Gottspiel and Rufus
[2009] FamCA 512
•18 June 2009
FAMILY COURT OF AUSTRALIA
| GOTTSPIEL & RUFUS | [2009] FamCA 512 |
| FAMILY LAW – CHILDREN – Whether equal shared responsibility is possible where the parties are antipathetic towards each other and do not communicate orally – parties were in a de facto relationship for 16 years – parties each gave birth to children (Respondent gave birth to twin boys in 1997, Applicant gave birth to a son in 2001) – by what surname the children should be known – whether declaration of parentage for children of respective non-biological mothers should be made (substantial consent to this proposed order between the parties) – what time should be spent between the two parents given substantial agreement between the parties about quantity but not actual days – what allocation of time to be spent during school holidays between parties and children |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA, 69VA |
| APPLICANT: | Ms Gottspiel |
| RESPONDENT: | Ms Rufus |
| FILE NUMBER: | CAC | 588 | of | 2007 |
| DATE DELIVERED: | 18 June 2009 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 15-17 June 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr D Farrar |
| SOLICITOR FOR THE APPLICANT: | Farrar Gesini & Dunn |
| COUNSEL FOR THE RESPONDENT: | Mr I Nash |
| SOLICITOR FOR THE RESPONDENT: | Dobinson Davey Clifford Simpson |
Orders
The applicant, Ms Gottspiel, and the respondent, Ms Rufus, will share equal parental responsibility for the children W, born on … July 2001, and N, born on … September 1997, and A, born on … September 1997.
a.Notwithstanding the last mentioned order, in relation to long-term issues concerning any child’s education including the schools that that child will attend and any issue relating to the health of such child.
b.In relation to any such issue nothing herein permits either parent to undertake any decision about any child’s education or health without consultation with the other parent.
c.Notwithstanding the last mentioned order neither parent will commit any child to any private school which would involve the commitment of the other parent to financial contribution without that parent’s consent. However nothing in this sub-order prevents applications being made to the Child Support Agency for a departure from existing child support arrangements to take account of the possibility that either or both parents should contribute to the costs of education of the children.
Pursuant to s 69VA of the Family Law Act 1975 (Cth) each of Ms Gottspiel and Ms Rufus are declared to be a parent of the children W, born on … July 2001, and N born on … September 1997 and A born on … September 1997.
a. All three children will spend time with the applicant (over a fourteen day cycle) from after school on the Thursday of the first week of the fourteen day cycle until after school on the following Tuesday (in the second week of the fourteen day cycle).
b.W will spend the next two days, that is the Wednesday and Thursday, of the second week of the fourteen day cycle with the applicant. A and N will spend those days with the respondent.
a. All three children will spend the following time with the respondent:
i.From after school on the Monday of the first week (of the fourteen day cycle) until after school on Wednesday of the first week of the fourteen day cycle.
ii.N and A will spend from after school on the Wednesday of the second week of the fourteen day cycle until they return to school on the Monday of the first week in the next fourteen day cycle with the respondent.
iii.W will spend from after school on the Friday of the second week of the fourteen day cycle until he returns to school on the Monday of the first week of the next fourteen day cycle with the respondent.
Notwithstanding the last mentioned orders the following special days will be celebrated and time will be spent with the parents:
a.All of the children will spend from after school until 5.00 pm with the parent with whom they are not living on each of the children’s birthdays.
b.All of the children will spend from after school until 7.00 pm with the parent with whom they are not living if it is that parent’s birthday.
c.The parents will make such arrangements as they consider to be appropriate about Mother’s Day when no order is made in relation thereto.
Notwithstanding the orders made hereafter in relation to the long vacation at the end of the year the children will spend Christmas Eve in each year (unless the parents otherwise agree) with the respondent between the hours of 9.00 am and 10.00 pm.
a.The children will spend each Christmas Day with the applicant (if they are not otherwise living with her in accordance with these orders) from 9.00 am until 8.00 pm (unless the parties otherwise agree).
