FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DEES & DEES | [2010] FMCAfam 682 |
| FAMILY LAW – Children – expert report in general terms on Asperger’s Disorder compared with family consultant’s very recent observations of child – interim proceedings – shared care arrangement & “best interests” of children – sole occupation of former matrimonial home (general principles) – spousal maintenance (general principles) – notice to & joinder of third parties in property proceedings – necessary parties – principles of advocacy. |
| Family Law Act1975, ss.60B, 60CA, 60CC(2), 60CC(3), 9a), (b), (c), (d), (e), (f), (g), (i), (l), 60CC(4), 60CC(4A), 65DAA, 72, 74, 75(2) Federal Magistrates Court Rules 2001, Part 11 |
| In the Marriage of Bevan (1994) 19 Fam LR 35 Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition: Text Revision) (Arlington, VA: American Psychiatric Association, 2000 [reprint 2007]) |
| Applicant: | MR DEES |
| Respondent: | MS DEES |
| File Number: | CAC 322 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | 19 April 2010 |
| Date of Last Submission: | 15 June 2010 |
| Delivered at: | Canberra |
| Delivered on: | 8 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Gould |
| Solicitors for the Applicant: | Farrell Lusher Solicitors, Wagga Wagga |
| Solicitor-Advocate for Respondent | Ms. Keogh |
| Solicitors for the Respondent: | KJB Law, Canberra |
ORDERS
The Parents have equal shared parental responsibility for the children [X] born [in] 1999 and [Y] born [in] 2001.
Subject to agreement in writing between the parties, the children continue to live in a shared care/equal time week-about arrangement with their parents in accordance with the Orders of this Court made on 4th March 2010.
Notwithstanding Order 2, and subject to agreement in writing between the parties, the Mother spend time and communicate with the Children as follows:-
(a) From 12:00noon Christmas Eve until 2:00pm Christmas day in 2010 and each alternate year thereafter;
(b) From 2:00pm Christmas Day until 5:00pm Boxing Day 2011 and each alternate year thereafter;
(c)…
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- AGLC
- Dees and Dees [2010] FMCAfam 682
- Case
- [2010] FMCAfam 682
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were the allocation of parental responsibilities, the determination of a suitable care arrangement for the children, and the division of the matrimonial home and associated assets. The parents were unable to reach a consensus on these matters, necessitating judicial intervention to ensure the children's best interests were prioritized.
In its decision, the court first addressed the issue of parental responsibilities, determining that both parents would have equal shared parental responsibility for the children. This decision was made in the belief that both parents could contribute equally to the children's welfare and development. The court then outlined a detailed care arrangement, which included a week-about shared care arrangement with specific provisions for holidays and special occasions, ensuring that both parents had significant time with their children. The court also mandated specific visitation rights during Christmas and Boxing Day, as well as on the children's birthdays and parents' birthdays, to foster meaningful family connections. Furthermore, the court ordered that neither parent denigrate the other in the children's presence and required both parents to share information regarding the children's health and education. Additionally, the court ordered the appointment of an Independent Children’s Lawyer to represent the children's interests.
The court concluded by making orders concerning the division of the matrimonial home, financial support, and the transfer of personal property. The wife was granted exclusive use of the family home, while the husband was required to vacate and given specific access rights. The husband was also ordered to provide the wife with $30,000 to purchase a vehicle, and both parents were instructed to return each other's personal belongings within specified timeframes.
Orders
Orders of the court
1.
The Parents have equal shared parental responsibility for the children [X] born [in] 1999 and [Y] born [in] 2001.
2.
Subject to agreement in writing between the parties, the children continue to live in a shared care/equal time week-about arrangement with their parents in accordance with the Orders of this Court made on 4th March 2010.
3.
