FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOPKIRK & HOPKIRK | [2009] FMCAfam 1162 |
| FAMILY LAW – Parenting – child not quite three years old – amount of time with father – whether graduated regime appropriate. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Astor & Astor (2007) FamCA 355 Pilcher & Schneider (2008) FMCAfam 1092 Trinder & Chiswick (2009) FamCA 729 |
| Applicant: | MR HOPKIRK |
| Respondent: | MS HOPKIRK |
| File Number: | MLC 7678 of 2008 |
| Judgment of: | Riley FM |
| Hearing dates: | 10, 11 & 12 August 2009 |
| Date of Last Submission: | 4 September 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 3 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | R Stoikovska |
| Solicitors for the Respondent: | Marshalls & Dent |
ORDERS
All previous parenting orders be discharged.
ORDER BY CONSENT
The mother and father have equal shared parental responsibility for [X] born [in] 2006 (“[X]”).
ORDERS
Pursuant to section 13C(1)(a) of the Family Law Act 1975, the parents attend therapeutic family counselling to deal with their issues relating to the care of [X], and in particular:
(a)their difficulties in communicating with each other about matters concerning [X]; and
(b)their difficulties in cooperating with each other about matters concerning [X].
The family counselling occur at an organisation nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia.
The parties attend counselling at such times as are directed by the therapeutic counsellor.
Each party attend such individual counselling as the therapeutic counsellor recommends at such times and at such places as the recommended individual counsellor directs.
Each parent pay for their own individual counselling and for half of the joint therapeutic counselling.
Until 1 January 2012:
(a)[X] live with her mother;
(b)[X] spend time with her father:
(i)from 5.00pm Saturday to 6.00pm Monday each alternate week;
(ii)from 7.30am to 6.00pm Monday in the other week; and
(iii)from 7.30am Thursday to 7.30am Friday each week; or
(iv)as otherwise agreed by the parents.
From 1 January 2012 until 31 December 2012:
(a)[X] live with her mother;
(b)[X] spend time with her father:
(i)from 3.30pm each alternate Thursday to 6.00pm the following Sunday; and
(ii)from 3.30pm each alternate Thursday to 9.00am the following Friday;
(c)[X] spend half school holidays with each parent by agreement and, in default of agreement, from the end of school until the midpoint of the holidays with the mother in odd numbered years and with the father in even numbered years; or
(d)as otherwise agreed by the parents.
From 1 January 2013:
(a)[X] live with her mother;
(b)[X] spend time with her father:
(i)from 3.30pm each alternate Thursday to 9.00am the following Monday; and
(ii)from 3.30pm each alternate Thursday to 9.00am the following Friday;
(c)[X] spend half school holidays with each parent by agreement and, in default of agreement, from the end of school until the midpoint of the holidays with the mother in odd numbered years and with the father in even numbered years; or
(d)as otherwise agreed by the…
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- Case
- [2009] FMCAfam 1162
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining an arrangement that would provide stability and continuity in X's life while addressing the parents' difficulties in communicating and cooperating. The court had to consider the best interests of X, ensuring that both parents could maintain a meaningful relationship with their child despite the challenges. Additionally, the court needed to outline a therapeutic approach to assist the parents in improving their interactions and decision-making processes concerning X.
The court ruled that both parents would have equal shared parental responsibility for X. It mandated that the parents attend therapeutic family counselling to address their communication and cooperation issues, particularly concerning X. The court also specified detailed parenting arrangements, including residential schedules, special occasion celebrations, and holiday arrangements. Furthermore, the court imposed strict communication protocols, including the use of a communication book and restrictions on discussions about the orders or future care arrangements in the presence of X. The court also directed that both parents be readily contactable and restrained them from harassing or threatening each other in the presence of X. The orders included provisions for the parents to provide necessary documentation for X’s passport and to notify each other of any changes in contact details or residence. The court further empowered law enforcement to enforce the orders, including placing X's name on the airport watch list.
Orders
Orders of the court
1.
All previous parenting orders be discharged.
ORDER BY CONSENT
2.
The mother and father have equal shared parental responsibility for [X] born [in] 2006 (“[X]”).
ORDERS
3.
