D and D
[2004] FMCAfam 148
•18 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & D | [2004] FMCAfam 148 |
| FAMILY LAW – Children – injunction – court should not make unnecessary orders – meaning of joint long-term parental responsibility order discussed. |
Vlug & Poulos (1997) FLC 92-778
B & B Family Law Reform Act 1975 (1997) FLC 92-755
| Applicant: | L D |
| Respondent: | K M D |
| File No: | PAM 1880 of 2003 |
| Delivered on: | 18 February 2004 |
| Delivered at: | Wollongong |
| Hearing date: | 18 February 2004 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Stubbs |
| Solicitors for the Applicant: | DGB Lawyers |
| Counsel for the Respondent: | Mr N McPherson |
| Solicitors for the Respondent: | Legal Aid Commission of New South Wales |
ORDERS
THE COURT ORDERS BY CONSENT:
That the child, I D, born 1999 live with the mother.
That the mother be granted sole parental responsibility for making decisions about the day-to-day care, welfare and development of the child, during the times the child is living with the mother.
That the child’s contact with the father be facilitated as follows:
(a)Three weekends out of every five weekends commencing 5.00 pm Friday and concluding at 6.00 pm on Sunday, in accordance with the following cycle:
(i)WEEK 1: Each 5th weekend with the father commencing
20 February 2004;(ii)WEEK 2: Each 5th weekend with the father commencing
27 February 2004;(iii)WEEK 3: Each 5th weekend with the mother commencing
5 March 2004;(iv)WEEK 4: Each 5th weekend with the father commencing
12 March 2004(v)WEEK 5: Each 5th weekend with the mother commencing 19 March 2004.
(b)For one half of:
(i)The child’s birthday;
(ii)The father’s birthday;
(iii)Each of the paternal grandparents’ birthdays provided these do not fall on a school day or when the child has a school commitment;
(iv)Father’s Day;
(v)For half of all school holidays in each of the term 1, term 2, and term 3 school holidays;
(vi)Each alternate Christmas commencing from 6.00 pm on Christmas Eve, 24 December 2004, and concluding at 6.00 pm on 31st December, and every alternate Christmas thereafter.
(vii)For half of the remaining Christmas school holidays commencing on 31 December 2004 as set out above in a block, by arrangement between the parties;
(viii)Other significant family events by arrangement.
That during periods of contact the father shall have sole parental responsibility for making decisions about the day-to-day care, welfare and development of the child.
That the mother and father shall have joint responsibility for making decisions about the long-term care, welfare and development of the child.
To facilitate contact:
(a)the mother shall be responsible for delivering the child on Fridays at 5.00 pm; and
(b)the father shall be responsible for returning the child at the conclusion of contact at 6.00 pm on Sunday to the mother’s residence.
In the event contact falls on a weekend that includes a public holiday commencing on a Friday, then contact commence on Thursday at 5.00 pm. If the public holiday falls on a Monday then contact concludes on Monday at 6.00 pm.
That each parent keep the other parent informed and fully appraised of relevant schooling issues and the medical condition of the child, including but not restricted to the making of medical appointments and dates thereof for the child, prescribed medication for the child, and of any other relevant matter reasonably affecting the child’s well-being.
That the mother do all things necessary to ensure that her communication with the father occurs without unreasonable interference by her partner, P O, or any other person.
Neither parent make any attempt to change the child’s schooling or make decision in relation to significant medical treatment (excepting any emergency treatment the child may require) without at least 14 days notice to the other party.
That the mother provide authority to the child’s school and to all persons providing medical services to the child to release all relevant information to the father.
That the father have telephone contact with the child at times that are reasonable with respect to the child’s lifestyle and daily routine, and during such times the mother use her best endeavours to ensure that no other person interfere with the child’s telephone contact with the father.
That the mother shall maintain a current home landline telephone service and the mother shall provide the father with the mother’s home telephone number.
That the father only utilise other than in an emergency the mother’s home phone number for the purpose of telephone contact pursuant to Order 12 above and for the purpose only of communication regarding Imogen.
The mother shall ensure the child has access to the home telephone number between the hours of 5.00 pm and 6.00 pm for the purpose of telephone contact with the father.
That telephone contact between the father and mother occur in a polite and an appropriate manner at all times and that the parties agree that neither will speak in a disparaging manner either to each other or regarding each other in the presence of the child.
