Ferry and Ferry - [2016] FCCA 3511

FEDERAL CIRCUIT COURT OF AUSTRALIA

FERRY & FERRY

[2016] FCCA 3511

Catchwords:
FAMILY LAW – Final parenting – spend time with arrangements – child’s best interests – where the communication between the parents is poor.

Legislation:

Family Law Act 1975, ss.4, 4AB, 10B, 13C, 60B, 60CA, 60CC, 60CC(2A), 60I, 60J, 61DA, 65DAA, 65DAA(5), 65F, 69ZN, 70NAE, 117

Cases cited:

Queensland v J L Holdings Pty Ltd [1997] HCA 1
Tate & Tate(No.3) (2003) FLC 93-138
Johns & Jasapas [2016] FamCA 471

Goode & Goode (2006) FLC 93-286

Burton & Churchin & Anor [2013] FamCAFC 180

Dylan & Dylan [2007] FamCA 842

VR & RR [2002] FamCA 320
Bennett & Bennett (1991) FLC 92-191

Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812

Continue reading Ferry and Ferry

Details

AGLC: Ferry and Ferry [2016] FCCA 3511
Case: [2016] FCCA 3511
Decision Date: 4 October 2016

CaseChat Overview and Summary

In *Ferry and Ferry*, heard by Judge Harman, the court considered parenting orders concerning the child, X. The dispute involved the arrangements for X's residence, time with each parent, and communication between the parents and X. The court's primary focus was to establish a parenting regime that best served X's interests following the separation of her parents, Ms Ferry and Mr Ferry.

The legal issues before the court included determining the appropriate parenting orders for X, specifically addressing issues of equal shared parental responsibility, where X would live, and the specific times X would spend with each parent. The court also had to consider provisions for communication between X and her parents, as well as between the parents themselves, and the need for counselling to support X and her parents in navigating the post-separation arrangements. Further issues involved the parents' conduct towards each other and X, and the practical arrangements for X's schooling and medical information.

The court's reasoning led to the discharge of all previous parenting orders and the establishment of new arrangements. It was determined that X would have equal shared parental responsibility with her parents, but would live with her father. Detailed provisions were made for X's time with her mother, including during school terms, holidays, and specific public holidays, with clear guidelines for changeovers. The court also mandated counselling for X and her parents to address conflict and improve communication, and imposed prohibitions on denigration and discussion of proceedings in X's presence. Provisions were also made for X's communication with her parents and siblings, and for the notification of significant health events. The court also authorised both parents to obtain information about X's schooling and to attend school functions.

The court ordered that all previous parenting orders be discharged and established new orders for equal shared parental responsibility, with X living with the father and spending significant time with the mother according to a detailed schedule. The court also ordered counselling for X and the parents, restrained the parents from denigrating each other or discussing proceedings with X, and made specific provisions regarding X's communication, schooling, and health information. The Independent Children's Lawyer was discharged with thanks, and all outstanding applications were dismissed.

Orders

Orders of the court

All previous parenting Orders in relation to the child, X born (omitted) 2005, shall be and are hereby discharged.

The mother, Ms Ferry, and the father, Mr Ferry, shall have equal shared parental responsibility for X.

X shall live with the father.

X shall spend time with the mother as follows:

4.1 During school terms, in each alternate week, from after school on Friday until before school on Wednesday;

4.2 Half of each NSW school holiday period, being the first half in even numbered years and the second half in odd numbered years and for the purpose of this Order:

4.2.1 The first half of each school holiday period shall commence with the conclusion of school on the last day of school attendance;

4.2.2 The second half of each school holiday period shall conclude with the commencement of school on the first day of school attendance in the new school term;

4.2.3 The mid-point shall be 6pm on the middle Saturday of each short school holiday period and 6pm 9 January in the Christmas school holiday period;

4.3 At Christmas as follows:

4.3.1 In odd numbered years commencing 2015 from 12 noon on Christmas Day until 4pm on Boxing Day;

4.3.2 In even numbered years commencing 2014 from 4:00pm on Christmas Eve until 12 noon on Christmas Day.

4.4 At Easter as follows:

4.4.1 In odd numbered years commencing 2015 from 4pm on Easter Saturday until 12 noon on Easter Sunday;

4.4.2 In even numbered years commencing 2016 from 12 noon on Easter Sunday until 4pm on Easter Monday;

4.5 At such other times as agreed between the parents.

For the purposes of Order 4.1, X’s time with her mother shall commence on the first Friday of each school term in even numbered years and on the second Friday of each school term in odd numbered years.

