K, NSW.

6.

Upon the mother’s compliance with order 3, X spend time with the father as agreed in writing between both parents, but failing agreement as follows:

Until … 2020 (when X is approx. 2 years of age)

In week one (and each alternate week thereafter)

6.1. Each Monday and Wednesday from 3.30pm to 5.30pm;

6.2. Saturday from 8am to 12pm;

In week two (and each alternate week thereafter)

6.3. Each Monday and Wednesday from 3.30pm to 5.30pm;

6.4. Sunday from 8am to 12pm;

From 1 February 2020 until 30 April 2020 (From approx. 2 years to 2 years and 3 months of age)

In week one (and each alternate week thereafter)

6.5. Each Monday and Wednesday from 3.30pm to 5.30pm;

6.6. Saturday from 8am to 2pm;

In week two (and each alternate week thereafter)

6.7. Each Monday and Wednesday from 3.30pm to 5.30pm;

6.8. Sunday from 8am to 2pm;

From 1 May 2020 until 31 December 2020 (From approx. 2 years and 3 months to 3 years of age)

In week one (and each alternate week thereafter)

6.9. Each Monday and Wednesday from 3.30pm to 5.30pm;

6.10. Saturday from 8am to 5pm;

In week two (and each alternate week thereafter)

6.11. Each Monday and Wednesday from 3.30pm to 5.30pm;

6.12. Sunday from 8am to 5pm;

From … 2021 until 31 March 2021 (From 3 years to 3 years and 3 months

In week one (and each alternate week thereafter)

6.13. Each Monday and Wednesday from 3.30pm to 5.30pm;

6.14. Saturday from 1pm to Sunday 1pm;

In week two (and each alternate week thereafter)

6.15. Each Monday and Wednesday from 3.30pm to 5.30pm;

6.16. Sunday from 8am to 5pm;

From 1 April 2021 until 30 June 2021 (from 3 years and 3 months to 3 and a half years)

In week one (and each alternate week thereafter)

6.17. Each Monday and Wednesday from 3.30pm to 5.30pm;

6.18. Saturday from 8am to Sunday 1pm;

In week two (and each alternate week thereafter)

6.19. Each Monday and Wednesday from 3.30pm to 5.30pm;

6.20. Sunday from 8am to 5pm;

From 1 July 2021 until 31 December 2021 (From 3.5 years to approx. 4 years)

In week one (and each alternate week thereafter)

6.21. Each Monday and Wednesday from 3.30pm to 5.30pm;

6.22. Saturday from 8am to Sunday 5pm;

In week two (and each alternate week thereafter)

6.23. Each Monday and Wednesday from 3.30pm to 5.30pm;

6.24. Sunday from 8am to 5pm;

From … 2022 to 31 December 2022 (From approx. 4 years to 5 years)

In week one (and each alternate week thereafter)

6.25. Wednesday from 3.30pm to 5.30pm;

6.26. Friday from 4.30pm to Sunday 5pm;

In week two (and each alternate week thereafter)

6.27. Wednesday from 3.30pm to Thursday 9am

From … 2023 and on an ongoing basis thereafter (from approx. 5 years)

In week one (and each alternate week thereafter)

6.28. From the conclusion of school on Wednesday or 4.30pm if X is not at school until before school Thursday or if X is not attending school until 9am;

6.29. From the conclusion of school on Friday or 4.30pm if X is not at school until before school Monday or if X is not attending school until 9am;

In week two (and each alternate week thereafter)

6.30. From the conclusion of school on Wednesday or 4.30pm if X is not at school until before school Thursday or if X is not attending school until 9am;

7.

Notwithstanding anything else where contained in these Orders to the contrary, X spend time with the father as follows:

7.1. Upon X commencing school and commencing in the Term 2 school holidays of X’s first year of school, for one half of Term 1, 2 and 3 NSW school holiday periods being the first half in even numbered years and the second half in odd numbered years;

7.2. Upon X commencing school, for Term 4 NSW school holiday periods each alternate week such time to commence the first week in even numbered years and the second week in odd numbered years and for the purposes of this Order, such time to be for 7 consecutive nights commencing at 5pm and concluding at 5pm;

7.3. On the weekend that falls on Father’s Day, in 2020 from 9am to 5pm and from 2021 onwards, from 5pm on the Saturday preceding Father’s Day to 5pm Father’s Day;

7.4. On X or the Father’s birthday, if during the week from 5pm to 7pm and if on the weekend from 2pm to 6pm;

7.5. Provided such time does not fall pursuant to Order 7.1, during the Catholic Easter period, commencing in 2023 from 6pm Holy Thursday to 6pm Easter Saturday in even numbered years and from 6pm Easter Saturday to 6pm Easter Monday in odd numbered years;

7.6. Commencing in 2021, from 12pm Christmas Eve until 12pm Christmas Day in even numbered years and from 12pm Christmas Day to 12pm Boxing Day in odd numbered years;

7.7. At other times as agreed between the parents.

8.

