FEDERAL CIRCUIT COURT OF AUSTRALIA
| FINCH & HARRIS | [2016] FCCA 1485 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – Variation of parenting orders – best interests of the child considered – application to vary parenting orders – whether orders should be interim orders or final orders – need for finality – parental responsibility – equal shared parental responsibility – sole parental responsibility – “micro-managing” parenting orders – where child resides with mother – whether mother should be restrained from relocating child’s residence from Sydney Metropolitan Area – where father resides in Adelaide – views of the child – whether child should be given the option of deciding with which parent he wishes to reside once he attains the age of 14 years – where mother should be required to provide written opinion from a psychiatrist as to her fitness to parent the child – anger management – whether mother should be required to attend an anger management course – whether mother should be required to attend a parenting course – family violence – whether evidence of family violence should trigger an order that the child should reside with the father rather than the mother – no power to make an order that a party should obtain a report from a psychiatrist other than as a condition of a parenting order. |
| Legislation: Family Law Act 1975(Cth), ss.60B, 60CA, 60CC, 60CD, 61DA, 65DAA |
| Cases cited: Harris & Finch [2012] FMCAfam 77 Finch & Harris [2014] FCCA 2152 Finch & Harris (No.2) [2014] FCCA 2507 Finch & Harris (No.3) [2014] FCCA 2527 L & T (1999) 25 Fam LR 590; FLC 92-875; [1999] FamCA 1699 Nash & Reis [2013]FMCAfam 11 Rice v Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 VR & RR (2002) 29 Fam LR 39; FLC 93-099; [2002] Fam CA 320 |
| Applicant: | MR FINCH |
| Respondent: | MS HARRIS |
| File Number: | SYC 7893 of 2011 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 8 December 2015 |
| Date of Last Submission: | 8 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 14 June 2016 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
ORDERS
All earlier parenting Orders are discharged.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2003 in respect of all matters concerning the long term care, welfare and development of the said child EXCEPT THAT the Father is to have sole parental responsibility to make decisions about any elective surgery or orthodontic treatment for the child after appropriate consultation with the Mother.
In the event that the Father decides that the child should undergo elective surgery or orthodontic treatment through the private health system rather than the public health system then the Father is to be responsible for the cost of such treatment.
The Father and the Mother are to have sole parental responsibility for all matters concerning the day to day care, welfare and development of the child X at all times when the child is in the care of…
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- Finch and Harris [2016] FCCA 1485
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- [2016] FCCA 1485
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CaseChat Overview and Summary
The court was required to determine the appropriate orders for equal shared parental responsibility, the specific allocation of decision-making powers regarding elective surgery and orthodontic treatment, and the arrangements for the child's living arrangements and time spent with each parent. Further issues included provisions for communication between the child and parents, educational arrangements, and restrictions on third-party contact and parental conduct in the child's presence.
Judge Scarlett ordered the discharge of all earlier parenting orders. The parents were granted equal shared parental responsibility for long-term decisions concerning the child, with the exception that the father would have sole responsibility for decisions regarding elective surgery or orthodontic treatment after consultation with the mother. The father was to bear the cost of any private health treatment for such procedures. Day-to-day care was allocated to the parent with whom the child was residing at the time. The child was ordered to live with the mother, with specific provisions for the child to spend time with the father, including weekends, school holidays, and annual periods in January. The orders also detailed travel arrangements for the child between Sydney and Adelaide, communication protocols, and educational requirements, including the child's continued attendance at a specific high school. Injunctions were imposed restraining the mother from permitting certain individuals to spend time with the child without supervision and both parties from denigrating each other in the child's presence. The parties were also required to keep each other informed of their contact details and any significant illness or injury to the child.
Orders
Orders of the court
1.
All earlier parenting Orders are discharged.
2.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2003 in respect of all matters concerning the long term care, welfare and development of the said child EXCEPT THAT the Father is to have sole parental responsibility to make decisions about any elective surgery or orthodontic treatment for the child after appropriate consultation with the Mother.
3.
In the event that the Father decides that the child should undergo elective surgery or orthodontic treatment through the private health system rather than the public health system then the Father is to be responsible for the cost of such treatment.
4.
