FAMILY COURT OF AUSTRALIA
| GROTH & BANKS | [2017] FamCA 3 |
| FAMILY LAW – CHILDREN – Relocation –Where the mother seeks to relocate intrastate with the parties’ six year old child – Where the father opposes the application and seeks to restrain the mother’s relocation to a certain distance or alternatively change the child’s residence – Where the Court finds it is in the child’s best interests to relocate with the mother – Presumption of equal shared parental responsibility applied – Where the Court finds it is in the child’s best interests and reasonably practicable for the child to spend time with the father – Where the parties’ respective proposals lacked detail concerning the practicalities of the child spending time with the father upon relocating – Orders made for the child to spend each alternate weekend with the father and the parties to share the travel required to facilitate changeover – the child to spend time with the father on special occasions and for half of school holidays. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 64B(2)(i), 65DAA, 69ZT |
| AMS v AIF (1999) 199 CLR 160 |
| APPLICANT: | Mr Groth |
| RESPONDENT: | Ms Banks |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 865 | of | 2012 |
| DATE DELIVERED: | 13 January 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 4, 5, 6 & 7 October 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tim North SC |
| SOLICITOR FOR THE APPLICANT: | Nicholes Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Rohan Hoult |
| SOLICITOR FOR THE RESPONDENT: | Ian Robertson Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Paul Glass |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
BY CONSENT IT IS ORDERED THAT
All previous parenting orders be discharged save for the declaration contained in orders (a) and (b) made on 11 June 2013 by Cronin J.
The father and mother shall have equal shared parental responsibility for J born … 2010 (“the child”).
THE COURT ORDERS THAT
The child live with the mother and the mother be permitted to relocate with the child to Town D.
The parties do all things and execute all documents to ensure that the child is enrolled in and attends D Primary School.
The child spend time with the father as follows:
(a)During the school term, each alternate weekend from the conclusion of school on Friday (or 3.30pm on a non-school day) until the commencement of school on Monday (or where Monday is a non-school day, the next school day) with changeovers to occur as follows:
(i)On the first occasion each month:
A.the father to:
(a)collect the child from school…
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- GROTH & BANKS [2017] FamCA 3
- Case
- [2017] FamCA 3
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific terms of parenting orders concerning J's residence, the allocation of parental responsibility, and the detailed schedule for J's time with each parent. This included establishing arrangements for school terms, school holidays, and specific public holidays, as well as addressing the practicalities of relocation, school enrollment, and communication between the parents regarding J's well-being and education. The court also had to consider provisions for international travel and the management of J's passport.
By consent, the court ordered the discharge of all previous parenting orders, save for a declaration made on 11 June 2013. The parties were granted equal shared parental responsibility for J. J was ordered to live with the mother, who was permitted to relocate with J to Town D and enroll J in D Primary School. The court then set out a comprehensive schedule for J's time with the father, including alternate weekends during school terms, half of all school holidays, and specific arrangements for Father's Day, birthdays, and Christmas. Further orders addressed communication protocols, notification of illness or injury, access to medical and educational information, and provisions for overseas travel, including passport management and notice requirements. The court also made orders restraining the parties from denigrating each other in the child's presence and from discussing proceedings with the child. Finally, all extant applications were dismissed, and the matter was removed from the list of pending cases, with a fact sheet detailing the obligations and consequences of contravention of the orders attached.
Orders
Orders of the court
BY CONSENT IT IS ORDERED THAT
1.
All previous parenting orders be discharged save for the declaration contained in orders (a) and (b) made on 11 June 2013 by Cronin J.
2.
The father and mother shall have equal shared parental responsibility for J born … 2010 (“the child”).
THE COURT ORDERS THAT
3.
The child live with the mother and the mother be permitted to relocate with the child to Town D.
4.
The parties do all things and execute all documents to ensure that the child is enrolled in and attends D Primary School.
5.
