FEDERAL CIRCUIT COURT OF AUSTRALIA
| FOXLEY & FOXLEY | [2018] FCCA 1165 |
| Catchwords: FAMILY LAW – Parenting – 3 young children – father lives in Town 4 – mother lives in Town 5 – relocation – best interests. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA, 69ZT Evidence Act 1995, ss.55, 135, 136, Parts 3.2 and 3.8 |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Sayer & Radcliffe & Anor [2012] FamCAFC 2096 Starr & Duggan [2009] FamCAFC 115 |
| Applicant: | MR FOXLEY |
| Respondent: | MS FOXLEY |
| File Number: | DUC 125 of 2017 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 4, 5 and 6 September 2017 |
| Date of Last Submission: | 30 October 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 10 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenny |
| Solicitors for the Applicant: | Campbell Paton & Taylor |
| Counsel for the Respondent: | Mr Blithery |
| Solicitors for the Respondent: | Gillard Family Lawyers |
ORDERS
All previous orders are discharged.
The parents shall have equal shared parental responsibility for the children [X] born 2011, [Y] born 2013 and [Z] born 2014.
The children shall live with the mother.
The children shall spend time with the father as agreed between the parents in writing, and failing agreement as follows:
(a)For the first half of each school holiday period in even numbered years;
(b)For the second half of each school holiday period in odd numbered years;
(c)If the father is able to travel to Town 5 or within a 20km radius of where the children and the mother are living for the purpose of spending time with the children, then the children shall spend time with the father at that location each alternate week for no more than 5 days as nominated by the father on 28 days’ notice to the mother. Upon being provided such notice the mother must not unreasonably withhold the children from the father.
All changeovers for the purpose of orders 4 (a) and 4 (b) are to take place in Town 6 with the mother to deliver the children to the father at the playground in Town 6 at the commencement of the time and the father to return the children to the mother at the same location at the conclusion of time.
The parent not spending time with the children shall be at liberty to have telephone/Skype contact with the children each night between 6.30pm and 7pm.
Each party is restrained by injunction from denigrating the other party, or members…
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- Foxley and Foxley [2018] FCCA 1165
- Case
- [2018] FCCA 1165
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate orders for equal shared parental responsibility, the children's primary residence, the time the children would spend with the father, communication arrangements, and provisions concerning the children's education, health, and the parents' conduct towards each other in the children's presence.
The court ordered that the parents have equal shared parental responsibility for the children. The children were to live with the mother, and spend time with the father according to a specific schedule involving school holidays and alternate weeks, with provisions for travel and notice. The court also made orders regarding changeover locations, nightly communication, injunctions against denigration, access to school and medical information, notification of emergencies, and changes of address.
Orders
Orders of the court
1.
All previous orders are discharged.
2.
The parents shall have equal shared parental responsibility for the children [X] born 2011, [Y] born 2013 and [Z] born 2014.
3.
The children shall live with the mother.
4.
The children shall spend time with the father as agreed between the parents in writing, and failing agreement as follows:
(a)For the first half of each school holiday period in even numbered years;
(b) For the second half of each school holiday period in odd numbered years;
(c) If the father is able to travel to Town 5 or within a 20km radius of where the children and the mother are living for the purpose of spending time with the children, then the children shall spend time with the father at that location each alternate week for no more than 5 days as nominated by the father on 28 days’ notice to the mother. Upon being provided such notice the mother must not unreasonably withhold the children from the father.
5.
All changeovers for the purpose of orders 4 (a) and 4 (b) are to take place in Town 6 with the mother to deliver the children to the father at the playground in Town 6 at the commencement of the time and the father to return the children to the mother at the same location at the conclusion of time.
6.
The parent not spending time with the children shall be at liberty to have telephone/Skype contact with the children each night between 6.30pm and 7pm.
7.
Each party is restrained by injunction from denigrating the other party, or members of the other party’s family to or in the presence of the children and shall immediately remove the children from the presence of any other person doing so.
8.
Each party may obtain from the children’s school or day care centre, copies of school reports, newsletters, order forms for school photographs and other information normally provided to parents and may attend events at the children’s school or day care normally attended by parents.
9.
Each party is to behave respectfully to the other at school functions and not attempt to discuss personal issues including issues relating to the children with the other parent at school functions.
10.
Each party is to provide authorisation to any medical practitioners of the children to allow all parties to have direct access to the child’s health and medical records.
11.
Each party shall advise the other as soon as reasonably practicable in the event that any of the children while in their care are involved in an accident or medical emergency requiring treatment at hospital or are diagnosed with a serious illness.
12.
Each part shall advise the other of a change of address or contact telephone number within 24 hours of a change occurring.
13.
Remove all outstanding issues from the list of cases awaiting finalisation.
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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