FEDERAL CIRCUIT COURT OF AUSTRALIA
| HULL & TORRANCE | [2017] FCCA 758 |
| Catchwords: FAMILY LAW – Parenting – allegations of risk with respect to both parents – allegations of family violence – children have been in father’s primary care after the Department of Health and Human Services removed the children from the mother’s care in 2013 – mother seeks children be returned to her primary care. |
| Legislation: Family Law Act 1975, ss.60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(3) |
| Cases cited: Friscioni & Friscioni [2010] FamCAFC 108 Re JRL; ex parte CJL (1986) 161 CLR 342 |
| Applicant: | MR HULL |
| Respondent: | MS TORRANCE |
| File Number: | MLC 5347 of 2015 |
| Judgment of: | Judge Harland |
| Hearing dates: | 27 & 28 February 2017, 1 & 2 March 2017 |
| Date of Last Submission: | 15 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 19 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Paul |
| Solicitors for the Applicant: | Hughes Watson Marks Kennedy |
| Counsel for the Respondent: | Ms Manderlet |
| Solicitors for the Respondent: | Cathleen Corridon & Associates |
| Counsel for the Independent Children's Lawyer: | Ms Dowler |
| Solicitors for the Independent Children's Lawyer: | Ebejer & Associates |
ORDERS
The father is to have sole parental responsibility for the children X born (omitted) 2008, Y born (omitted) 2010 and Z born (omitted) 2011 in relation to religious upbringing and education, but otherwise the parents are to have equal shared parental responsibility for the children.
Order (1) is conditional upon the following:
(a)The father shall contact the mother in writing and provide his views in relation to major long term issues about:
(i)The children’s education;
(ii)The children’s health;
(b)The father shall consult (via email unless otherwise agreed) with the mother with regard to any such issue;
(c)The father and mother will make a genuine effort to come to a joint decision, in writing, about any such issue; and
(d)If agreement is not reached between the parties within 7 days, the father shall make the final decision and advise the husband in writing of the decision about any such issue.
That the children live with the father.
The children spend time with the mother during school terms as follows:
(a)In week one from after school Friday until before school on Monday;
(b)In week two from after school Wednesday until before school Thursday.
That the children shall spend time with the mother as follows:
(a)In odd numbered years, for the first half of each school holiday period commencing from after school on the last day of school term until 5.00pm on the day calculated to be halfway point of the holiday period; and
(b)In even numbered years, for the second half of each school…
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- AGLC
- Hull and Torrance [2017] FCCA 758
- Case
- [2017] FCCA 758
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent to which parental responsibility should be shared equally between the parents, with specific consideration given to the religious upbringing and education of the children. Further issues included establishing the children's primary residence, defining the specific periods of time the children would spend with each parent, and outlining the communication protocols and information sharing requirements between the parents regarding the children's welfare, health, and education. The court also needed to address injunctions to prevent negative behaviour between the parents and to ensure the children's well-being.
Judge Harland ordered that the father would have sole parental responsibility for the children's religious upbringing and education, while equal shared parental responsibility would otherwise apply. These orders were made conditional on the father consulting with the mother in writing regarding major long-term issues concerning the children's education and health, with the father having the final decision-making power if agreement could not be reached within seven days. The children were ordered to live with the father, with specific, alternating time arrangements for the mother during school terms and holidays, including provisions for birthdays and Christmas. The court also made orders regarding communication, notification of illness, access to medical records, school involvement, and injunctions restraining the parents from denigrating each other or discussing proceedings in the children's presence, and from inflicting physical punishment.
Orders
Orders of the court
1.
The father is to have sole parental responsibility for the children X born (omitted) 2008, Y born (omitted) 2010 and Z born (omitted) 2011 in relation to religious upbringing and education, but otherwise the parents are to have equal shared parental responsibility for the children.
2.
Order (1) is conditional upon the following:
(a) The father shall contact the mother in writing and provide his views in relation to major long term issues about:
(i) The children’s education;
(ii) The children’s health;
(b) The father shall consult (via email unless otherwise agreed) with the mother with regard to any such issue;
(c) The father and mother will make a genuine effort to come to a joint decision, in writing, about any such issue; and
(d) If agreement is not reached between the parties within 7 days, the father shall make the final decision and advise the husband in writing of the decision about any such issue.
