FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GOLDSTEIN & HOPKIRK | [2010] FMCAfam 469 |
| FAMILY LAW – Parenting – history of drug addiction – perpetrating family violence – relocation order – behaviour of party’s partner – relocation opposed by Family Consultant and Independent Children’s Lawyer – parental responsibility – Part VII, Family Law Act 1975 – s.60CC primary and additional considerations – equal shared parental responsibility. |
| Family Law Act 1975, ss.4, 13C, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 62B, 64B, 65DA, 65DAA, 68B, 68C |
| AMS v AIF (1999) 199 CLR 160 Bennett v Bennett [2001] FamCA 462, (2001) 28 Fam LR 231; (2001) FLC 93-088 F v F (2007) 38 Fam LR 52 Flanagan & Hancock[2000] FamCA 150; (2000) 27 Fam LR 615; (2000) FLC 93-074 Illidge & Norton [2008] FMCAfam 1255 In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 In the Marriage of Wood (1976) 2 Fam LR 11,182 Lindell v Ranteri [2010] FamCA 52 Morgan v Miles (2007) 38 Fam LR 275 Newlands v Newlands [2007] FamCA 168; 37 Fam LR 103 Ryder & Roby [2009] FMCAfam 416 U v U (2002) 211 CLR 238 |
| Applicant: | MS GOLDSTEIN |
| Respondent: | MR HOPKIRK |
| File Number: | SYC 5722 of 2007 |
| Judgment of: | Monahan FM |
| Hearing date: | 23 November 2009 |
| Date of Last Submission: | 28 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 24 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kelly |
| Solicitors for the Applicant: | Fowler Predny Solicitors |
| Counsel for the Respondent: | Mr Friedlander |
| Solicitors for the Respondent: | Aubrey Brown Partners |
| Counsel for the Independent Children’s Lawyer: | Ms Castle |
| Solicitors for the Independent Children’s Lawyer: | Redleaf Family Lawyers |
THE COURT ORDERS THAT:
All previous orders in relation to the children, [X] born in 1999 and [Y] born in 2004 (‘the children”) be discharged.
The parties have equal shared parental responsibility for the children.
Unless otherwise agreed, the children live with MS GOLDSTEIN (“the Mother”) within a twenty-five (25) kilometre radius of Suburb A.
The children spend time with MR HOPKIRK (“the Father”) as follows:
(a)commencing 11 October 2010, during school terms
(i)in week one, from after school Thursday until before school on the following Monday (or Tuesday if a long weekend); and
(ii)in week two, from after school Thursday until before school Friday;
(b)commencing 24 September 2010, for half of all school holiday periods (“the holidays”) as agreed or, failing agreement:
(i)for the first half of the holidays in odd numbered years; and
(ii)for the second half of the holidays in even numbered years;
(c)where not already spending time with the Father, from 2:00pm Christmas Day until 2:00pm Boxing Day in even numbered years;
(d)on the Father’s birthday from after school until 6:30pm if a school day or from 10:00am until 2:00pm if a non-school day; and
(e)on Father’s Day at times as agreed between the parties or, failing agreement, from 6:00pm on the Saturday prior until 6:00pm Fathers’ Day.
Where not already spending time with the Mother, the children spend time with…
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- AGLC
- GOLDSTEIN & HOPKIRK [2010] FMCAfam 469
- Case
- [2010] FMCAfam 469
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included establishing an appropriate shared parental responsibility arrangement, determining a primary residence for the children, setting out a detailed schedule for the children’s time with each parent, and ensuring provisions for communication and cooperation between the parents. Additionally, the court needed to address the parents' obligations regarding their children's education, healthcare, and participation in extracurricular activities. The court also considered the requirement for both parents to attend a post-separation parenting program and the implications of their failure to comply with court orders.
The court determined that both parents should have equal shared parental responsibility for the children. The primary residence for the children was set within a 25-kilometre radius of Suburb A with the Mother, while the Father was granted specific visitation rights during school terms and holidays. The court set out detailed arrangements for the children's time with each parent, including special occasions such as birthdays and public holidays. Communication between the children and their parents was also regulated, with specific times and conditions for telephone contact. The court further mandated that both parents complete a post-separation parenting program to assist in improving their communication and cooperation. Finally, the court outlined various obligations for the parents, including enrolling the children in agreed activities, notifying each other of changes in contact details, and refraining from denigrating the other parent in the children's presence.
Orders
Orders of the court
1.
All previous orders in relation to the children, [X] born in 1999 and [Y] born in 2004 (‘the children”) be discharged.
2.
The parties have equal shared parental responsibility for the children.
3.
Unless otherwise agreed, the children live with MS GOLDSTEIN (“the Mother”) within a twenty-five (25) kilometre radius of Suburb A.
4.