For the purposes of Orders 4 and 5, all changeovers on school days shall occur at X’s school, and otherwise the father shall deliver X to the mother’s home at the commencement of each period and/or collect X from the mother’s home at the conclusion of each period.

Notwithstanding any other Order:

7.1 X shall spend time with her mother on Mother’s Day from 6pm Saturday until the commencement of school Monday and in the event that X is in her father’s care on the weekend that includes Mother’s Day, then X’s time with her father shall be suspended; and

7.2 X shall spend time with her father on Father’s Day from 6pm until the commencement of school Monday and in the event that X is in her mother’s care on the weekend that includes Father’s Day, then X’s time with her mother shall be suspended.

Within 7 days of the date of these Orders, each parent shall contact Interrelate at (omitted) and arrange for:

8.1 Counselling for X to support her in managing the conflict between her parents and adjusting to the parenting arrangements set out in these Orders; and

8.2 Post-separation counselling for the parents to assist them:

8.2.1 To improve their communication and cooperation as parents;

8.2.3 To develop appropriate strategies to manage X’s behaviour; and

8.3.3 To actively support and promote X’s relationship with the other parent.

For the purposes of the above Order:

9.1 Each parent shall do all acts and things necessary, including completing all intake procedures and assessments required by Interrelate;

9.2 Each parent shall attend counselling sessions at such frequency as requested by Interrelate and until such time as Interrelate recommends the sessions cease;

9.3 Each parent shall ensure that X attends counselling sessions at such frequency as requested by Interrelate and until such time as Interrelate recommends the sessions cease;

9.4 The father shall use his best endeavours to ensure that X’s older siblings (or any of them) attend counselling sessions if requested by Interrelate to do so;

9.5 Each parent has leave to provide a sealed copy of these Orders, Judge Harman’s Reasons for Decision and the Family Report dated 21 August 2015 to Interrelate;

9.6 Each parent shall follow all reasonable recommendations made by their counsellor or X’s counsellor at Interrelate, including attending such other programs or services recommended by that counsellor, or ensuring that X attends such other programs or services.

10.

Each parent shall be and is hereby restrained from:

10.1 Denigrating or allowing any other person to denigrate the other party or any of their family members within the presence or hearing of the child;

10.2 Discussing these proceedings or any of the issues raised in these proceedings with or in the presence or hearing of X;

10.3 Showing any documents in relation to these proceedings to X;

10.4 Using physical discipline on X;

AND each shall use their best endeavours to ensure that no third party does so.

11.

Each parent shall keep the other informed of their current residential address and notify the other parent within 7 days prior to any change.

12.

Mr Ferry shall forthwith provide to Ms Ferry the telephone number for a mobile service to be used by X henceforth and, further, Mr Ferry shall:

12.1 Provide to X the handset to which that telephone number is attached and shall leave the phone in X’s possession;

12.2 Do all things within his power to ensure that the mobile telephone is regularly charged, in credit, switched on and able to receive telephone calls, SMS messages and IMessages;

12.3 Allow X to retain the handset and telephone number and to use the handset without interruption or distraction and with privacy;

12.4 Ensure, prior to providing the handset to X, that his and the mother’s details and those of X’s elder siblings are recorded on the phone and sim card as a contact.

13.

Each parent shall permit X to communicate with the other parent and her siblings by email, SMS or IMessage at all reasonable times (not including meal times).

14.

Each parent shall be entitled to telephone and speak with X using the above phone service between 7-7:30pm on any day that X is not and has not been in their care.

15.

Each parent keep the other informed of their contact telephone number(s) and email address (if available) and notify the other parent within 24 hours of any change.

16.

In the event that X suffers a significant illness or injury or is hospitalised whilst in one parent’s care, that parent shall notify the other parent as soon as practicable and provide the other parent with details of the nature of the illness or injury, the name of the hospital or medical practitioner providing treatment to X and details of any treatment or medication prescribed.

17.

Both the mother and father shall be at liberty to obtain from any school attended by X information relating to X’s schooling, including copies of school reports and general school newsletters.

18.

Both the mother and father shall be at liberty to attend functions and events at X’s school and to request and attend separate parent-teacher interviews at the school.

19.

The mother shall be and hereby is authorised to request X’s school to amend their records so that the mother is recorded as an emergency contact person for X and a person who is authorised to collect X from school.

20.

Leave is granted to the Independent Children’s Lawyer to make an Application for contribution of costs by each of the parties in accordance with Exhibit ICL2.

21.

Dismiss the Application for costs.

22.

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.

23.

All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

24.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.

25.

Discharge the Independent Children’s Lawyer with the Court’s thanks.

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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