FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JEFFREYS & JEFFREYS | [2007] FMCAfam 1084 |
| FAMILY LAW – Relocation – need to protect children from parental conflict – concerns about willingness and capacity of one parent to foster relationship with other. |
| Family Law Act 1975, ss.60B, 60CC, 60I, 61DA, 65DAA |
| Bolitho & Cohen (2005) FLC 93-224 U & U (2002) 211 CLR 238; (2002) FLC 93-112; |
| Applicant: | MS JEFFREYS |
| Respondent: | MR JEFFREYS |
| File Number: | WOC 264 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 1 November 2007 |
| Date of Last Submission: | 26 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tonkin |
| Solicitors for the Applicant: | Heard McEwan |
| Solicitor advocate for the Respondent: | Mr David |
| Solicitors for the Respondent: | Hansons Lawyers |
ORDERS
That the children of the marriage B born in 1998 and S born in 1999 live with the Mother.
That the Mother be permitted to reside in Canberra with the children.
The parents have equal shared parental responsibility for making decisions about the long term care, welfare and development of the children
Each parent have the sole responsibility for making decisions about the day to day care, welfare and development of the children when the children are in their respective care.
The Father spend time and communicate with the children as follows:
(a)During school term each alternate weekend commencing from Thursday evening should the father be able to facilitate this and their attendance at school on Friday or alternatively from after school on Friday at a time agreed by the parties to 6:00 pm on Sunday except as agreed between the parties.
(b)In the event that 5(a) falls on a public holiday long weekend should the father be able to facilitate this then such time that the children spend with the Father shall be extended to the extent of the public holiday on the basis that if the public holiday falls on a Friday then the Father shall collect the children from after school on Thursday and if the public holiday falls on a Monday then the Mother will collect the children at 6:00pm on the Monday.
(c)For one half of the ACT Christmas holiday period as agreed but failing agreement for the first half in the years ending in an odd number and the second half in years ending in an even number.
(d)For the period from the conclusion of school on the Thursday prior to Good Friday to 6:00pm on Easter Monday in each year ending in an odd number.
(e)Subject to Order 5(a), 5(d) and 5(e) for the whole of the ACT school holiday…
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- AGLC
- Jeffreys and Jeffreys [2007] FMCAfam 1084
- Case
- [2007] FMCAfam 1084
- Decision Date
CaseChat Overview and Summary
The Court considered various factors, including the children's age, their needs, and the parents' ability to provide for them. In its reasoning, the Court emphasised the importance of stability and consistency in the children's lives, and the need to maintain a strong and healthy relationship between the children and both parents. The Court also highlighted the importance of the children's right to maintain contact with both parents, while recognising the need to protect them from exposure to conflict and harm. Ultimately, the Court decided that the children's best interests would be served by residing primarily with the Mother in Canberra, while allowing the Father to have regular and meaningful contact with them.
The Court's orders reflected its findings and reasoning. The children were to reside with the Mother, with the Father having specified contact times during school terms and holidays. The Court also granted both parents equal shared parental responsibility for long-term decisions about the children's welfare, while allocating sole responsibility for day-to-day care to each parent in turn. The Court imposed restrictions on alcohol consumption, the presence of pornographic material, and negative communication about the other parent in the children's presence. Finally, the Court mandated that both parents participate in family dispute resolution and counselling before seeking further court intervention.
Orders
Orders of the court
1.
That the children of the marriage B born in 1998 and S born in 1999 live with the Mother.
2.
That the Mother be permitted to reside in Canberra with the children.
3.
The parents have equal shared parental responsibility for making decisions about the long term care, welfare and development of the children
4.
Each parent have the sole responsibility for making decisions about the day to day care, welfare and development of the children when the children are in their respective care.
5.
The Father spend time and communicate with the children as follows:
(a) During school term each alternate weekend commencing from Thursday evening should the father be able to facilitate this and their attendance at school on Friday or alternatively from after school on Friday at a time agreed by the parties to 6:00 pm on Sunday except as agreed between the parties.
(b) In the event that 5(a) falls on a public holiday long weekend should the father be able to facilitate this then such time that the children spend with the Father shall be extended to the extent of the public holiday on the basis that if the public holiday falls on a Friday then the Father shall collect the children from after school on Thursday and if the public holiday falls on a Monday then the Mother will collect the children at 6:00pm on the Monday.
(c) For one half of the ACT Christmas holiday period as agreed but failing agreement for the first half in the years ending in an odd number and the second half in years ending in an even number.
(d) For the period from the conclusion of school on the Thursday prior to Good Friday to 6:00pm on Easter Monday in each year ending in an odd number.
(e) Subject to Order 5(a), 5(d) and 5(e) for the whole of the ACT school holiday periods at the conclusion of terms 1, 2 and 3 each year with the Father to collect the children at 9am on the day following the last day for students and the Mother to collect the children at 6:00pm on the Saturday prior to the first day for students except as agreed between the parties or where a pupil free day falls on the Monday, then the mother will collect the children at 6:00pm on the Sunday prior to the first day for students.
(f) The father’s time with the children be suspended on any weekend which includes Mother's Day and in substitution the father will spend time with the children on the following weekend at the same times as set out in 5(a) above.
(g) The mother’s time with the children be suspended on any weekend which includes Father's Day and in substitution the mother will spend time with the chilrden on the following weekend at the same times as set out in 5(a) above.
(h) Alternate weekend time with the father to commence on the weekend immediately following the conclusion of the school holidays.
(i) Such further times as the parties may mutually agree.
6.
The Father’s weekend time spent will the children shall be suspended during school holidays and over Easter.
7.
That for the purposes of Order 5(f) school holidays are deemed to commence on the day after school finishes for students and conclude at 6pm on the second last day of the school holidays.
8.
The Father shall collect the children from Canberra at the McDonalds Restaurant [X] at the commencement of his time and the Mother is to collect the children at the McDonalds Restaurant [Y] at the conclusion of the children’s time with the father.
9.
That the Mother make the children available for telephone conversations with the Father between 6.00pm and 7.00pm two days per week as agreed between the parties, with the Mother to text the Father prior to contact to notify the children’s availability.
10.
That both parties hand to the children unopened all letters, mail, email and any items addressed to the children by the other parent or their immediate family.
11.
That both parties give authority for the children’s school and medical practitioners to give to the other parent all information regarding the education or welfare of the children as requested by them.
12.
That the parties do all things necessary to ensure that the children are enrolled in therapeutic counselling for the period deemed necessary by the counsellor and that both parents be at liberty to discuss all issues in that regard with the children’s counsellor.
13.
That the children are not left unattended at the family home or any other place without appropriate supervision.
14.
That each party be restrained from consuming alcohol to excess during periods when the children spend time with them.
15.
That each party ensure that no pornographic or x-rated material or items are kept on the premises at which the children are living or may have access to.
16.
The father have liberty to apply before me within 28 days to have Order 15 above set aside.
17.
Both parents are hereby restrained from:
(a) Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s hearing.
(b) Discussing any proceedings between the parents in the presence or hearing of the children or permitting any other person to do so.
18.
That in the event the parents cannot reach a joint decisions about:-
(a) a major long-term issue involving the Child; or
(b) the interpretation of these Orders; or
(c) the implementation of these Orders; or
(d) the enforcement of these Orders; which involve the child,
each of the parents will do all things necessary to participate in Family Dispute Resolution at an Organisation recognised under the Family Law Act.
19.
That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the Children or of the parties, each of the parents is to take the following steps:-
(a) The Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act; and
(b) The Father and the Mother shall each participate in Family Dispute Resolution with an Organisation recognised under the Family Law Act.
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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