FEDERAL CIRCUIT COURT OF AUSTRALIA
| DANES & KENNEDY | [2014] FCCA 495 |
| Catchwords: FAMILY LAW – Children – relocation – where time with other parent will not decrease as a result of relocation. |
| Legislation: Family Law Act 1975, ss.60I, 69, 60CC, 65DAA, 60B, 60CA, 61DA, 65D, Evidence Act 1995, ss.79, 69 |
| Roach & Ors v Page & Ors (15) [2003] NSWSC 939 Roach & Ors v Page & Ors (27) [2003] NSWSC 1046 Beaumond & Hardiman [2013] FCCA 1173 Johnson & Page (2007) FLC 93-344 Browne v. Dunn (1893) 6 R. 67, H.L. U & U (2002) 211 CLR 238 Goode & Goode (2006) FLC 93-286 Marvel [2010] FamCAFC 101 Sayer & Radcliffe and Anor [2012] FamCAFC 209 Mazorski & Albirght [2007] FamCA 520 AIF & AMS [1999] HCA 26 Harrison & Woollard (1995) FLC 92-598 R & R: Children’s Wishes [2002] FamCA 43 Makita & Sprowles (2001) 52 NSWLR 705 MRR & GR [2010] HCA 4 |
| Applicant: | MS DANES |
| Respondent: | MR KENNEDY |
| File Number: | WOC 416 of 2007 |
| Judgment of: | Judge Harman |
| Hearing date: | 17 February 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 19 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smithies |
| Solicitors for the Applicant: | Legal Aid Office ACT |
| Counsel for the Respondent: | Self represented |
ORDERS
All prior parenting orders with respect to the child [Z] born [in] 2005 shall be and are hereby discharged.
[Z]’s parents Ms Danes and Mr Kennedy shall have equal shared parental responsibility for [Z].
[Z] shall live with his mother Ms Danes.
[Z] shall spend time with his father:
(a)Each alternate weekend during school terms (to occur as agreed between the parents or failing agreement to commence on the first weekend of each NSW school term) from 4.30pm-5.00pm Friday (or such later time as the parents shall agree) until 4.30pm-5.00pm Sunday;
(b)For the first half of each short NSW school holiday (being those following the conclusion of Terms 1, 2 and 3) and from 12.00noon on the first Saturday of each such holiday period until 12.00noon on the middle Sunday of the holiday period;
(c)For a period of three weeks in each Christmas school holiday period commencing 12.00noon Boxing Day and concluding 12.00noon 15 January following (or such other period as may be agreed between the parents from time to time);
(d)Each Father’s Day weekend from 4.30pm-5.00pm Friday until 4.30pm-5.00pm Sunday (and provided that if Mother’s Day should fall on any weekend when [Z] would, pursuant to these orders, be scheduled to spend time with his father the time shall, for the Mother’s Day weekend be suspended);
(e)Such further and/or other periods as agreed between the parents from time to time;
That for the purpose of [Z] passing into the care of the father that the parties shall meet (absent agreement to the contrary) at the [W] shops at the commencement of each period of time.
For the purpose of [Z] returning to…
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- AGLC
- Danes and Kennedy [2014] FCCA 495
- Case
- [2014] FCCA 495
- Decision Date
CaseChat Overview and Summary
The court was tasked with establishing a new parenting regime for [Z], discharging all prior orders. This involved determining the extent of equal shared parental responsibility, where [Z] would live, and the specific periods [Z] would spend with his father. Additionally, the court needed to address communication protocols between the parents regarding [Z], including telephone contact and notification of significant events. The orders also encompassed provisions for changing [Z]'s place of residence and school, and ensuring both parents were recognised on [Z]'s birth certificate and school records.
Judge Harman ordered the discharge of all prior parenting orders concerning [Z]. The parents were granted equal shared parental responsibility. [Z] was ordered to live with his mother, Ms Danes, and specific provisions were made for [Z] to spend time with his father, Mr Kennedy, including alternate weekends, portions of school holidays, and Father's Day. The orders also detailed communication arrangements, including telephone contact and the exchange of information regarding [Z]'s well-being and schooling. Ms Danes was authorised to change [Z]'s place of residence and school under certain conditions. Furthermore, the court mandated that both parents be registered on [Z]'s birth certificate and school records, and that they keep each other informed of any significant illness or hospitalisation. All outstanding applications were dismissed.
