FAMILY COURT OF AUSTRALIA
| HOWARD & HOWARD | [2016] FamCA 455 |
| FAMILY LAW – CHILDREN – RELOCATION – Parenting Orders – Where the mother wishes to relocate to the UK – Where there is no unacceptable risk of harm – Where neither party assets that family violence should mean the presumption of equal shared parental responsibility is displaced – Where the mothers parenting capacity would not be adversely affected if she were not permitted to relocate – Where fathers relationship with the children would be dramatically diminished – Where father wants equal shared parental responsibility – Where mother accepts father would not relocate – Where the children’s views are given little weight due to their cognitive capacity – Where neither the mother nor father have the capacity to fund regular travel between the two countries – Where difficult circumstances would arise if relation was permitted given the time difference and using Skype – where there is no order for relocation – where there is an order for equal shared parental responsibility |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC |
| Banks & Banks [2015] FamCAFC 36 Malcolm v Munro (2011) FLC 93-460 Mauldera & Orbel (2014) FLC 93-602 Morgan & Miles (2007) FLC 93-343 S v Australian Crime Commission (2005) 144 FCR 431 Wacando v The Commonwealth (1981) 148 CLR 1 |
| APPLICANT: | Mr Howard |
| RESPONDENT: | Ms Howard |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Wright |
| FILE NUMBER: | CSC | 494 | of | 2015 |
| DATE DELIVERED: | 8 June 2016 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 20 and 21 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Betts |
| SOLICITORS FOR THE APPLICANT: | Newman Family Law |
| SOLICITORS FOR THE RESPONDENT: | Sandra Sinclair Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Lawrence |
| SOLICITORS FOR THE RESPONDENT: | Murray Lyons |
Orders
Prior Orders:
That all previous parenting orders be forthwith discharged.
Parental responsibility and related orders:
That the parents have equal shared parental responsibility for the major long-term issues of the children B (born …, 2005) and C (born …, 2007).
That in the exercise of their equal shared parental responsibility pursuant to paragraph 2 of these orders:
(a)the parents will consult with each other in relation to any major long-term issues for the children that may arise. The consultation is to occur in writing if a parent requests it;
(b)the parents will act reasonably and will use their best endeavours to reach agreement;
(c)the parents will attend family dispute resolution in the event that they are unable to reach agreement.
These orders authorise the children’s schools to provide to each parent (at that parent’s expense) any and all information about the children’s educational progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child and other school communications ordinarily provided by the school/s to parents.
These orders authorise each of the children’s medical practitioners (including allied health practitioners such as counsellors and psychologists) to provide to each parent (at that parent’s expense) information about…
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- Howard & Howard [2016] FamCA 455
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- [2016] FamCA 455
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CaseChat Overview and Summary
The court was required to determine the specific terms of parental responsibility, including how major long-term issues would be managed and how parents would consult and reach agreement. Further issues included the detailed schedule for the children's living arrangements during school terms and holidays, including specific provisions for end-of-term breaks, Christmas holidays, and the children's birthdays. The court also had to address communication between parents and children, arrangements for overseas travel, the holding of passports, and the allocation of costs for extra-curricular activities.
Tree J ordered that the parents have equal shared parental responsibility for major long-term issues, requiring them to consult in writing if requested, act reasonably to reach agreement, and attend family dispute resolution if agreement could not be reached. The orders detailed a complex schedule for the children's living arrangements, transitioning from a fortnightly equal time arrangement to an alternating weekly schedule during school terms. Specific provisions were made for school holidays, including end-of-term breaks, Christmas, and the children's birthdays, with some variations depending on the year and whether the mother travelled overseas. The court also imposed restraints on parents speaking negatively about each other or behaving confrontationally at changeovers, and set out detailed rules for overseas travel, including notification and communication requirements. Passports were to be held at the Family Law Registry in Cairns and released only shortly before travel. The father was ordered to solely meet the costs of one agreed extra-curricular activity per child per year. The Independent Children's Lawyer was discharged, and all extant applications were dismissed.
Orders
Orders of the court
Prior Orders:
1.