The three children will spend the first half of each of the shorter school holiday periods with the applicant in years ending in an odd number and with the respondent in years ending in an even number or zero and will spend the other half of the holidays with the other parent (unless the parties otherwise agree).
For the Christmas school holidays the three children will spend time with each of the parents alternately on a pattern of two weeks, two weeks, one week, one week with their spending time with the applicant for the first two weeks in years ending in an odd number and with the respondent in years ending in an equal number or zero and alternating thereafter (unless the parties otherwise agree).
a. Each of the parties be and is hereby restrained from changing any child’s surname from, in the case of W, “Gottspiel” or in the case of A and N, “Rufus”.
b.However, each parent will cause the children to incorporate into their forenames the surname of the other parent so that W will be known as W Rufus Gottspiel, N will be known as N Gottspiel Rufus and A will be known as A Gottspiel Rufus.
c.Either parent may use this order for the purposes of formally changing the birth certificate for any child but is not obliged to do so.
d.Each parent will refer to the children by the names set out above and be and is hereby restrained from causing or allowing (to the extent that she has any ability so to control) any other person or body from referring to any of the children other than by the surnames set out above.
Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
The matter be removed from the active cases list.
IT IS NOTED that publication of this judgment under the pseudonym Gottspiel & Rufus is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 588 of 2007
| MS GOTTSPIEL |
Applicant
And
| MS RUFUS |
Respondent
REASONS FOR JUDGMENT
Although the parties in this matter have been in dispute for a considerable time and although the hearing itself took over two days by the time the matter concluded there was very little that remained for my determination.
Background
By way of background I set out hereunder the chronology relating to the early part of the matters between the parties.
| February 1964 | Respondent born, presently 45. |
| July 1966 | Applicant born, presently 42. |
| 1989 | Parties commence de facto relationship. |
| 1994 to 2000 | Parties live together in Newcastle. |
| March 1995 | TL, son of KL and AL born, currently 14. |
| August 1996 | The parties and Mr K enter into a formal written agreement concerning the artificial insemination process to be undertaken by the parties. |
| September 1997 | N born following artificial insemination procedure, presently 11. |
| September 1997 | A born following artificial insemination procedure, presently 11. |
| N and A are the respondent’s biological children. The parties subsequently have a naming ceremony for the twins. | |
| Following the birth of the twins, parties care for the twins full time for 3½ months; respondent is then primary carer of the twins for the next 3½ years; applicant works part time. | |
| December 1997 | LL, son of KL and AL born, currently 11. |
| March 2000 | Parties return to live in Canberra. |
| 2000 | A and N commence attending B Preschool, 2 days per week. |
| April 2001 | Respondent takes on part time work, 2 days a week. |
| July 2001 | W born, following artificial insemination procedure, almost 8. W is the applicant’s biological child. The parties subsequently have a naming ceremony for W. |
| Following W’s birth the applicant stays at home with W for 6 months, Respondent at home for 3 days during working week and working other two days per week. | |
| When W is 6 months old, applicant returns to 3 days work each week and respondent works on complimentary days, 2 days per week. | |
| 2002 | To the respondent’s recollection, applicant commences working alternate Saturday mornings. |
| February 2003 | The twins commence kindergarten for five days each week. W remains at home. |
| October 2004 | W commences preschool, 2 days each week. Parties share W’s care when home – respondent cares for W for 2 days each week and the applicant cares for W for one day each week. |
| 29 March 2005 | Parties separate. W is 3½ and the twins are 7½ . |
| Parties immediately re-partner. |
Orders sought
The orders that each of the parties sought initially are set out in Endnote 1 Endnote 1 and Endnote 2Endnote 2 respectively.
the law
Section 60B of the Family Law Act 1975 (Cth) sets out the objects and principles that underpin the Part VII of the Act relating to children. Section 60B(1) relevantly provides:
The objects of this Part are to ensure that the best interests of the children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring the parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Section 60B(2) reads:
The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with both of their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B(3) is irrelevant for these purposes.