The Father and the Mother are to have sole parental responsibility for all matters concerning the day to day care, welfare and development of the child X at all times when the child is in the care of that parent in accordance with these Orders.
5.
The child X is to live with the Mother.
6.
The child X is to spend time with the Father as follows:
(a) For the first weekend of each month during the New South Wales school term from 6:00pm on the Friday until 8:00pm on the Sunday PROVIDED THAT if the Monday immediately following the weekend is a public holiday in the State of New South Wales then until 8:00 pm on the Monday;
(b) On the weekend that includes Father’s Day in each year from 6:00pm on the Friday until 8:00pm on the Sunday;
(c) For the mid-year school holidays from 9:00am on the day immediately after the last day of the school term until 5:00pm on the day before children are required to attend school at the commencement of the third school term;
(d) For the second half of the school holidays at the end of the first and third school terms in each year from 9:00am on the middle Saturday of the school holiday period until 5:00pm on the day before children are required to attend school at the commencement of the second and fourth school terms as the case may be; and
(e) From 9:00am. on 2 January in each year until 5:00pm on 23 January in each year.
7.
For the purposes of the immediately preceding Order:
(a) The child is to travel between Sydney and Adelaide by regular scheduled airline service as an unaccompanied minor;
(b) The parties are to pay the child’s return airfares in equal shares;
(c) The Mother will be responsible for transporting the child to and from Sydney Airport and the Father will be responsible for transporting the child to and from Adelaide Airport;
(d) The child is to be booked to travel from Sydney to Adelaide on the first available flight scheduled to leave Sydney immediately after the commencement of the time the child is to spend with the Father;
(e) The child is to booked to travel from Adelaide to Sydney on the flight immediately prior to the conclusion of the time that the child is to spend with the Father;
(f) The Father is to make the child’s flight bookings no fewer than fourteen (14) days prior to the date when the child is to travel; and
(g) In the event that the child misses his flight or the departure time of the child’s flight is delayed by twenty (20) minutes or more then the parent responsible for arranging for the child to board the flight must inform the other parent by text message.
8.
In the event that the Father commences to reside in Sydney then:
(a) the provisions of Order (5)(a) are to be suspended and the child is to spend the first and third weekend of each month with the Father from 6:00pm on the Friday until 8:00pm on the Sunday PROVIDED THAT if the Monday immediately following the weekend is a public holiday then until 8:00pm on the Monday; and
(b) changeover where the child goes from the care of one parent to the care of the other parent is to be at a location to be agreed between the parties outside the ticket barriers of the (omitted) Railway Station.
9.
The Father is to have telephone communication with the child X:
(a) On one occasion each Sunday during the school term;
(b) On the child’s birthday;
(c) On the Father’s birthday; and
(d) On Christmas Day.
10.
The Mother is to have telephone communication with the child X on one occasion each Saturday when the child is in the care of the Father.
11.
The parties are to ensure that the child X continues to attend (omitted) High School until the conclusion of his secondary education and are restrained from removing the child from (omitted) High School and enrolling the child at any other High School without the written consent of the other party first had and obtained or Order of the Court.
12.
The Father is permitted to obtain from (omitted) High School at his own expense copies of all the child’s school reports and all newsletters, bulletins, information about school photographs and other documents or information usually provide to parents of children attending the said school and the parties are permitted to provide a copy of these Orders to the Principal of the said school.
13.
The Father and the Mother are each at liberty to attend all functions at the child’s school at which parents are permitted to attend, including school concerts and assemblies, sports carnivals, prize-giving ceremonies and parent-teacher interviews.
14.
The parties must keep each other informed of their current residential address, email address and contact telephone number and advise each other of any change within forty-eight (48) hours of such change occurring.
15.
The Mother is restrained from permitting either Mr A or Mr B to spend time with the child without a responsible adult being present.
16.
The parties are restrained by injunction from abusing or criticising or denigrating each other or any member of each other’s immediate family in the presence or hearing of the child or permitting any third person to do so.
17.
The parties must inform each other of any illness or injury sustained by the child requiring treatment at a hospital or an appointment with a specialist medical practitioner as soon as reasonably practicable and provide each other with the address and telephone contact details of the said hospital or specialist medical practitioner without any unreasonable delay.
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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