FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HALE & HALE (No.2) | [2009] FMCAfam 873 |
| FAMILY LAW – Final arrangements for parenting of children aged 12 and 9 – children currently live in Adelaide with the mother – father lives in country NSW – parties separated in 2002 – orders made in 2004 permitting children to relocate from Adelaide and inaugurating regime for children to spend time with father in NSW during school holidays – arrangements in respect of oldest child broke down in 2007 – mother alleges child unwilling to spend time with father due to concerns about his household – father asserts mother has consistently undermined the children’s level of relationship with him – father asserts only means by which children will have a meaningful relationship with him is if there is a change in residence arrangements – father asserts mother intent on alienating children from him – mother asserts children well settled in Adelaide – best interests – views of children – insight into parental obligations – effect of change of circumstances – possible separation of siblings – equal shared parental responsibility – duty to exchange information – implication of parties’ compromised capacity to communicate. |
| Family Law Act 1975, ss.60B; 60CA; 60CC; 61B; 61DA; 65DAA; 65DAC; 65DAE; 68LA |
| Hale & Hale CAF1638 of 2002 C & C [2004] Fam CA 708 R & R: Children’s Wishes (1999) 25 Fam LR 712 |
| Applicant: | MS HALE |
| Respondent: | MR HALE |
| File Number: | ADC 3419 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 6, 7, 8, 28 & 29 May; 29 June & 3 July 2009 |
| Date of Last Submission: | 3 July 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 21 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kane |
| Solicitors for the Applicant: | Erlington Boardman Allport |
| Counsel for the Respondent: | Ms Lewis |
| Solicitors for the Respondent: | Lessli Strong & Associates |
| Counsel for the Independent Children’s Lawyer: | Mr Boehm |
| Solicitors for the Independent Children’s Lawyer : | Legal Services Commission |
ORDERS
The parties have equal shared parental responsibility for the children [X] born in 1996, [Y] and [Z] both born in 1999 (hereinafter referred to as “the children”).
The parties are to consult with one another about major long term issues pertaining to the children and are required to make a genuine effort to come to a joint decision about such matters, which include but are not limited to educational and medical issues pertaining to the children; cultural and religious issues pertaining to the children; the changing of the children’s names; changing the school enrolments of any of the children; and the relocation of the residence of the children so as to impinge upon the existing parenting arrangements for the children.
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- AGLC
- Hale and Hale (No.2) [2009] FMCAfam 873
- Case
- [2009] FMCAfam 873
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included establishing the shared parental responsibility between the parties, determining the specific time-sharing arrangements for the children, and assessing the necessity for counselling to address the impact of the mother's behaviour on the children and their relationships with the father and his partner. The court had to balance the rights of both parents with the welfare and best interests of the children, considering factors such as the children's emotional and psychological needs, the level of conflict between the parents, and the potential for ongoing parental alienation.
The court's reasoning was grounded in the principles of the Family Law Act, which prioritises the best interests of the child as the paramount consideration. The court found that equal shared parental responsibility was appropriate, given the ability of both parents to contribute to the children's welfare. The detailed time-sharing arrangements were designed to provide the children with regular contact with their father, taking into account the geographical distance and the need for stability in their lives. The court also emphasised the importance of addressing the mother's negative influence and the children's exposure to ongoing conflict, by mandating counselling for both the mother and the children. The appointment of an ICL was deemed necessary to advocate for the children's interests and ensure that the court's orders were effectively implemented.
The final orders of the court reflect a comprehensive approach to resolving the parenting dispute, aiming to foster a healthy and supportive environment for the children. The court's decision ensures that both parents have equal responsibility for the children's welfare, while also providing mechanisms to mitigate the impact of parental conflict on the children's emotional well-being. The requirement for counselling and the detailed time-sharing arrangements are intended to facilitate the children's ongoing relationship with their father and promote their overall development and stability.
Orders
Orders of the court
1.
The parties have equal shared parental responsibility for the children [X] born in 1996, [Y] and [Z] both born in 1999 (hereinafter referred to as “the children”).
2.
The parties are to consult with one another about major long term issues pertaining to the children and are required to make a genuine effort to come to a joint decision about such matters, which include but are not limited to educational and medical issues pertaining to the children; cultural and religious issues pertaining to the children; the changing of the children’s names; changing the school enrolments of any of the children; and the relocation of the residence of the children so as to impinge upon the existing parenting arrangements for the children.
3.
The children live with the mother.
4.
The father spend time with the children as follows:
(a) So far as [Z] and [Y] are concerned for the whole of the three shorter South Australian school holiday in each year term holidays and for one half of the long end of year South Australian school holiday being the first half in each even ending year and the second half in each odd ending year (unless the parents agree otherwise);
(b) So far as [Z] and [Y] are concerned at any reasonable time when the father visits Adelaide subject to him giving two weeks notice of his visit to the mother;
(c) So far as [X] is concerned at any of the times during which [Z] and [Y] are spending time with their father subject to her wishes and upon completion of New South Wales Police investigations regarding allegations raised by her in respect of conduct occurring in her father’s household; and
(d) At any other times and on any other conditions as agreed between the parties from time to time.
5.
The father communicate with the [Z] and [Y] by telephone each Sunday and Tuesday at 7:30pm (South Australian time) with the father to place the call and the mother to ensure that the children are available to receive the call.
6.
The father communicate with the child [X] by telephone at times agreed between the father and [X] and subject to her wishes.
7.
The father may communicate with the children at all reasonable times in writing by letter or email.
8.
That the mother undertake counselling with an approved counselling agency such as Anglicare, Centrecare or Relationships Australia or with a registered Psychologist or Psychiatrist with an aim to address and fully understand the impact of her behaviour, her negative attitude and her negative influence upon the children and directed towards their father and his partner Ms H and her attempts to undermine and sabotage the children continuing any meaningful and ongoing relationship with their father and for the mother to be provided with alternate strategies to better support and promote the children’s continuing relationship with their father and further for the mother to be provided with alternate strategies to assist and redirect the child [X] with respect to her negative attitude towards and her limited relationship with her father.
9.
That the mother undertake such counselling forthwith and provide written notification to the father and the ICL as to the name of the person with whom she is undertaking counselling.
10.
That the mother attend such appointments with the counsellor as may be recommended by the counsellor from time to time.
11.
That the said children [Y] and [Z] undertake confidential and individual counselling to provide support for the children with respect to maintaining a long distance relationship with their father and to provide the children with strategies to deal with any difficulties they may experience in both parents’ households, the high level of conflict between their parent and specifically their mother and their sister [X]’s negative attitude and influence over them with respect to their father and their father’s household and with an aim to promote the children’s ongoing and meaningful relationship with their father.
12.
That the costs of the individual and confidential counselling for the said children [Y] and [Z] be shared equally between the parties.
13.
That each parent shall be at liberty to and encourage to keep in regular contact with any counsellor appointed to assist the children and to provide wherever possible information in relation to living arrangements for the said children without compromising the confidential and individual nature of the said counselling sessions.
14.
That the appointment of the Independent Children's Lawyer (the ICL) be discharged following the expiration of one year from the date of judgment in this matter.
15.
That the ICL be at liberty to consult with the counsellor regarding progress with the mother’s counselling.
16.
That the ICL provide to the mother’s counsellor a copy of the Court’s judgment in this matter and associated orders.
17.
That each party pay one half of the additional costs of the ICL (as advised by the ICL in writing) no later than 28 days following judgment in the matter.
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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