In determining what constitutes the best interests of the child, I am obliged to take account of the matters set out under s 60CC. I am obliged to do this because in making any particular parenting order the Court must regard the best interests of the child as the paramount consideration, which is the effect of s 60CA of the Family Law Act 1975 (Cth). Section 60CC(2) and s 60CC(3) relevantly provides:
Primary Considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional Considerations
(3) Additional considerations are:
(a)Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)The nature of the relationship of the child with:
(i)Each of the child’s parents; and
(ii)Other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family; if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
I must also go on to consider s 60CC(4) & (4A):
Without limiting [s 60CC(3)(c) and s 60CC(3)(j)], the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The Family Law Act 1975 (Cth) provides that if a parenting order provides that a child's parents are to have equal shared parental responsibility the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child,[1] and consider whether a child spending equal time with each of the parents is reasonably practical,[2] and if it is, consider making orders to provide for the child to spend equal time with each of the parents.[3] The Act goes on to provide that if the parenting order provides that the parents are to have equal shared parental responsibility[4] and the Court does not make an order for the child to spend equal time with each of the parents,[5] then the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child.[6] Consequentially, the Court must consider whether the child spending substantial and significant time with each of the parents is reasonably practicable.[7]
[1] Family Law Act 1975 (Cth) s 65DAA(1)(a).
[2] Family Law Act 1975 (Cth) s 65DAA(1)(b).
[3] Family Law Act 1975 (Cth) s 65DAA(1)(c).
[4] Family Law Act 1975 (Cth) s 65DAA(2)(a).
[5] Family Law Act 1975 (Cth) s 65DAA(2)(b).
[6] Family Law Act 1975 (Cth) s 65DAA(2)(c).
[7] Family Law Act 1975 (Cth) s 65DAA(2)(d).
The definition of "substantial and significant time" is contained in s 65DAA(3). The section in fact provides very little guidance about what would constitute substantial time because it has no temporal connotations whatsoever, notwithstanding that most times people would at least associate substantial, at least in part, with quantity of time rather than simply particular events. But what it does do is prescribe in some detail the sorts of experiences the children ought to have with their parents. In particular, it means that the time that the child spends with a parent should include both days that fall on weekends and holidays[8] and days that do not fall on weekends and holidays[9] and that the time the child spends with the parent allows the parent to be involved in the child's daily routine[10] and occasions and events that are of particular significance to the child,[11] and that the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.[12]
[8] Family Law Act 1975 (Cth) s 65DAA(3)(a)(i).
[9] Family Law Act 1975 (Cth) s 65DAA(3)(a)(ii).
[10] Family Law Act 1975 (Cth) s 65DAA(3)(b)(i).
[11] Family Law Act 1975 (Cth) s 65DAA(3)(b)(ii).
[12] Family Law Act 1975 (Cth) s 65DAA(3)(c).
In determining the reasonable practicality of any arrangements, in this regard, the Family Law Act 1975 (Cth) provides some guidance in s 65DAA(5) which provides as follows:
In determining for the purposes of [s 65DAA(1) and s 65DAA(2)] the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing arrangement of that kind;, and
(d)the impact an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Breakdown of the parties’ relationship and its effect on the children
The parties were significantly antipathetic to each other, which in the circumstances of their separation and re-partnering is probably understandable or at least predictable. Notwithstanding that antipathy, the parties have managed a complicated arrangement where the children spent about six days with the non-biological parent and eight days with the biological parent. However, these arrangements involved many hand-overs and created tension between the parties.
The children were apparently aware of the tension and were seeking to in effect look after their mums as was reported by Ms D, the Family Consultant.[13] At the beginning of the proceedings, each of the parties produced pictorially, different arrangements they suggested should apply. In essence, the applicant sought that W should spend eight days in a fortnight period with her and six days with the respondent and vice versa with the twins.
[13] Exhibit “J1”, Family Report of Ms D, 6 March 2009, 11; sworn evidence of Ms D as presented by her in Court on 17 June 2009.
