FAMILY COURT OF AUSTRALIA
| HARDIE & CAPRIS | [2010] FamCA 1046 |
| FAMILY LAW – CHILDREN – Final parenting orders – With whom a child should live – Relocation – Where the mother sought to relocate the child from Queensland to South Australia – Best interests of the child – Where the ultimate conclusion about the child’s “best interests” will be a “least worst” determination – Discussion of the Primary and Additional Considerations |
| Evidence Act 1995 (Cth) s 144 Family Law Act 1975 (Cth) ss 4; 60B(1); 60B(2); 60CC; 60CA; 60CB; 61DA(1); 61DA(4); 65DAA; 65DAC; 65DAE |
| Brown v Dunn (1893) 6 R 67 (HL) Carlson and Ors & Bowden [2010] FamCA 432 |
| APPLICANT: | Ms Hardie |
| RESPONDENT: | Mr Capri |
| FILE NUMBER: | BRC | 9475 | of | 2008 |
| DATE DELIVERED: | 23 November 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 10 & 11 November 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Baston |
| SOLICITOR FOR THE APPLICANT: | Cooper Grace Ward of Brisbane |
| COUNSEL FOR THE RESPONDENT: | Dr Sayers |
| SOLICITOR FOR THE RESPONDENT: | Harrington Family Lawyers of Brisbane |
Orders
The child, E born … March 2002, live with the father.
The father have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) in respect of the child, save that the father shall, prior to making the sole ultimate decision about any such issues:
(a)advise the mother in writing of the decision being considered and its particulars,
(b)Seek a written response from the mother in relation thereto, permitting of sufficient time to allow the mother to properly consider, and if she desires, to seek advice about the proposed decision;
(c)Consider, by reference to the best interests of the child, any such response by the mother, prior to making any such decision;
(d)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
The child spend time with the mother at all times as may be agreed by the parties and failing agreement, at the times specified as follows:
During Queensland gazetted school holidays
(a)For end of Term 1 holidays, for 7 days with the child to fly in accordance with paragraphs 5 and 6 of these Orders, on the last day of the school term until 6pm on the 7th day after the end of the school term;
(b)For end of each of Term 2 and Term…
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- Hardie & Capris [2010] FamCA 1046
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- [2010] FamCA 1046
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CaseChat Overview and Summary
The court was required to determine the primary residence of the child, the allocation of parental responsibility for major long-term issues, and the detailed schedule for E's time with each parent. Further issues included the method and cost of travel arrangements between parents, the child's liberty to communicate with each parent and extended families, and the procedure for informing each parent of significant events concerning the child's health or education. The court also had to consider the equal sharing of costs for counselling and medical treatment.
Murphy J ordered that the child, E, live with the father and that the father have sole parental responsibility for all major long-term issues, subject to specific procedural requirements for consultation with the mother. The court then set out detailed provisions for E's time with the mother, including during school holidays and long weekends, and outlined arrangements for special occasions such as birthdays. The orders also stipulated that the mother would book and pay for flights from Brisbane to Adelaide, and the father would book and pay for flights from Adelaide to Brisbane, with specific requirements for notification and compliance with airline policies for unaccompanied minors. Provisions were also made for E's communication with both parents and their respective families, and for the prompt notification of any serious accident or medical condition. The court further ordered that the father take E to counselling as recommended, with costs to be shared equally, and that both parents be provided with information regarding E's extracurricular activities. All previous orders were discharged, and applications were dismissed.
Orders
Orders of the court
1.
The child, E born … March 2002, live with the father.
2.
The father have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) in respect of the child, save that the father shall, prior to making the sole ultimate decision about any such issues:
(a) advise the mother in writing of the decision being considered and its particulars,
(b) Seek a written response from the mother in relation thereto, permitting of sufficient time to allow the mother to properly consider, and if she desires, to seek advice about the proposed decision;
(c) Consider, by reference to the best interests of the child, any such response by the mother, prior to making any such decision;
(d) Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
3.
The child spend time with the mother at all times as may be agreed by the parties and failing agreement, at the times specified as follows:
During Queensland gazetted school holidays
(a) For end of Term 1 holidays, for 7 days with the child to fly in accordance with paragraphs 5 and 6 of these Orders, on the last day of the school term until 6pm on the 7th day after the end of the school term;
(b) For end of each of Term 2 and Term 3 holidays, for 11 days with the child to fly in accordance with paragraphs 5 and 6 of these Orders, on the last day of the school term until 6.00pm on the 11th day after the end of the school term;
(i) For the first half of the Christmas school holidays in 2010 and all even-numbered years thereafter and the second half in 2011 and all odd-numbered years thereafter, with Christmas school holidays deemed as commencing at 9.00am on the first day of the school holiday period (not the last day of school) and shall conclude at 4.00pm on the second last day prior to the recommencement of school.