Orders
Orders of the court
1.
All prior parenting orders with respect to the child [Z] born [in] 2005 shall be and are hereby discharged.
2.
[Z]’s parents Ms Danes and Mr Kennedy shall have equal shared parental responsibility for [Z].
3.
[Z] shall live with his mother Ms Danes.
4.
[Z] shall spend time with his father:
(a) Each alternate weekend during school terms (to occur as agreed between the parents or failing agreement to commence on the first weekend of each NSW school term) from 4.30pm-5.00pm Friday (or such later time as the parents shall agree) until 4.30pm-5.00pm Sunday;
(b) For the first half of each short NSW school holiday (being those following the conclusion of Terms 1, 2 and 3) and from 12.00noon on the first Saturday of each such holiday period until 12.00noon on the middle Sunday of the holiday period;
(c) For a period of three weeks in each Christmas school holiday period commencing 12.00noon Boxing Day and concluding 12.00noon 15 January following (or such other period as may be agreed between the parents from time to time);
(d) Each Father’s Day weekend from 4.30pm-5.00pm Friday until 4.30pm-5.00pm Sunday (and provided that if Mother’s Day should fall on any weekend when [Z] would, pursuant to these orders, be scheduled to spend time with his father the time shall, for the Mother’s Day weekend be suspended);
(e) Such further and/or other periods as agreed between the parents from time to time;
5.
That for the purpose of [Z] passing into the care of the father that the parties shall meet (absent agreement to the contrary) at the [W] shops at the commencement of each period of time.
6.
For the purpose of [Z] returning to the care of his mother at the conclusion of any period that [Z] has spent with his father the parties shall meet (absent any agreement to the contrary) at McDonald’s [T] at the conclusion of each period.
7.
Each parent shall be entitled to telephone and speak with [Z] each Wednesday and Sunday that he is not or has not been in their care and with respect to same:
(a) The parent seeking to speak with [Z] shall instigate the telephone call between 5.30pm and 6.30pm;
(b) Each parent shall keep the other advised at all times of a contact telephone number upon which [Z] can be contacted (and upon which each parent can advise the other by text of any difficulties, issues or anticipated times of arrival regarding changeovers);
(c) Each parent shall ensure that the telephone number advised to the other parent for telephone communication is switched on, charged and in a mobile service area at the times when calls are anticipated;
(d) [Z] shall be allowed by each parent to speak with the other with privacy and without interruption or distraction.
8.
Ms Danes shall be and is hereby (and without the consent of Mr Kennedy) authorised, allowed and permitted to:
(a) Change [Z]’s place of residence to an address no further north than [R], NSW and to do so no earlier than the conclusion of Term 1 2014; and,
(b) Upon such change of residence to then change the school attended by [Z] and so as to enrol [Z] at a school of her choosing proximate to her place of residence and subject to the following orders.
9.
Each parent shall forthwith and to the extent that they have not already done so do all things necessary, sign all documents and give all consents, authorities and instructions as are required to forthwith cause the details of Mr Kennedy to be included and incorporated within any registration of the birth of [Z] and included upon any birth certificate then issued as [Z]’s father.
10.
Each of the parties shall forthwith do all things, sign all documents and give all consents, authorities and instructions necessary to cause the details of each parent to be included within any present or future school enrolment application or school record for [Z] as both a parent and emergency contact person and to otherwise allow, authorise and permit each parent to obtain from [Z]’s school all information and reports (whether oral or written) as that parent may desire and to request same directly from the school.
11.
Each parent shall forthwith and contemporaneous with the event advise the other parent of any significant illness, ailment, specialist appointment or hospitalisation relating to [Z] and including the provision of sufficient authority and instruction to ensure that each parent can be fully involved and consulted with respect to any treatment or diagnosis relating to [Z] and to visit him if hospitalised.
12.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
13.
That all outstanding applications and responses shall be dismissed and all issues removed from the list of cases awaiting hearing.
14.
That all material produced on subpoena shall, at the expiration of the appeal period and absent any notice of appeal being filed, be returned to the person producing same or if it has been so requested, securely destroyed.
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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