The respondent sought that W spend seven days a fortnight with her and that the other boys spend eight days with her. The applicant asserted that the reason for the additional time she wanted to spend with W was the significance of the biological connexion. The respondent asserted that the extra day that she sought that W would spend with her related to W’s wishes.
The Family Report supported the proposition that the children, although particularly in W’s case somewhat confused by the existing arrangements, did not wish to change them.
The Family Reporter, however, indicated in her oral evidence that she was confident that because each of the parents was such a good parent and, from her observation of the children, that they would adjust to whatever changed circumstances may be ordered or agreed.
The parents also sought different orders about parental responsibility. The respondent sought that parental responsibility be equally shared. The applicant sought that she have sole parental responsibility for W and that the respondent have sole parental responsibility for the other boys. In cross‑examination, the applicant conceded that if the respondent was asserting that there should be equal shared responsibility for the twins with the applicant that she would accept this arrangement but would seek that there be sole parental responsibility in respect of W with her.
There was also an issue between the parties about W’s surname. The applicant had changed W’s surname unilaterally by altering his birth certificate to exclude a surname of Rufus by which he was recorded originally. When he commenced school she enrolled him as “Gottspiel.” The applicant said, somewhat disingenuously, that she did this because that was what was on his birth certificate. As she had changed his birth certificate, this was factually true, but did not remove my view that this was done as part of a program to change the name without consultation. Nevertheless she had no objection to the twins being known by the surname of “Rufus.”
For her part, the respondent sought that the applicant should be restrained from referring to W otherwise by the hyphenated surname “Gottspiel-Rufus.” At the same time, she did not seek nor would she agree that the same surname should be applied to the twins. I suppose I should add for completeness that neither party sought that the children’s surname be “Rufus-Gottspiel.”
Evidence and cross‑examination of the parties proceeded over some two days in Court. The applicant had sought to demonstrate that because the parties were virtually unable to communicate except by e-mail that the concept of shared parental responsibility was not practicable.
The respondent had a more difficult task (it would appear at first blush) to demonstrate that, notwithstanding the parties could not be within a short distance of each other without there being some difficulty, they were able to cooperate adequately for the purposes of sharing parenting and parental responsibility. The position of the respondent was essentially that although there had been difficulties from time to time, they had managed to achieve a high level of cooperation over some years.
The matters that remained in issue at the end of the proceedings
By the end of the second day of the final hearing, it became apparent that there were more differences in detail than in substance. I arranged for the parties to be aware that a possibility might be that I would order that the three children spend equal time with each parent on an alternate week basis. This would have the effect of reducing the numbers of hand-overs which in the past had been somewhat problematic and providing a simple and predictable arrangement. There was an element of the judgment of King Solomon in this approach.[14] The parties had really not demonstrated that they could not make a shared arrangement work, even though their level of communication was highly charged on occasions. Moreover, the differences between them as to why it should be more time with one than the other were really a matter of a day or two rather than because of substantial differences. The parties considered these matters with their counsel for a time but it was determined that the matter should then proceed.
[14] 1 Kings 3:16-28 (although in no way do I claim his wisdom!)
Ms D, the Family Consultant, gave her evidence and was asked questions by both counsel. Ms D was of the opinion that although the children had expressed their agreement (in large measure) with the existing arrangements, they could, because the parents were good parents and because the children were resilient, accommodate any of the projected arrangements. The children would be grateful that there was some certainty in the arrangements in the future.
Prior to the evidence of the Family Consultant, the applicant put forward yet a further proposal which involved (on a two week cycle) days in the middle of the cycle being effectively reserved by each of the biological mothers with her biological children. Otherwise the children would be together.
The respondent, (although she indicated that she would accept a seven/seven split) said that she preferred that the existing arrangements should continue. This essentially was an eight/six, six/eight arrangement but the days involved were different from the proposal of the applicant.