Pursuant to section 13C(1)(a) of the Family Law Act 1975, the parents attend therapeutic family counselling to deal with their issues relating to the care of [X], and in particular:
(a) their difficulties in communicating with each other about matters concerning [X]; and
(b) their difficulties in cooperating with each other about matters concerning [X].
4.
The family counselling occur at an organisation nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia.
5.
The parties attend counselling at such times as are directed by the therapeutic counsellor.
6.
Each party attend such individual counselling as the therapeutic counsellor recommends at such times and at such places as the recommended individual counsellor directs.
7.
Each parent pay for their own individual counselling and for half of the joint therapeutic counselling.
8.
Until 1 January 2012:
(a) [X] live with her mother;
(b) [X] spend time with her father:
(i) from 5.00pm Saturday to 6.00pm Monday each alternate week;
(ii) from 7.30am to 6.00pm Monday in the other week; and
(iii) from 7.30am Thursday to 7.30am Friday each week; or
(iv) as otherwise agreed by the parents.
9.
From 1 January 2012 until 31 December 2012:
(a) [X] live with her mother;
(b) [X] spend time with her father:
(i) from 3.30pm each alternate Thursday to 6.00pm the following Sunday; and
(ii) from 3.30pm each alternate Thursday to 9.00am the following Friday;
(c) [X] spend half school holidays with each parent by agreement and, in default of agreement, from the end of school until the midpoint of the holidays with the mother in odd numbered years and with the father in even numbered years; or
(d) as otherwise agreed by the parents.
10.
From 1 January 2013:
(a) [X] live with her mother;
(b) [X] spend time with her father:
(i) from 3.30pm each alternate Thursday to 9.00am the following Monday; and
(ii) from 3.30pm each alternate Thursday to 9.00am the following Friday;
(c) [X] spend half school holidays with each parent by agreement and, in default of agreement, from the end of school until the midpoint of the holidays with the mother in odd numbered years and with the father in even numbered years; or
(d) as otherwise agreed by the parents.
11.
Notwithstanding the foregoing:
(a) for the purposes of celebrating [X]’s birthday:
(i) in 2009 and alternate years thereafter, [X] spend from 8.00am until 6.00pm (subject to any kindergarten/school attendances) on her birthday with her mother;
(ii) in 2010 and alternate years thereafter, [X] spend from 8.00am until 6.00pm (subject to any kindergarten/school attendances) on her birthday with her father;
(b) for the purposes of celebrating either the father’s or the mother’s birthdays, [X] shall spend time with the parent on their birthday from 8.00am until 6.00pm (subject to any kindergarten/school attendances);
(c) for the purposes of celebrating Christmas:
(i) in 2009 and alternate years thereafter, [X] spend from 9.00am Christmas Eve until 9.00am Christmas Day with the father and from 9.00am Christmas Day until 9.00am Boxing Day with the mother;
(ii) in 2010 and alternate years thereafter, [X] spend from 9.00am Christmas Eve until 9.00am Christmas Day with the mother and from 9.00am Christmas Day until 9.00am Boxing Day with the father;
(d) for the purposes of celebrating Mother’s Day, [X] spend time with the mother from 6.00pm on the Saturday preceding Mother’s Day until 6.00pm on Mother’s Day;
(e) for the purposes of celebrating Father’s Day, [X] shall spend time with the father from 6.00pm on the Saturday preceding Father’s Day until 6.00pm on Father’s Day.
12.
Notwithstanding the foregoing:
(a) when [X] is three years old, she may spend three holidays of five days each with each of her parents at times to be agreed and in default of agreement:
(i) with the father for five days commencing at 6.00pm on the Friday before the first Saturday that [X] would be due to spend with her father during the Victorian school term holidays; and
(ii) with the mother for five days commencing at 6.00pm on the Monday during the Victorian school term holidays that [X] will not be on holiday with her father; and
(b) when [X] is four years old, she may spend three holidays of seven days each with each of her parents at times to be agreed and in default of agreement:
(i) with the father for seven days commencing at 6.00pm on the Friday before the first Saturday that [X] would be due to spend with her father during the Victorian school term holidays; and
(ii) with the mother for seven days commencing at 6.00pm on the previous or subsequent Friday such that [X] will be on holiday with her mother during the other week of the Victorian school term holidays.
13.