The child spend time with the father as follows:
(a) During the school term, each alternate weekend from the conclusion of school on Friday (or 3.30pm on a non-school day) until the commencement of school on Monday (or where Monday is a non-school day, the next school day) with changeovers to occur as follows:
(i) On the first occasion each month:
A. the father to:
(a) collect the child from school at the commencement of time; and
(b) return the child to school at the conclusion of time;
(ii) On the second occasion each month:
A. the mother is to:
(a) deliver the child to the father at the McDonald’s Restaurant closest to halfway between the residences of the mother and the father as agreed in writing, or in default of agreement, the McDonald’s Suburb T at the commencement of the time; and
(b) collect the child from the father at the same location at the conclusion of the time; and
B. the father is to:
(a) collect the child from the mother at the McDonald’s Restaurant closest to halfway between the residences of the mother and the father as agreed in writing, or in default of agreement, the McDonald’s Suburb T at the commencement of the time; and
(b) return the child to the same location at the conclusion of the time.
(b) During school holidays:
(i) One half of all school holidays, being the first half in even numbered years and the second half in odd numbered years;
(ii) The time in Order (5)(a) above is suspended during school holiday periods;
(c) Otherwise, as agreed between the parties in writing.
6.
Notwithstanding any other order, the mother’s time with the child will be suspended and the child spend time with the father as follows:
(a) on Father’s Day each year from 10.00am until the commencement of school (or 9.00am on a non-school day) the following Monday;
(b) for two hours on both the child’s birthday and the father’s birthday from the conclusion of school (or 4.00pm on a non-school day) until 6.00pm; and
(c) in odd numbered years from 11.30am on 25 December until 3.00pm on 26 December.
7.
Notwithstanding any other order, the father’s time with the child shall be suspended as follows:
(a) in even numbered years from 11.30am on 25 December until 3.00pm on 26 December.
8.
Subject to Order 5(a)(ii), unless otherwise agreed in writing, for the purposes of facilitating the child spending time with the parents pursuant to these Orders, the parties shall cause changeover to occur at the child’s school on school days and all changeovers that occur on non-school days shall take place at the McDonald’s Restaurant closest to halfway between the residences of the mother and the father as agreed in writing, or in default of agreement, the McDonald’s Suburb T.
9.
Unless otherwise specified or agreed, the school holiday time shall commence:
(a) for the first half of the holidays, from the conclusion of school on the last day of the school term and conclude at 4.00pm on the day calculated to be halfway through the holidays; and
(b) for the second half of the holidays, from 4.00pm on the day calculated to be halfway through the holidays and conclude at 4.00pm on the day before the school term commences.
10.
For the purpose of these Orders:
(a) school holiday periods are defined by the school that the child is attending;
(b) the number of nights in each school holiday period shall be used to calculate one half of the school holiday period; and
(c) if there is an uneven number of nights, the mother shall retain the additional night.
11.
The parent with whom the child is not living or spending time shall be permitted to telephone the child whilst the child is in the other parent’s care and the other parent shall facilitate such telephone communication.
BY CONSENT IT IS OTHERWISE ORDERED THAT
12.
In the event that the child does not spend time with the father in accordance with these Orders:
(a) the father be afforded equivalent make up times at times to be agreed between the parties as soon as practicable; and
(b) failing agreement, within forty eight hours of a party informing the other the time cannot proceed, the time is to occur within fourteen days of the date on which the child was to be spending time with the father at times and dates nominated by the father and notified to the mother in writing.
13.
Both parties be restrained from:
(a) denigrating the other party or any member of the other party’s family in the presence or hearing of the child or allowing a third party to so do; and
(b) discussing these proceedings with or in the presence of, or within the hearing of the child or allowing a third party to so do.
14.
Each party shall notify the other party by telephone, text message or email, as soon as possible and in any event within twenty four hours, of any serious injury or illness suffered by the child while with that party.
15.
The mother keep the father informed by email at all times in writing of the names, addresses and telephone numbers of all medical professionals who have or may treat the child.
16.
The mother is to authorise each medical professional in writing within twenty four hours of the medical professional seeing the child in the form of Annexure A (with a copy to the father via e-mail) to provide copies of any notes, medical certificates, test results, letters of referrals, reports and letters received from other medical professionals to the father and authorise them to discuss any aspect of the child’s health with the father.
17.
Where the child does not attend school due to illness the mother shall:
(a) provide to the father via email within four hours, advice of the non-attendance and the reason why; and
(b) in the event the child attends a medical practitioner, provide to the father a copy of the medical certificate within twenty four hours.