A further complication in these proceedings was the effect, if any, that the L children would have on the process. It had been put during the course of proceedings that I could make no certain finding about what would happen in relation to the L children, as to some extent they and their parents were awaiting the settling of this matter to determine what their arrangements would be. During final submissions, it was urged upon me by Mr Nash, for the respondent that I should take account of the existing arrangements which had an effect (he suggested) to make preferable his client’s eight/six, six/eight division rather than the applicant’s eight/six, six/eight division.
I decline to take account of what arrangements might be made for the L children following upon these orders. This is consistent with the approach both parties took during the course of the proceedings and at the last moment to try to inject their arrangements as a significant and influential factor to be considered under s 60CC(3)(b)(ii) of the Family Law Act 1975 (Cth) was unrealistic and inappropriate.
I am still attracted to some extent by the proposition that time between the parents should be divided equally. This does not follow from a finding I have been prepared to make that the parents should have equal shared parental responsibility subject to some qualifications. Rather, even if I were to determine that they should not have equal shared parental responsibility, there are strong reasons in this matter why these children should have shared time with their parents.
Time to be spent between the parties and the children
Nevertheless, it seems to me that to enforce an arrangement which neither parent sought or was particularly comfortable with in the face of their mutual decision that the children should spend unequal time (although marginally with each of them) would be somewhat perverse. As it transpired, at the end of the proceedings each parent was of the opinion that their biological children should spend eight days in the fourteen day cycle with them respectively and that the other child should spend six days. (That was not the respondent’s original application but she reverted to the existing arrangements during final addresses.)
The current arrangements are quite confusing and really only capable of easy understanding by looking at a chart. The proposal by the applicant for effectively a change-over period in the middle of the fourteen day cycle has the virtue of being closer to the simplicity that would be effected by a seven/seven split yet reflecting the views of the parties that they should have an eight/six, six/eight arrangement. Accordingly, I will make orders to give effect to that determination.
The surname the children will be known by
The surname of W still remained in contention although in the end there was little to commend that the children should not be known by their separate birth mother’s names.
At the last day of the hearing, Ms D expressed a measure of amicable concern about this matter and appeared relieved that it was not her determination to make.
All of the children were known initially as “Rufus” and were given those names by the mothers. However, W’s name had been changed (although unilaterally) to “Gottspiel” and the Rufus children had been known as “Rufus” throughout their lives. The respondent proposed that W should be known by the hyphenated name “Gottspiel-Rufus” but did not propose any similar arrangement for her own biological children.
The applicant suggested that W should be known by the surname “Gottspiel” but that the children of Ms Rufus should be known as “Rufus.” The end result of this, of course, is that each of the parties in essence agreed that the children of the two of them should have different names. It seems difficult in such circumstances to say that the hyphenated name proposed by the respondent must in some ways be superior to the proposition that W should bear the name of his birth mother alone.
I agree, however, that in recognition of the unusual, possibly unique, heritage of these children it would be appropriate for the other mother’s name to appear as one of their forenames. Notwithstanding that I was not directly asked to make an order to that effect, I have made an order to that effect in the course of these proceedings in recognition of the issues between the parties. I do not require either parent to make any formal adjustment to the official records but it is appropriate that the name should be included and should represent to the boys, as they grow up, a recognition of the importance in their lives of their other parent.
Declarations
I was also asked by the respondent, pursuant to s 69VA of the Family Law Act 1975 (Cth), to make a declaration that each of the parents was the parent of all three children. This could have effect for child support assessments and other matters but is appropriate to be made in these circumstances and merely reflects the acknowledgement that each of the parents has with the other. I will make those declarations.
School holidays
There remained a dispute about the school holidays. There was agreement that the holidays should be divided equally between the parents and indeed there was agreement that the shorter holidays should be divided between the parents equally with each parent taking a turn for the first week of the school holidays in successive years.
The long holidays at the end of the year were not, however, agreed. The applicant sought an arrangement which meant that the period would be divided two/two, one/one in weeks. The respondent sought that the period be divided equally but week and week-about.