Notwithstanding anything else where contained in these orders to the contrary, X spend time with the mother as follows:

8.1. Upon X commencing school and commencing in the Term 2 school holidays of X’s first year of school, for one half of Term 1, 2 and 3 NSW school holiday periods being the first half in odd numbered years and the second half in even numbered years;

8.2. Upon X commencing school, for Term 4 NSW school holiday periods each alternate week such time to commence the first week in odd numbered years and the second week in even numbered years and for the purposes of this order, such time to be for 7 consecutive nights commencing at 5pm and concluding at 5pm;

8.3. On the weekend that falls on Mother’s Day, in 2020 from 9am to 5pm and from 2021 onwards, from 5pm on the Saturday preceding Mother’s Day to 6pm Mother’s Day;

8.4. On X or the mother’s birthday, if during the week from after school or if a non school day from 3pm to 5pm and if on the weekend from 10am to 2pm;

8.5. Provided such time does not fall pursuant to order 8.1, during the Catholic Easter period, commencing in 2023 from 6pm Holy Thursday to 6pm Easter Saturday in odd numbered years and from 6pm Easter Saturday to 6pm Easter Monday in even numbered years;

8.6. Commencing in 2021, from 12pm Christmas Eve until 12pm Christmas Day in odd numbered years and from 12pm Christmas Day to 12pm Boxing day in even numbered years;

8.7. At other times as agreed between the parents.

9.

For the purposes of School Holiday periods:

9.1. The school holidays are to commence at 5pm on the last day that X is required to attend school;

9.2. The school holidays are to conclude at 5pm on the day before X is required to recommence school;

9.3. For Term 1, 2 and 3 school holidays, changeover shall occur on the mid-point day of the particular holiday period at 5pm (usually a Saturday);

9.4. For Term 4 school holidays, changeover shall occur at 5pm.

Changeover

10. For the purpose of these orders, the parent who is due to commence time with X pursuant to these orders shall collect X from school if time commences from school otherwise from the other parent’s place of residence. For the purposes of changeover, such can take place by the parent or their nominee known to the child.

Telephone communication

11. As from 1 July 2021, the father be at liberty to telephone or video call (either by skype or facetime) X when he is not in his care each Tuesday and Thursday between 6.30pm and 7pm and for the purpose of this order, the father shall call the mother and the mother shall facilitate such communication.

12. As from 1 July 2021, the mother be at liberty to telephone or video call (either by skype or facetime) X when he is not in her care each Tuesday and Thursday between 6.30pm and 7pm and for the purpose of this order, the mother shall call the father and the father shall facilitate such communication.

International travel

13. As from 1 July 2022, each party be entitled to travel overseas with X upon provision to the other parent of:

13.1. At least 28 days written notice of their intention to travel;

13.2. Full details of the itinerary evidencing outbound and return flights and accommodation;

13.3. Full copy of itinerary;

13.4. Full copy of X’s contact details whilst overseas;

On the condition that either the mother or father (as the case may be) accompanies X, that such travel is for no longer than a period of 21 days and that such travel does not exceed more than once per year.

14. The parties shall do all acts and things to ensure that X always has a valid Australian passport and for the purposes of issuing the passport, each party will pay one half of the said costs.

15. X’s passport shall be held in the mother’s possession.

16. To give effect to order 12, the mother shall provide to the father X’s passport within 7 days from him requesting the said passport and after the father has finalised his travel with X, he shall forthwith return the passport to the mother.

Ancillary orders

17. That within 28 days of the mother’s compliance with order 3, both parents will enrol in Uniting’s “Keeping contact” program and will do all things necessary to complete the program as soon as reasonably practicable and inform the other parent in writing within 7 days of enrolment in same.

18. That within 28 days of the mother’s compliance with order 3, both parents will enrol in the “Keeping kids in mind” course and will do all things necessary to complete the course as soon as reasonably practicable and inform the other parent in writing within 7 days of completion of same.

19. Each party notify the other not more than 24 hours after any change to their address and/or landline and/or mobile telephone number.

20. Each party will respond as soon as reasonably practicable to the other party’s communication concerning X.

21. Each party shall encourage and support X to participate in extra-curricular activities and each party shall be at liberty to attend same.

22. Each party be at liberty to attend any school events including but not limited to assemblies, parent/teacher interviews and school carnivals.

23. The father and mother shall provide to the other any medication prescribed for X whilst he is in their care, along with information as to how that medication is to be taken and each party is to ensure that X takes his medication as prescribed.

24. Each party notify the other as soon as possible, in any event, within 4 hours, of any serious injury or illness suffered by X whilst he is with that party.

25. The parties will ensure they speak courteously and respectfully to one another without the use of belittling or derogatory language.

26. The parties are restrained from denigrating one another or a member of the other parent’s family in the presence or hearing of X and will take reasonable steps to ensure that other people do not denigrate the other parent or their family in the presence or hearing of X.

27. Within 28 days the parents will arrange for the use of a communication app designed for use by separated parents and will maintain use of such app as their primary source of communication except in case of emergency whereby the parents will communicate via telephone and the parents be jointly responsible for the cost of the communication app.

Independent children’s lawyer’s costs

28. That within 28 days of the date of these orders, the applicant shall pay to Legal Aid NSW the sum of $4,078.00, being one half of the costs of the independent legal representation for X.

29. That within 28 days of the date of these orders, the respondent shall pay to Legal Aid NSW the sum of $4,078.00, being one half of the costs of the independent legal representation for X.

Notation A: Both parents will use their best endeavours to ensure that the father’s alternate weekend time with X coincides with the weekend that the father has his son A in his care.

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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