That all previous parenting orders be forthwith discharged.
Parental responsibility and related orders:
2.
That the parents have equal shared parental responsibility for the major long-term issues of the children B (born …, 2005) and C (born …, 2007).
3.
That in the exercise of their equal shared parental responsibility pursuant to paragraph 2 of these orders:
(a) the parents will consult with each other in relation to any major long-term issues for the children that may arise. The consultation is to occur in writing if a parent requests it;
(b) the parents will act reasonably and will use their best endeavours to reach agreement;
(c) the parents will attend family dispute resolution in the event that they are unable to reach agreement.
4.
These orders authorise the children’s schools to provide to each parent (at that parent’s expense) any and all information about the children’s educational progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child and other school communications ordinarily provided by the school/s to parents.
5.
These orders authorise each of the children’s medical practitioners (including allied health practitioners such as counsellors and psychologists) to provide to each parent (at that parent’s expense) information about the children’s medical condition, treatment and copies of medical records and reports.
6.
Each parent will ensure that a certified copy of these orders is provided to:
(a) any school/s attended by the children;
(b) the children’s usual General Practitioner.
7.
The parents are to keep each other informed of their respective contact addresses, telephone numbers, mobile telephone numbers or e-mail addresses and notify the other within forty-eight (48) hours to any changes to same.
Children’s living arrangements during school terms:
8.
That for the three months immediately following these orders, the children are to spend equal time with each parent in each fortnight, according to a 4 nights with the mother and 3 nights with the father, 3 nights with the mother, 4 nights with the father regime, with changeovers on school days to occur at the conclusion of school, but otherwise at the Suburb E Shopping Centre, or at some other public place in the D Town area as may be agreed in writing.
9.
That thereafter during school terms, the children live with the parents on an alternating weekly basis with the changeover to occur at 3.00 pm Friday of each week at the children’s school/s.
End of term 1 and end of term 3 school holiday periods:
10.
During the end of term 1 and end of term 3 school holiday periods:
(a) in even numbered years, the children will spend the first half of the holiday period with the mother and the second half with the father;
(b) in odd numbered years, the children will spend the first half of the holiday period with the father and the second half with the mother.
11.
For the purposes of paragraph10 of these orders:
(a) the end of term 1 and end of term 3 school holiday periods are deemed to commence at the conclusion of school on the last day of term 1 or term 3 respectively, that the children are required to physically attend at school;
(b) the mid-point of the end of term 1 holidays and the end of term 3 holidays is deemed to be 6pm on the middle Saturday of the holidays;
(c) the holidays are deemed to end at the commencement of the first day of term 2 or term 4 that the children are required to physically attend school.
End of term 2 school holiday periods:
12.
The children will spend the whole of the end of term 2 school holiday period in each year with the father.
13.
For the purposes of paragraph 12 of these orders, the end of term 2 school holiday period is deemed to commence at the conclusion of school on the last day of term 2 and is deemed to end at the commencement of the first day of term 3 that the children are required to physically attend school.
Christmas school holiday periods:
14.
If the Mother intends travelling overseas with the children, she shall give the Father written notice on or before 1 October each year, then the following shall apply:
(a) In even numbered years, the children will spend time with the father for the first and last weeks of the school holiday period, excluding Christmas Day. The children will otherwise spend time with the mother for the balance of the school holiday period.
(b) In odd numbered years, the children will spend time with the father from after school on the last day of term until 9am on Boxing Day. The children will otherwise spend time with the mother for the balance of the school holiday period.
15.
If the Mother does not give such notice on or before 1 October, then the following shall apply:-
(a) The children shall spend week about with each parent with the changeover to occur at 6.00pm each Saturday;
(b) Notwithstanding above, the children shall spend from 11.00am Christmas Eve to 11.00am Christmas Day with the Father and 11.00am Christmas Day to 11.00am Boxing Day with the Mother in even numbered years and from 11.00am Christmas Eve to 11.00am Christmas Day with the Mother and 11.00am Christmas Day to 11.00am Boxing Day with the Father in odd numbered years.