Each of the parties had sought, as appears in Endnote 1, some time for the parents to be able to have a more extended holiday with the children. In the end provided that the parents retain an option to have an agreement to the contrary it seems to me that it is preferable to give each of them an opportunity to spend some time on an extended basis with the children each year. Accordingly, the proposition of the applicant of two/two, one/one weeks seems to me to be preferable. It reflects, in essence, what each of the parties were asking for in a different way and also acknowledges the fact that as the children get older it is more appropriate that there should be a longer time.
Nothing prevents the parents from reaching agreement (as indeed they have in the past) for different arrangements which may suit them better from time to time.
Special days
It was agreed no provision should be made for Mother’s Day and I have made none. There was also some minor differences about how other special days might be treated. First the children’s birthdays, the proposals varied towards the end, however, in my opinion, the appropriate thing is that the parent with whom the children are not living on their birthday should have all three children from after school until about 5pm. This would enable them to have some sort of celebration but not interfere with the celebration with the other parent.
Each parent sought in part there should be some arrangement for her birthday. In this regard it was suggested, and I accept that, an extended period for the three children would be appropriate because there would be no parallel celebration in the other parent’s home. Accordingly, the period should be from after school until 7pm.
Finally, there was some dispute about Christmas Day. The respondent in her affidavit[15] set out the arrangements that she said have always applied. This meant that the Christmas Eve was in accordance with a German tradition, an important time for the respondent. It did not have an equivalent importance for the applicant. However, the applicant regarded Christmas Day more important for both the giving of gifts and for dinner. The respondent sought the morning time on Christmas Day should be with the applicant but that the children should be with her in the afternoon. I do not agree with that latter qualification of this matter. I believe the children should spend time with the respondent on Christmas Eve – for the whole of the day, rather than from a period at night as she originally proposed and for the whole of the day and should spend time with the applicant the whole of Christmas Day itself. This decision is arbitrary in the end but effects in my opinion a fair division between the parents by reference to their own particular traditions and concerns.
[15] Affidavit of the respondent, filed 22 May 2009, para [239].
Conclusion
Those, therefore, are the matters that were in dispute and the resolution of them I note that orders in relation to the shared parental responsibility with qualifications in relation to certain issues have been the subject of agreement between the parties as has the division of holidays although the detail as I have mentioned about was not agreed.
I do not believe it is appropriate or necessary for the parties to be ordered to attend on the ARCK program. They are free to do so if they wish to but it seems irrelevant in the light of their substantial agreement and the proposing of the orders that I now make. This resolves all matters between the parties and I wish them well in their future endeavours.
I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.
Legal Associate:
Date: 18 June 2009
Endnote 1
Applicant’s Minute of Orders Sought – Filed in Court 15 June 2009
1.The Applicant [Ms Gottspiel] have sole parental responsibility in relation to the child [W] born […] July 2001 (“[W]”).
2.The Respondent [Ms Rufus] have sole parental responsibility in relation to the children [N] born […] September 1997 and A born […] September 1997 (“[N] and [A]”).
3.That [W] shall live with the Applicant [Ms Gottspiel].
4.That [n and A] shall live with the Respondent [Ms Rufus].
5.Each of the parties shall cause [W] to spend time with the Respondent during school Terms as follows:-
a.From after school on Thursday in Week 1 until after school on Monday in Week 2;
b.From after school on Wednesday in Week 2 until after school of Friday of that week.
6.Each of the parties shall cause [N and A] to spend time with the Applicant during school Terms as follows:
a.From after school on Monday in Week 2 until the commencement of school on Wednesday of that week;
b.From after school on Friday in Week 2 until the commencement of school on the following Tuesday in Week 1.