Contact pursuant to Order 3(a) does not take place during the holidays periods and for the purposes of ascertaining dates of resumption of such contact following the conclusion of the holiday periods, contact weekends shall notionally be counted through school holiday periods.
That the mother will do all things necessary within 28 days to ensure that a properly approved car seat is installed in any vehicle in which the child is transported and will ensure that there is installed an appropriate restraint in respect to the rear section of any station wagon vehicle in which the child is transported. The approved car seat will comply with current Australian Standards. The restraint in relation to the rear section of the station wagon will comply with current Australian Standards.
THE COURT FURTHER ORDERS:
In the event that the mother wishes to relocate to an area that is further than the distance that Kiama is from Wollongong CBD then she is to provide the father with sixty (60) days advance notice in writing of her intention.
The pursuant to section 65DA(2) 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 these particulars are included in these orders.
All documents produced under subpoena are to be collected by the person who issued the subpoena and returned to their owner within seven (7) days.
All outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
SYM1880 of 2003
| L D |
Applicant
And
| K M D |
Respondent
REASONS FOR JUDGMENT
These reasons for delivered orally.
This is an application by L D (“the father”) for injunctive relief, the effect of which would be to restrain K M D (“the mother”) from changing their daughter I D’s place of residence further away from Wollongong than Kiama without his consent.
The mother agrees that she will notify the father in the event that she plans to do so. The minute of order proposed by her counsel suggests 30 days advance notice but the mother agrees 90 days advance notice is an acceptable time frame.
This matter was listed for a two-day defended hearing in relation to residence, contact and series of specific issues orders. The parties have been able to appropriately compromise what might have been considered the more substantial issues concerning their daughter. Given the limited points of difference between the two proposals it is a little surprising that they have been unable to resolve this last issue.
Order 5 of the terms of settlement provides that from today the parties will have joint responsibility for making decisions about their daughter’s long-term care, welfare and development. This imposes a positive obligation upon both parties to consult with each other and agree in relation to long-term issues (see Vlug & Poulos 91997) FLC 92-778). For example, one party might prefer that the child would be reared in a particular faith. Unless the other party agrees, that is a decision that they cannot implement. In those circumstances a court must make the decision. A decision to relocate the child’s home in a substantial way must be made by the parties jointly (see B & B Family Law Reform Act 1975 (1997) FLC 92-755). It will be insufficient for the mother, having conceded the joint parental responsibility order, to move further away and simply say that she will still make Imogen available for contact in accordance with the orders. Not only must the mother be in a position whereby the contact arrangements can be implemented in a way that is comfortable for the child, but also if there is to be a substantial change in residence, this is a decision that the mother and father will make together. I do not mean that if the mother wishes to change house and move closer back to Wollongong she cannot do so. That is a decision within her parental authority. However, should she wish to move further away, I have no doubt that any court considering the effect of order 5 would conclude that this is a long-term issue that the father must be advised of and participate in.
With that background, should the court make the injunction sought by the father? It is not contended by his counsel that he is entitled to this relief as of right, rather it is predicated on a submission that the child needs to live reasonably close to Wollongong because this is where her medical specialists are located. The child has had a series of recurrent urinary tract infections, resulting in a 10-day admission to hospital and requiring corrective surgery. She has a hearing deficit, which requires grommets and the removal of her adenoids. In most major centres one would expect to find specialist medical practitioners qualified to deal with these issues. However, the child and her parents have an established relationship with doctors in Wollongong. Because of this relationship it is contended that the court would err on the side of caution and ensure that the mother clearly understands that she cannot take any steps in terms of where the child lives that might interrupt the child’s relationship with her treating doctors.
This submission overlooks that there are also orders that require the parties to keep each other informed in relation to medical matters and injunctions concerning the manner in which medical treatment is to be provided. The package of orders in terms of parental responsibility, residence, day-to-day responsibility, contact and injunction achieves exactly what it is the father seeks. Additional orders are unnecessary subject only to the notice that the mother concedes should be ordered.
I do not accept that the formulation of orders proposes by the mother shifts the onus of taking pre-emptive action to the father. The mother, by virtue of these orders, has a positive obligation in the absence of the father’s consent to obtain an appropriate order from the court.
I am persuaded that the existing orders are sufficient and the court should not make orders that are unnecessary.
For these reasons I make the orders set out at the start of these Reasons.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: S. Mashman
Date: 17 May 2004
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