FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUNNINGHAM & CUNNINGHAM (No.2) | [2015] FCCA 1332 |
| Catchwords: FAMILY LAW – Application for parenting orders – competing applications for live with and spend time orders – dispute over parental responsibility – evidence of independent expert – where not in children’s best interests for their parents to have equal shared parental responsibility – where not in best interests to spend equal time – where in best interests to live with the mother and spend substantial and significant time with the father. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65DAA |
| Cases cited: Hall & Hall (1979) FLC 90-713 |
| Applicant: | MR CUNNINGHAM |
| Respondent: | MS CUNNINGHAM |
| File Number: | DGC 3065 of 2013 |
| Judgment of: | Judge O’Sullivan |
| Hearing dates: | 9, 10 & 16 April 2015 |
| Date of Last Submission: | 7 May 2015 |
| Delivered at: | Dandenong |
| Delivered on: | 12 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | By his solicitor Mr Mulligan |
| Solicitors for the Applicant: | Goodman Group Lawyers (until 7 May 2015) |
| Counsel for the Respondent: | Ms Fisken |
| Solicitors for the Respondent: | Morley Naughton Pearn & Cook Lawyers |
ORDERS
That the mother have sole parental responsibility for the children of the marriage:
X born (omitted) 2009; and
Y born (omitted) 2011
(hereinafter referred to as “the children”) save that the mother shall, prior to making the sole ultimate decision about any issue:
(a)advise the father in writing of the decision intended to be made;
(b)seek the father’s written response in relation thereto;
(c)consider by reference to the best interests of the children any such response prior to making any such decision; and
(d)advise the father in writing as soon as reasonably practicable of her ultimate decision.
That the children live with the mother.
That the children spend time and communicate with the father as follows:
(a)During school term periods:
(i)Each alternate weekend from the conclusion of school Friday until the commencement of school Monday (extended until the commencement of school Tuesday if Monday is a public holiday).
(ii)Each alternate Thursday (in the “off week”) from the conclusion of school Thursday until the commencement of school Friday.
(b)During school term holiday periods:
(i)In 2015 and each alternate year thereafter, from the conclusion of school on the last day of term until 12.00pm on the middle Saturday; and
(ii)In 2016 and each alternate year thereafter, from 12.00pm on the middle Saturday until 12.00pm on the last Sunday of the school term holiday period.
(c)For one half of the long summer holiday period at dates and times as agreed, and failing agreement:
(i)In 2015/16, on a week about basis with the…
Continue reading Cunningham and Cunningham (No.2)
Sign in free to access the full text
- AGLC
- Cunningham and Cunningham (No.2) [2015] FCCA 1332
- Case
- [2015] FCCA 1332
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific orders regarding the children's living arrangements, the extent and nature of the time the children would spend with each parent, and how parental responsibility would be exercised. This included decisions on who would have sole parental responsibility, the specifics of the children's time with the father during school terms and holidays, and provisions for communication and special occasions. The court also had to consider orders relating to the children's schooling, medical care, and restrictions on parental conduct in the children's presence.
Judge O’Sullivan ordered that the mother have sole parental responsibility for the children, subject to specific requirements for consultation with the father before making ultimate decisions on certain issues. The children were ordered to live with the mother. Detailed provisions were made for the children to spend time and communicate with the father, including specific arrangements for weekends, school holidays, Christmas, New Year, birthdays, and regular telephone contact. The orders also stipulated the location for changeovers, the enrolment of the children in specific schools, and the father's right to access school information and attend school activities. Further orders addressed the nomination of a treating general practitioner for the children and imposed restraints on both parents from verbally abusing, harassing, belittling, or denigrating the other parent in the children's presence, or allowing the children access to court documents.
Orders
Orders of the court
1.
That the mother have sole parental responsibility for the children of the marriage:
X born (omitted) 2009; and
Y born (omitted) 2011
(hereinafter referred to as “the children”) save that the mother shall, prior to making the sole ultimate decision about any issue:
(a) advise the father in writing of the decision intended to be made;
(b) seek the father’s written response in relation thereto;
(c) consider by reference to the best interests of the children any such response prior to making any such decision; and
(d) advise the father in writing as soon as reasonably practicable of her ultimate decision.
2.
That the children live with the mother.
3.
That the children spend time and communicate with the father as follows:
(a) During school term periods:
(i) Each alternate weekend from the conclusion of school Friday until the commencement of school Monday (extended until the commencement of school Tuesday if Monday is a public holiday).