7.Each of the parties shall cause [W, N and A] to spend time with the Applicant and the Respondent during school holidays as follows:-
a.During school holidays at the end of Terms 1, 2, 3:-
i.With the Applicant from after school on the Friday of the last week of the Term until 5.00pm on the following Friday;
ii.With the Respondent from 5.00pm on middle Friday of the school holidays until 5.00pm on the last Friday of the school holiday period, from which time they will be with the Applicant until [W] goes to the Respondent on the following Thursday in accordance with Order 5(a) and [N and A] go to the Respondent on the following Tuesday in accordance with Order 6(b).
b.During the December/January school holidays as follows:
i.During Week 1 the routine prescribed by orders 5 and 6 shall apply.
ii.From 5.00pm on the Friday of Week 1, all children shall live with the Applicant.
iii.From 5.00pm on the Friday of Week 2, all children shall live with the Respondent.
iv.From 5.00pm on the Friday of Week 3, all children shall live with the Applicant.
v.From 5.00pm on the Friday of Week 4, all children shall live with the Respondent.
vi.From 5.00pm on the Friday of Week 5, [N and A] shall live with the Respondent and [W] shall live with the Applicant.
vii.At 5.00pm on the Friday of Week 6, [N and A] shall go to the Applicant until the following Tuesday, in accordance with Order 6(b). [W] will remain with the Applicant until he goes to the Respondent on the following Thursday in accordance with Order 5(a).
8.That in relation to Christmas Day the party with whom the children are not living on that day shall spend time with the children as agreed between the parties or in default of agreement from 2.00pm till 7.00pm.
9.The party with whom the children are not living with on each of the children’s birthdays shall spend time with all children as agreed between the parties or in default of agreement from 3.00pm until 5.00pm.
10.The application for orders 11 and 12 of the Minute of Orders sought by the Respondent Mother filed on 23 November 2007 be dismissed.
11.The Respondent be restrained from changing the [W’s] surname from “[Gottspiel]” and from causing any other person or body to refer to the child by any surname other than “[Gottspiel]”.
12.The parties attend the ARCK Program for assistance in relation to the implementation of these orders.
NOTATIONS
A.It is the intention of the parties that the routine laid down in these orders may be changed by mutual consent to accommodate significant family events. Each party will communicate to the other, as far in advance as possible, concerning such matters and the parties will make all reasonable attempts to enable the children to attend such events, and to agree upon make-up time where appropriate.
B.IT IS NOTED THAT each parent agrees in principle to the children travelling overseas with the other parent provided that reasonable notice is given, information is provided as to the itinerary and movements, the trip does not unreasonably infringe on the education of the children, and adequate make-up time occurs.
B.
Endnote 2
Respondent’s Minute of Orders Sought – Filed 8 May 2009
The Respondent, [Ms Rufus] seeks the following final Orders; that:
1.Pursuant to Section 60H of the Family Law Act 1975 (“Cth”):
a.The Applicant be declared a parent of the children [N], born […] September 1997 (“[N]”) and [A] born […] September 1997 (“[A]”),
b.The Respondent be declared a parent of the child [W], born […] July 2001 (“[W]”).
2.The parties have equal shared parental responsibility for [N], [A] and [W] (“the children”).
3.Forthwith upon the making of these orders, the parties shall do all such acts and things and sign any documents as may be necessary to:
a.Enable the Applicant to be registered as a parent of [N] and [A] with the Registry of Births Death and Marriages.
b.Enable the Respondent to be registered as a parent of [W] with the Registry of Births Death and Marriages and that [W’s] name be recorded as “[W Gottspiel-Rufus]”; and
c.Thereafter:
i.The parties be restrained from changing the birth registration details of all three children except with each other’s consent or order of the Court.
ii.The parties be restrained from using any other surname for [W] other than “[Gottspiel-Rufus]”.
iii.The parties do all such acts and things and sign all documents as may be necessary to ensure that [W] is registered at his school and all other external agencies, institutions, care organisations and clubs using his full name of [W Gottspiel-Rufus].
4.Pursuant to section 106A of the Child Support Assessment Act 1989 (Cth), the Applicant be declared a parent of the children [N and A] and thereafter, the Respondent be entitled to an administrative assessment of child support for the said children as against the Applicant.