Changeover occur at [X]'s child care or school where practicable and otherwise at the father's home unless he moves more than five kilometres from his current address when changeovers not at [X]’s childcare or school are to occur at the mother’s home.
14.
If [X] will not be spending a night at a parent’s home, the relevant parent notify the other in writing seven days in advance of:
(a) the address and contact details of the place where [X] will be staying;
(b) the details of the flight or other means of transportation to the place where [X] will be staying.
15.
If [X] is to be away from a parent for more than seven days, the other parent is to ensure that [X] speaks to the first parent by telephone at least once each week.
16.
The mother within seven days ensure that [X]’s passport is delivered to the Registrar of this court who is requested to hold [X]’s passport until further order.
17.
Until further order, the father and his servants and agents are restrained from removing or attempting to remove [X] from the Commonwealth of Australia.
18.
Until further order, the mother and her servants and agents are restrained from removing or attempting to remove [X] from the Commonwealth of Australia.
19.
The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain [X]’s name on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain [X]’s name on the airport watch list until further order of the court.
20.
The father, at the request of the mother, from time to time, sign all necessary documents to enable [X] to have a valid Australian passport.
21.
Except for the purposes of changeover in accordance with order 13 hereof, the father be restrained from knowingly being within 100 metres of the mother’s home without her prior consent in writing.
22.
The father and the mother consult each other prior to enrolling [X] in any organised activity during the time [X] spends with them.
23.
If a parent thereafter enrols [X] into an organised activity, such parent provide the other parent with all contact information, confirmation of enrolment and dates and times for the activity, and ensure the other parent is fully apprised of all the activities [X] is undertaking with each parent from time to time.
24.
Save for in emergencies, both parents continue to facilitate [X] attending [surgery omitted], for all general practitioner consultations.
25.
[X]’s immunisation books and any other medical records remain in the possession of the mother and the mother continue to be responsible for arranging all of [X]’s immunisations, maternal and child health check ups and any other routine medical appointments.
26.
For the purposes of this process, the mother is to arrange all such appointments and thereafter she is to promptly notify the father of the appointment details.
27.
The father is at liberty to attend the arranged appointments with the mother and [X] should he wish to do so.
28.
In the event that [X] requires medical care or becomes seriously ill or injured whilst in the care of either parent, such parent shall ensure the other parent is notified forthwith and facilitate the other parent communicating with [X]’s treating health provider.
29.
Unless the parties otherwise agree, [X] be enrolled in [T] Childcare kindergarten and she commence attending 3 year old kindergarten at the commencement of Term 1, 2010.
30.
The father and the mother be at liberty to provide a copy of these orders to the manager or principal of any childcare centre, kindergarten or school attended by [X] from time to time.
31.
Subject to the discretion of the manger or principal, and subject to each parent being responsible for meeting any associated costs, the father and the mother be at liberty to:
(a) receive copies of all childcare/kindergarten/school reports, notices, newsletters and like correspondence customarily provided to parents; and
(b) attend all childcare/kindergarten/school concerts, functions, parent teacher interviews and any other events customarily attended by parents.
32.
Until such time as the parents otherwise agree in writing, the parents are to continue using a communication book for the purposes of communicating brief factual messages in respect of the issues concerning [X]’s care, welfare and development.
33.
The communication book is to be passed over with [X] at changeover and the communication is to include, but not be limited to, details of the following:
(a) the sleep that [X] had that day;
(b) the meals [X] has had and when they last occurred;
(c) any special child activity [X] has undertaken during her time with each parent;
(d) details of any symptoms if a parent suspects [X] may be unwell; and
(e) toilet training progress notes.
34.
In the event that either parent moves residence or his or her contact details vary, that parent forthwith notify the other parent in writing (when practicable at least 14 days prior to the change occurring) of any variation to his or her residential address, mobile telephone number or email address.
35.
The father and the mother each be readily contactable to the other parent, by ensuring his or her mobile telephone remains charged where practicable and promptly returning any messages that may be left by the other parent from time to time.
36.
The father, the mother and his and her servants and agents are restrained from:
(a) harassing, verbally abusing, denigrating or threatening the other parent; and
(b) discussing the making of these orders or future care arrangements for [X];
in the sight, hearing or presence of [X].
AND THE COURT NOTES THAT:
Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.
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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