18.
The mother or father be at liberty to deliver a copy of these Orders to any person or body engaged in the education, medical care, or child care of the child.
19.
The mother forthwith authorise any school the child may attend to provide the father with copies of reports, newsletters and announcements of school activities, or otherwise pertaining to the education of the child.
20.
If the school does not make available in writing to the father the documents referred to in Order (19) above, the mother shall then:
(a) provide written particulars, which includes by email, of such reports and/or activities to the father within three days of such documents or particulars being received by the mother from the school, and
(b) authorise staff members at any school the child may attend, to discuss the child’s progress with the father.
21.
Both parties be permitted to attend any school the child may attend for events to which parents are usually invited.
22.
Both parties be permitted to confer with any school the child may attend and attend any appointments individually made and the mother shall:
(a) provide any authority required by the school to give effect to this Order; and
(b) provide a copy of such authority to the father by email within fourteen days of the father making a request for such authority.
23.
The mother will keep the father informed of all regular activities the child attends at any other organisations including the nature of the activity and all times and locations that the child attends.
24.
The information referred to in Order (23) above is to be provided to the father by email within twenty four hours of receipt by the mother; and the mother shall provide any authority required by such organisation to give effect to this Order.
25.
The father be permitted to attend any activity referred to in Order (23) for events to which parents are usually invited or attend.
26.
The mother and father are hereby restrained from causing or permitting the child to undergo any religious ritual or induction, such as baptism or attend any such ceremony other than as a guest or attend any religious service, without first having obtained the other party’s prior consent in writing for the child to do so.
27.
Both parties shall do all things and sign all documents to ensure the child participates in the following Catholic sacraments and all necessary lead ups to:
(a) First Communion;
(b) Reconciliation; and
(c) Confirmation.
28.
Within thirty days of the date of these Orders the parties shall do all things and sign all documents necessary to obtain an Australian passport for the child, and thereafter, to ensure that the child has a current Australian passport at all times with the expense borne equally.
29.
Should the child’s passport be unable to be located at any time the parties shall:
(a) do all things and sign all documents necessary to obtain a replacement passport for the child within thirty days;
(b) if notice has been given by one party of overseas travel in accordance with Order (31) below, the parties shall do all things and sign all documents necessary to obtain an emergency replacement passport within twenty four hours and
(c) in all circumstances the party responsible for holding the passport when it was lost shall pay all required fees for its replacement.
30.
At times when the child is not travelling overseas, the father will retain the child’s passport and release it to the mother seven days prior to the departure date as notified to him in accordance with Order 31(b) below.
31.
The parties are permitted to take the child out of Australia for holidays and for other short periods of time and in relation thereto:
(a) unless the parties otherwise agree in writing, the occasions on which the parties take the child out of Australia shall coincide with the time which the parent would spend with the child pursuant to the earlier provisions of these orders;
(b) the travelling party will give the other party not less than twenty eight days written notice of the proposed travel;
(c) the travelling party will furnish to the other party an accurate daily itinerary not less than fourteen days prior to the scheduled departure including:
(i) the departure date and return date;
(ii) the country or countries the travelling party and the child will be travelling to;
(iii) the approximate dates on which the child will arrive and depart each country; and
(iv) a copy of the return airline tickets and a telephone number and address at which the travelling party and the child can be contacted in each country at each overnight location;
(d) that the parties be restrained from taking the child to a country which is not a signatory to the Convention on the Civil Aspects of International Child Abduction 1980 without the written consent of the other party;
(e) while the child is out of Australia with the travelling party, the travelling party shall ensure that the other party is able to have contact with the child by telephone or webcam or video conference not less than once per week; and
(f) where the mother is travelling with the child, she will return the child’s passport to the father within seven days of the child’s return to Australia and both parties shall sign a document acknowledging the exchange of the passports back to the father.
32.
Each party shall notify the other by, not more than twenty four hours after any change to their address and/or landline and/or mobile telephone numbers and/or their email address.
IT IS FURTHER ORDERED THAT
33.
All extant applications with the exception of any costs application be otherwise dismissed and the matter be removed from the list of pending cases.
34.
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.
IT IS DIRECTED THAT
All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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