5.Pursuant to section 106A of the Child Support Assessment Act 1989 (Cth), the Respondent be declared a parent of the child [W] and thereafter, the Applicant be entitled to an administrative assessment of child support for the said child as against the Respondent.
6.The children [N] and [A] shall live with the Respondent as follows:
a.In week one from 9.00am Wednesday until 3.00pm the following Monday;
b.In week two from 9.00am Wednesday until 11.00am Saturday;
c.Each Monday from 3.00pm until 5.30pm.
And the children shall live with the Applicant at all other times.
7.The child [W] shall live with the Respondent as follows:
a.In week one from 9.00am Wednesday until 9.00am Thursday and from 9.00am Friday until 3.00pm the following Monday;
b.In week two from 9.00am Wednesday until 11.00am Saturday;
c.Each Monday from 3.00pm until 5.30pm.
And [W] shall live with the Applicant at all other times.
8.During school holiday periods, the overnight arrangements provided for above shall continue. During the day, the children will be cared for by the parties by agreement and failing agreement the children shall be cared for by the Respondent during the day on Mondays, Fridays and alternate Wednesdays, and shall be cared for by the Applicant during the day on Tuesdays, Thursdays and alternate Wednesdays.
9.In the event of a declared school-free day during school terms, or in the event that any of the children are too ill to attend school, the children to be cared for during the day by agreement, and in default of agreement the Respondent will care for any of the children on a Monday, Wednesday or Friday, and the Applicant will care for them on a Tuesday or Thursday.
10.Each party shall be at liberty to enjoy three holiday periods each year with the children within the Commonwealth of Australia of up to seven days on each occasion. The party wishing to travel with the children must provide the other party with the addresses and phone numbers for the accommodation at which the children will be staying, at least 7 days prior to departure.
11.In addition to the arrangements provided in Order 10 above, each party shall also be at liberty to enjoy one overseas holiday period with the children each year of up to 21 days. The party wishing to travel with the children must provide the other party with copies of return tickets for the children and a detail itinerary providing the addresses and phone numbers for the accommodation in which they children will be staying, at least 14 days prior to departure. In this regard:
a.The children shall be permitted to travel internationally pursuant to the arrangements provided for in these Orders.
b.The parties shall do all such acts and things and sign any documents, including any passport applications, to enable the children to travel internationally.
12.In the event the children are not otherwise in the Respondent’s care:
a.On Christmas Eve by agreement and in default of agreement the Respondent care for the children between 4.00pm and 10.00pm.
b.On Christmas Day by agreement and in default of agreement the Respondent care for the children between 3.00pm and 8.00pm.
c.On each of the children’s birthdays by agreement and in default of agreement the Respondent care for the children between 3.00pm and 5.30pm.
d.On the Respondent’s birthday by agreement and in default of agreement the Respondent care for the children between 7.30 and 9.00am on a school day, or between 8.00am and 10.00am on a non-school day.
13.In the event the children are not otherwise in the Applicant’s care:
a.On Christmas Day be agreement and in default of agreement the Applicant care for the children between 9.00am and 2.00pm.
b.On each of the children’s birthdays by agreement and in default of agreement the Applicant care for the children between 3.00pm and 5.30pm.
c.On the Applicant’s birthday by agreement and in default of agreement the Applicant care for the children between 7.30 and 9.00am on a school day, or between 8.00am and 10.00am on a non-school day.
14.Abandoned.
15.Abandoned.
16.Each party shall immediately inform the other of any health issues relating to either of the children while in that party’s care, including any emergencies, medical problems or illnesses suffered by either of the children and any medication prescribed for either of the children.
17.Each party shall keep the other informed of their residential address and contact telephone numbers, including landline numbers and will advise of any changes to those details within seven days.
18.Upon each of the children commencing Year 7, each party shall respect any view of the child/children in relation to visiting the other parent after school on weekends and during school holidays and shall facilitate any reasonable view expressed by the child/children to visit the other parent pursuant to this Order.
19.
Key Legal Topics
Areas of Law
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Family Law
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