3.
That the children live with the father.
4.
The children spend time with the mother during school terms as follows:
(a) In week one from after school Friday until before school on Monday;
(b) In week two from after school Wednesday until before school Thursday.
5.
That the children shall spend time with the mother as follows:
(a) In odd numbered years, for the first half of each school holiday period commencing from after school on the last day of school term until 5.00pm on the day calculated to be halfway point of the holiday period; and
(b) In even numbered years, for the second half of each school holiday period commencing at 5.00pm on the day calculated to be the halfway point of the holiday period until before school on the first day of the following school term.
(c) On each of the children’s and the Mother’s birthdays from after school to 7.00pm if the birthday falls on a school day or from 9.00am to 3.00pm if the birthday does not fall on a school day, should the children not otherwise be spending time with the mother on such days in accordance with the Orders herein.
6.
Notwithstanding any Order herein, the Mother’s time with the children shall be suspended and the children shall remain in the care of the Father as follows:
(a) On each of the child’s and the Father’s birthdays from after school to 7.00pm if the birthday falls on a school day or from 9.00am to 3.00pm if the birthday does not fall on a school day, should the children not otherwise be spending time with the Mother on such days in accordance with the Orders herein.
7.
That notwithstanding any other order the mother shall have care of the children from 5.00pm on Christmas Eve until 5.00pm on Christmas Day in even numbered years and from 5.00pm on Christmas Day until 5.00pm Boxing Day in odd numbered years.
8.
That notwithstanding any other order the father shall have care of the children from 5.00pm on Christmas Eve until 5.00pm on Christmas Day in even odd numbered years and from 5.00pm on Christmas Day until 5.00pm Boxing day in even numbered years.
9.
In the event Mother’s Day falls on the father’s weekend the father’s time shall be suspended and the children will spend time with the mother from after school Friday until before school Monday.
10.
In the event Father’s Day falls on the mother’s weekend the mother’s time shall be suspended and the children will spend time with the father from after school Friday until before school Monday.
11.
That each party shall keep the other informed of his or her current residential address, email address and contact telephone numbers and advise the other of any change to these details in writing as soon as practicable and no later than within seven (7) days of such change taking place.
12.
That each party shall notify the other of any significant illness or medical condition suffered by the children within 24 hours, or as soon as practicable in the case of an emergency and further shall provide to the other party all the relevant particulars of the treatment received by the children together with the name and address of the treatment provider.
13.
That each party shall provide authorisation to any treating medical practitioner of the children to allow both parties to have direct access to the child’s health and medical records.
14.
That each party shall do all acts and things and sign all documents as may be necessary to instruct the principal of any such school as the children may attend to forward to both parties a copy of all school reports, request forms for school photographs, and any notifications and other documents relevant to the child’s welfare and education and, in this regard, both parties shall be permitted to attend any functions at the child’s school to which parents would normally be invited, including attending the first day of each primary and secondary school for each primary and secondary school as the children may attend.
15.
Notwithstanding any other order, the mother will have care of the children from 5.00pm on Easter Saturday until 5.00pm Easter Monday in even years and the father shall have care of the children from 5.00pm Easter Saturday until 5.00pm Easter Monday on odd years.
16.
That the father shall keep the mother informed at all times, by way of email or SMS text message, of the children’s enrolment in extra-curricular activities and the times of these events.
17.
That the mother do all things necessary to facilitate the children’s attendance at extra-curricular events at all times whilst the children are in her care.
18.
That each party be at liberty to attend all sports and extra-curricular activities in which the children may be involved.
19.
Both parties, their servants and agents, be and are hereby restrained by injunction from:
(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or members of their family; and
(b) Discussing these proceedings to or in the presence or hearing of the children and from permitting any other person to do so.
20.
Whilst the children are in either parent’s care they are restrained from inflicting physical punishment of any kind on the children.
21.
Each party shall facilitate the communication between children and other parent at reasonable times and parties are restrained from recording such conversations and allowing third parties to do so.
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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