Children’s living arrangements on special occasions:
16.
If pursuant to these orders the mother would not have the children on the Mother’s Day weekend, then the children will spend Mother’s Day with the mother, from 9am on Mother’s Day until commencement of school Monday.
17.
If pursuant to these orders the father would not have the children on the Father’s Day weekend, then the children will spend Father’s Day with the father, from 9am on Father’s Day until commencement of school Monday.
18.
If pursuant to these orders the father would not spend time with the children on the father’s birthday, then the children will spend time with the father on his birthday:
(a) if a school day, then from after school that day until commencement of school the following day (or 9am if the following day is weekend);
(b) if a non-school day, then from 9am that day until 9am the following day (or commencement of school if the following day is a school day).
19.
If pursuant to these Orders, the Mother would not spend time with the children on the Mother’s birthday, then the children will spend time with the Mother on her birthday from 9.00am that day until 9.00am the following day.
(NOTING that the Mother’s birthday falls on …., which will always be a non-school day, and NOTING that if the Mother travels overseas with the children over Christmas then she will have the children for her birthday in any event.)
20.
If pursuant to these orders a parent would not spend time with the children on one of the children’s birthdays, then the children will spend time with that parent on the child’s birthday:
(a) if a school day, then from after school until 7pm;
(b) if a non-school day, then from 1pm until 7pm.
Telephone and electronic communication:
21.
The children will communicate with the parents by telephone (or by other forms of electronic communication if available) as follows:
(a) the parent who has the children in their care is to provide the children with the use of a telephone so that the children can speak with the other parent on up to two (2) occasions per week for no longer than fifteen (15) minutes duration each child.
Changeovers:
22.
That changeovers for the children are to occur at:
(a) the children’s schools whenever changeovers are at the commencement or conclusion of school; or
(b) in any other case, at Suburb E Shopping Centre or at some other public place in the D Town area as agreed in writing.
Restraints:
23.
Whilst in the presence or hearing of the children, the parents are restrained from speaking, or allowing the children to remain in the presence of someone else who is speaking, in a negative, offensive, or disrespectful manner towards:
(a) the other parent or a member of his/her family; or
(b) the other parent’s partner or a member of his/her family
24.
At changeovers, the parents are restrained from behaving in an aggressive, confrontational or argumentative way towards:
(a) the other parent; or
(b) any other person who is in the company of the other parent.
25.
The parents are restrained from removing the children, or attempting to remove the children, from the Commonwealth of Australia otherwise than in accordance with paragraphs 26 and 27 of these orders.
Overseas travel with the children:
26.
Each parent may travel overseas with the children during times that that parent has the children pursuant to these orders, or during such other times that the parties may agree to in writing.
27.
For the purposes of overseas travel with the children:
(a) the travelling parent will meet the costs of and incidental to such travel personally;
(b) the travelling parent is to provide the other party with a copy of the children’s itinerary including departure dates and return dates prior to the children’s departure;
(c) the travelling parent will keep the other party advised as to all contact details including telephone numbers, addresses and e-mail addresses during such travel;
(d) during any absence from Australia that the travelling parent will be responsible for ensuring the children have telephone/skype contact with the other party no less than twice per week at the cost of the travelling parent.
Passports for the children:
28.
That the parents ensure that the children have valid passports at all times, with both parents to complete all necessary application forms and the costs of same to be shared equally.
29.
That the children’s passports be held at the Family Law Registry in Cairns, or at some other institution as agreed in writing, with such passports to be:
(a) released to the travelling parent no earlier than seven (7) days before the commencement of travel;
(b) returned by the travelling parent to the Family Law Registry in Cairns, or at the other institution as agreed in writing, no later than seven (7) days after the children’s return to D Town.
Extra-curricular activities for the children:
30.
In addition to payment of any child support as administratively assessed, the Father will solely meet the costs of one agreed extra-curricular activity per child per year, NOTING that the parties have been sharing equally in the cost of the children’s extra-curricular activities since separation.
Other orders
31.
The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
32.
Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.
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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