(ii) Each alternate Thursday (in the “off week”) from the conclusion of school Thursday until the commencement of school Friday.
(b) During school term holiday periods:
(i) In 2015 and each alternate year thereafter, from the conclusion of school on the last day of term until 12.00pm on the middle Saturday; and
(ii) In 2016 and each alternate year thereafter, from 12.00pm on the middle Saturday until 12.00pm on the last Sunday of the school term holiday period.
(c) For one half of the long summer holiday period at dates and times as agreed, and failing agreement:
(i) In 2015/16, on a week about basis with the father to have the first week, and the mother the second;
(ii) In 2016/17, on a week-about basis with the father to have the second week, and the mother the first week.
(iii) From 2017/18 onwards:
1. In 2017/18 and each alternate year thereafter, for the first half of such long summer holiday period.
2. In 2018/19 and each alternate year thereafter, for the second half of such long summer holiday period.
(d) At Christmas:
(i) In 2015 and each alternate year thereafter, from 3.00pm Christmas Eve until 3.00pm Christmas Day; and
(ii) In 2016 and each alternate year thereafter, from 3.00pm Christmas Day until 3,00pm Boxing Day.
(e) On New Years Eve/Day:
(i) In 2015/16 and each alternate year thereafter, from 3.00pm on New Years Day until 3.00pm on 2 January; and
(ii) In 2016/17 and each alternate year thereafter, from 3.00pm on New Years Eve until 3.00pm New Years Day.
(f) On Father’s Day weekend, from 5.00pm on the Saturday until the commencement of school on the Monday after Father’s Day.
(g) On the children and father’s birthdays:
(i) If a school day, for a period of two hours; and
(ii) If a non-school day, for a period of four hours
(h) By telephone each Tuesday and Wednesday, between 7.00pm and 7.30pm.
(i) Such further or other time as may be agreed between the parties in writing.
4.
That if the children are otherwise in the care of the father pursuant to these orders, his time be suspended, and the children be in the care of the mother at the following times:
(a) At Christmas:
(i) In 2016 and each alternate year thereafter, from 3.00pm Christmas Eve until 3.00pm Christmas Day; and
(ii) In 2015 and each alternate year thereafter, from 3.00pm Christmas Day until 3,00pm Boxing Day.
(b) On New Years Eve/Day:
(i) In 2016/17 and each alternate year thereafter, from 3.00pm on New Years Day until 3.00pm on 2 January; and
(ii) In 2015/16 and each alternate year thereafter, from 3.00pm on New Years Eve until 3.00pm New Years Day.
(c) On Mother’s Day weekend, from 5.00pm on the Saturday until the commencement of school on the Monday after Mother’s Day.
(d) On the children and mother’s birthdays:
(i) If a school day, for a period of two hours; and
(ii) If a non-school day, for a period of four hours
5.
That the children be permitted to communicate with the mother by telephone:
(a) During the alternate weekends when they are in the care of their father, on Sunday between 6.00pm and 6.30pm; and
(b) During school holiday periods when in the care of the father, on Sunday and Wednesday between 6.00pm and 6.30pm.
6.
That in order to give effect to paragraphs 3 and 4 hereof:
(a) Changeover occur at the children’s school for all changeovers that coincide with the commencement or conclusion of the school day; and
(b) Unless otherwise agreed in writing, all other changeovers occur at the (omitted) library.
7.
The parties forthwith do all such acts and things and sign all such documents (and in default of the father signing the mother be authorised to do so) as may be required to:
(a) Enrol X at (omitted) College in Grade 2, as and from the commencement of term 3 in 2015; and
(b) Enrol Y at (omitted) College to commence prep as and from 2017.
8.
The father be at liberty to obtain directly from the children’s school/kinder any school notices, information, newsletters, reports, photos at his cost and be at liberty to attend at and participate in school related activities to which parents are usually entitled to attend.
9.
That the children attend upon a single treating general practitioner, to be nominated by the mother, and in default of nomination to attend at (omitted) Medical Clinic, (omitted) (and, if available, Dr K, save for in the case of emergency) with the father at his expense able to get information about the children from the treating doctor.
10.
The parties, their servants and/or agents be and are hereby restrained from -
(a) verbally abusing, harassing, belittling or denigrating the other parent or their family in the presence or hearing of the children or either of them;
(b) discussing these proceedings within the presence or hearing of the children or knowingly allowing the children or either of them access to documents filed in this matter.
11.
That all extant applications be otherwise dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.