Long Weekends
(c) Having made flight arrangements in accordance with paragraphs 5 and 6 of these Orders, in addition as follows:
(i) Where Anzac Day falls on either a Friday or a Monday, from 4.00pm on the Wednesday prior to Anzac Day (where Anzac Day is a Friday) until 6.00pm on the following Sunday or from 4.00pm Friday until 6.00pm Tuesday where Anzac Day falls on the Monday;
(ii) On the weekend coinciding with the May Day (Qld) holiday, from 4.00pm Friday until 6.00pm Tuesday;
(iii) On the weekend coinciding with the Queen’s Birthday (Qld) holiday, from 4.00pm Friday until 6.00pm Tuesday;
(iv) Provided that there is a pupil free day on the day either immediately before or immediately after the Brisbane Exhibition public holiday, then from 4.00pm on the Saturday before the pupil free day until 6.00pm on the Exhibition public holiday or from 4.00pm on the Tuesday before the Exhibition public holiday until 6.00pm on the Saturday immediately following the Exhibition public holiday;
(v) Provided there is a pupil free day on a Monday or a Friday in October, then, from 4.00pm Friday until 6.00pm Tuesday where the pupil free day occurs on a Monday, or, from 4.00pm Wednesday until 6.00pm Sunday where the pupil free day occurs on a Friday in October;
Special Occasions
4.
In the event that the mother and father are living or visiting in the same city as the child, on special occasions, the child shall spend time with each parent as follows:
(a) That in the event that the child is not with the father on Father’s Day weekend then with the father from 5:00pm Saturday immediately prior to Father’s Day until the commencement of school on the day after Father’s Day;
(b) That in the event that the child is not with the mother on Mother’s Day weekend then with the mother from 5:00pm Saturday immediately prior to Mother’s Day until the commencement of school on the day after Mother’s Day;
(c) On the child’s birthday as follows:
(i) With the father in even numbered years from after school the day before the child’s birthday until the commencement of school on the day of the birthday;
(ii) With the father in odd numbered years from after school on the child’s birthday until before school on the day after the birthday;
(iii) With the mother in even numbered years from after school on the child’s birthday until before school on the day after the birthday;
(iv) With the mother in odd numbered years from after school the day before the child’s birthday until the commencement of school on the day of the birthday;
(v) In the event that the child’s birthday falls on a weekend the child shall spend time with the parent with whom she is not then living or visiting from mid-day until 5:00pm.
(d) On the father’s and D’s birthdays from after school, or from 2.00pm if a weekend, on the day of the father’s and on the day of D’s birthday until 9.00am the following day;
(e) On the mother’s, R’s and W’s birthday from after school, or from 2.00pm if a weekend, on the day of the mother’s and on the day of R’s birthday until 9.00am the following day;
Changeovers and Provision for Flights
5.
For the purposes of these Orders, the Mother shall book and pay for the child’s flights from Brisbane to Adelaide and the father shall book and pay for the child’s flights from Adelaide to Brisbane at least one month prior to the date of all such travel.
6.
In respect of the child’s flights to and from Adelaide, each of the parties shall:
(a) sign all such documents and follow all such procedures or policies as is required by the chosen airline in relation to "unaccompanied minors"; and
(b) provide to the other one month prior to the date of departure from Brisbane:
(i) the details of the dates and times of travel booked and paid for by each of them;
(ii) a copy of any documents that have to be completed in order to comply with airline policy on unaccompanied minors;
(iii) a copy of the ticket for the flight/s booked and paid for by each of them or sufficient information to authorise the Father to be able to collect the child's return ticket to and from Adelaide.
(c) Ensure that:
(i) the child is delivered to the relevant airport in sufficient time, in accordance with the relevant airline’s policies or requirements, to enable the child to board her flight/s and in the event that either party defaults in this regard, they shall do all things necessary, at their expense, to arrange an alternative timely flight.
Communication
7.
The child be at liberty to communicate with either parent and the child’s respective extended families at all such times as the child so desires, either by telephone or mail.
8.
In order to give effect to the preceding paragraph of these Orders:
(a) The parties shall maintain a telephone number at all times at which they can be contacted by the child and shall keep each other advised of same.
(b) Within 48 hours of the date of these orders, the Mother and Father shall advise each other of their current postal address and shall keep each other informed of any changes to their postal address within 48 hours of such change.
(c) The Mother and the Father shall ensure that any letters, cards or presents that the child wishes to be sent to the other parent are posted promptly to the other parent, and shall each similarly ensure that any cards, letters or presents to the child from the other parent are passed on to the child.
(d) The child be at liberty to communicate by email, Skype, Facebook, Twitter or other similar forms of computer communication, with the other parent not more than once a day in a session lasting not longer than 30 minutes.
(e) In order to give effect to the preceding paragraph of these Orders, the parties shall provide to each other, within 48 hours of their possessing same, an email address at which the child can receive and send emails to the other parent and details, such as are necessary, so as to facilitate the child communicating by Skype, Facebook, Twitter or similar, with each parent.
Miscellaneous Orders
9.
At the earliest possible time and where possible within one hour, each party shall inform the other party of any serious accident or medical condition requiring the child to be seen by a doctor.
10.
The father shall take the child to counselling with Ms B or such other counsellor and/or doctor or other therapist as may be recommended by Ms B from time to time, for as long as and at such times as may be recommended by Ms B or such doctor or other therapist.
11.
The parties shall bear equally the costs of the child's counselling or other medical treatment as recommended by Ms B or such doctor or other therapist.
12.
The father shall advise the mother of the contact details for any extracurricular activities that the child may be engaged in from time to time.
13.
The parties, by this order, authorise the child's school, medical practitioners, counsellors and extracurricular activities to advise or supply the requesting party with any relevant information or documents as may be requested from time to time provided that the requesting party shall be responsible for any costs and shall pay to the school, medical practitioners, counsellors and extracurricular activities directly for such costs.
14.
All previous orders be discharged and applications be dismissed.
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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