Notwithstanding Order 2, and subject to agreement in writing between the parties, the Mother spend time and communicate with the Children as follows:-
(a) From 12:00noon Christmas Eve until 2:00pm Christmas day in 2010 and each alternate year thereafter;
(b) From 2:00pm Christmas Day until 5:00pm Boxing Day 2011 and each alternate year thereafter;
(c) For not less than four hours on each of the children’s Birthdays should they not otherwise be in her care and likewise the Father is to have the Children for not less than four hours if they are otherwise in the Mother’s care.
4.
Notwithstanding Orders 2 and 3:-
(a) The children spend time with the mother:-
(i) Each Mother’s Day from 9am until 5pm;
(ii) On the Mother’s birthday each year:-
A. if the Mother’s birthday falls on a weekday, for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from 4pm until 7pm;
B. if the Mother’s birthday falls on a weekend from 9am until 5pm on the birthday.
(b) The children spend time with the Father:-
(i) Each Father’s Day from 9am until 5pm;
(ii) On the Father’s birthday each year:-
A. if the Father’s birthday falls on a weekday, for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from 4pm until 7pm;
B. if the Father’s birthday falls on a weekend from 9am until 5pm on the birthday.
5.
For not less than four hours with their Mother on each of the children’s Birthdays should they not otherwise be in her care and likewise the Father is to have the Children for not less than four hours if they are otherwise in the Mother’s care.
6.
Neither party shall denigrate the other nor their family in the presence of the children; and the parents will use their best endeavours to ensure that no other person does so either.
7.
Each parent shall authorise any treating medical practitioner, psychologist, dental practitioner, hospital or medical practice that the child/children shall attend from time to time to provide to the other parent any information regarding the child.
8.
If the child (or children) falls ill, one of the parents shall notify the other parent. Each parent shall have the doctor’s, psychologist’s or alternative therapist’s contact details, any medication prescribed and any treatment recommended. Each parent shall administer such medication when it falls due, adhere to any medical treatment plan and follow any directions from the doctor for the child. Each parent is then restrained from seeking alternate medical treatment unless the child’s condition appears to deteriorate.
9.
In the event that the children suffer any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent then the parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the child/children have been taken.
10.
Each parent shall authorise any educational institution that the children attend to advise the other parent of any information they require, copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights and inform the other parent of any emergency, remedial or correctional treatment required by the child/children as soon as is practicable.
11.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children.
12.
The Legal Aid Office, New South Wales, is requested to make arrangements as soon as practicable for appropriate representation for the children.
13.
Forthwith upon the appointment of the Independent Children’s Lawyer, that lawyer file with this Court a Notice of Address for service.
14.
Each party is to make available to Legal Aid NSW within 7 days copies of all applications and affidavits filed in these proceedings together with all existing orders and copies of relevant reports (if applicable, including the Children and Parents Issues Assessment).
15.
Within 7 days of the date of these Orders, the husband vacate the property situate at Property W in the state of New South Wales [“the [W] property”] and thereafter, unless otherwise authorised in writing to do so, stay away from the [W] property.
16.
Until further Order the wife have the exclusive use, enjoyment and occupation of the [W] property. For the duration of this occupancy, the Wife is to be responsible for any and all rates and outgoings in relation to the [W] property.
17.
With reasonable notice in writing, Mr Dees be granted access to the former matrimonial home for the purpose of collecting any of his personal items.
18.
Ms Dees be restrained from removing or disposing of any items currently kept at the former matrimonial home without the prior written consent of Mr Dees, or order of the Court.
19.
Ms Dees return to Mr Dees any personal affects belonging to Mr Dees within 28 days of her resuming occupation of the former matrimonial home. If he has not already done so, within 14 days of the date of these orders, Mr Dees is to provide Ms Dees with a list of items to be returned pursuant to this Order.
20.
Within 7 days the Applicant Husband provide to the Respondent Wife the sum of $30,000.00 (thirty thousand dollars) and the wife be at liberty to use those funds to purchase a motor vehicle.
21.
Contemporaneously with the payment in order 20, the Respondent Wife make available to the Applicant Husband the Mercedes Benz motor vehicle registration number [D].
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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