The children spend time with MR HOPKIRK (“the Father”) as follows:
(a) commencing 11 October 2010, during school terms
(i) in week one, from after school Thursday until before school on the following Monday (or Tuesday if a long weekend); and
(ii) in week two, from after school Thursday until before school Friday;
(b) commencing 24 September 2010, for half of all school holiday periods (“the holidays”) as agreed or, failing agreement:
(i) for the first half of the holidays in odd numbered years; and
(ii) for the second half of the holidays in even numbered years;
(c) where not already spending time with the Father, from 2:00pm Christmas Day until 2:00pm Boxing Day in even numbered years;
(d) on the Father’s birthday from after school until 6:30pm if a school day or from 10:00am until 2:00pm if a non-school day; and
(e) on Father’s Day at times as agreed between the parties or, failing agreement, from 6:00pm on the Saturday prior until 6:00pm Fathers’ Day.
5.
Where not already spending time with the Mother, the children spend time with the Mother from 2:00pm Christmas Day until 2:00pm Boxing Day in odd numbered years.
6.
Where not already spending time with the Mother, the children are to spend time with the Mother on Mother’s Day at times as agreed between the parties or, failing agreement, the children shall be returned by the Father to the Mother’s care at 6:00pm on the Saturday evening prior to Mothers Day.
7.
On each of the children’s birthdays, the children spend time with the party whom they are not otherwise living with or spending time with on those days at times as agreed between the parties or, failing agreement, from after school until 6:30pm on school days or from 10:00am until 2:00pm if a non-school day.
8.
In the event that changeover does not occur at the children’s school, then unless otherwise agreed, changeover occur at Meeting Place A.
9.
The children are to communicate with both parents by telephone, or internet equivalent, (“telephone time”) at any reasonable time as agreed or, failing agreement:
(a) when the children are otherwise living with or spending time with the Mother, the Father can nominate a half hour period between the hours of 5:00pm and 7:00pm three evenings per week for telephone time;
(b) when the children are otherwise living with or spending time with the Father, the Mother can nominate a half hour period between the hours of 5:00pm and 7:00pm two evenings per week during school terms and three evenings per week during school holidays for telephone time;
(c) each party will provide the other with their telephone time nominated periods in writing within 48 hours of the date of these orders and thereafter if either party wishes to change their nominated periods they shall provide the other party with at least seven (7) days written notice prior to any such change;
(d) unless as otherwise agreed between the parties, each party will supply the other with a mobile telephone within seven (7) days from the date of these orders to be used for telephone time only, except in emergency situations, and further that:
(i) each party is to ensure that the mobile telephone provided by the other is switched on and its battery is fully charged;
(ii) the children are otherwise available and encouraged to make or receive the telephone call;
(iii) the children are discouraged from making any other telephone calls or text messages not related to telephone time, except in emergency situations; and
(iv) where a pre-paid mobile telephone is provided, the party providing such shall ensure that the account has sufficient credit to enable calls to be made and/or received during telephone time.
10.
Unless otherwise agreed between the parties in writing, the children complete their primary school education at the [omitted] School.
11.
Each party be entitled to receive all notes, reports, newsletters and the like from the children’s schools and participate in any meetings or events to which parents are invited to attend.
12.
Each party be at liberty to attend the children’s schooling, sporting and extracurricular activities and each party ensure that the children attend all sporting and extracurricular activities in which they may be enrolled from time to time.
13.
Each party forthwith, and from time to time as required, do all things and sign all documents necessary to enrol the children in agreed sporting and extracurricular activities.
14.
Each party notify the other party of any change to his or her residential address and/or telephone contact details within 48 hours of such change taking place.
15.
Each party notify the other party as soon as practicable of any serious illness, injury or medical emergency in respect of the children and for the purposes of obtaining non-urgent medical treatment, the parties shall take the children to Dr M or such other available doctor at the [omitted] medical centre.
16.
Each party be restrained from denigrating:
(a) the other party;
(b) any partner of the other party; or
(c) any family member of the other party
in the presence of the children.
17.
Each party be restrained from smoking or consuming alcohol to excess whilst in the presence of the children.
18.
In the event that the parties are unable to reach agreement regarding the children’s long term care, welfare and development (including the children’s schooling, sporting and extracurricular activities) both parties participate in family dispute resolution.
19.
Pursuant to s.13C of the Family Law Act 1975 (“the Act”) the parties:
(a) attend and complete, as soon as practicable, a post-separation parenting program (“the Program”) at an organisation as agreed or, failing agreement, at an organisation nominated by the Independent Children’s Lawyer;
(b) sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
(c) if applicable, pay and otherwise be responsible for all costs associated with the Program; and
(d) provide an appropriate certificate of completion of the Program to the other party or the other party’s solicitor.
20.
Subject to paragraph 19(a) herein, the appointment of the Independent Children’s Lawyer be discharged.
21.
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A. The purpose of paragraph 19 herein is to assist the parties to develop the ability to communicate with each other directly.
B. Pursuant to ss.65DA(2) and 62B of the Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and those particulars are included in these Orders.
C. Pursuant to r.21.15 of the
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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