FEDERAL CIRCUIT COURT OF AUSTRALIA
| JORDAN & KLEMMER | [2014] FCCA 2233 |
| Catchwords: FAMILY LAW – Father’s application to spend time with the children – children aged 11 and 8 with strong views – mother admits to wanting to eliminate the father from the children’s lives – mother, her husband and maternal grandmother all involved in undermining the father’s relationship and standing of the children – mother makes false allegations of family violence – uses AVO strategically. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| Mazorksi & Albright [2009] FamCA 520 MRR v GR [2010] HCA 4 Chapman & Palmer (1978) FLC 90-510 Beach & Stemmler (1979) FLC 90- 692 Jones v Dunkel (1959) 101 CLR 298 |
| Applicant: | MS JORDAN |
| Respondent: | MR KLEMMER |
| File Number: | SYC 185 of 2011 |
| Judgment of: | Judge Willis |
| Hearing dates: | 25, 26 and 27 June 2014 |
| Date of Last Submission: | 27 June 2014 |
| Delivered at: | Cairns |
| Delivered on: | 8 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Beck |
| Solicitors for the Applicant: | Bannister Law |
| Solicitors for the Respondent: | Self-represented |
| Counsel for the Independent Children's Lawyer: | Mr Sperling |
| Independent Children's Lawyer: | Mr Gonzalez |
ORDERS
That all previous parenting orders in relation to the children X born (omitted) 2002, Y born (omitted) 2005 and Z born (omitted) 2009 are discharged.
Parental Responsibility
Each of the parties have equal shared parental responsibility for major long term decisions relating to the children of the relationship, X born (omitted) 2002, Y born (omitted) 2005 and Z born (omitted) 2009 (“the children”), including but not limited to:
(a)the children’s education (both current and future);
(b)the children’s religious and cultural upbringing;
(c)the children’s health;
(d)the children’s name;
(e)changes to the children’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent in writing about the decision to be made;
(b)They shall consult with each other on terms that they agree and failing agreement, the mother and father are to attend Family Dispute Resolution in order to resolve the matter;
(c)They shall make a genuine effort to come to a joint decision.
Living arrangements
The children will live with the mother.
The children will spend time with the father at all times as agreed between the parents NOTING that the Court has determined that it is in the best interests of the children to spend time with their father and further, that the father is to forthwith undertake counselling to learn appropriate methods of communication with the children, given that he has not spent time with them for a period, as recommended by the Family Report writer. The frequency and duration of such counselling is at the father’s discretion.
The father is at liberty to communicate with the mother to:
(a)Discuss issues to enable him to exercise his equal shared parental responsibility with the mother in…
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- Jordan and Klemmer [2014] FCCA 2233
- Case
- [2014] FCCA 2233
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent of equal shared parental responsibility for major long-term decisions concerning the children's education, health, religious and cultural upbringing, name, and significant changes to living arrangements. Additionally, the court needed to establish the children's living arrangements and the nature and extent of the father's time with the children, considering the children's best interests and the history of the parents' interactions.
Judge Willis discharged all previous parenting orders and made new orders. The parties were granted equal shared parental responsibility for major long-term decisions, with specific requirements for consultation and dispute resolution. The children were ordered to live with the mother, and the father was to spend time with the children as agreed, commencing after the children attended a counselling program or in July 2015. The court noted that it was in the children's best interests to spend time with their father and ordered him to undertake counselling. The father was granted liberty to communicate with the mother regarding decision-making and arrangements for time with the children. The court also made orders regarding communication, the children's surname, and the facilitation of contact and information sharing between the parents and the children, including specific directions for the Independent Children's Lawyer to explain the father's position and the court's orders to the children. The court made findings that the mother and maternal grandmother had actively undermined the father's relationship with the children and had given false evidence regarding alleged family violence.
Orders
Orders of the court
1.
That all previous parenting orders in relation to the children X born (omitted) 2002, Y born (omitted) 2005 and Z born (omitted) 2009 are discharged.
Parental Responsibility
2.
Each of the parties have equal shared parental responsibility for major long term decisions relating to the children of the relationship, X born (omitted) 2002, Y born (omitted) 2005 and Z born (omitted) 2009 (“the children”), including but not limited to:
(a) the children’s education (both current and future);
(b) the children’s religious and cultural upbringing;
(c) the children’s health;
(d) the children’s name;
(e) changes to the children’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
3.
The parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a) They shall inform the other parent in writing about the decision to be made;
(b) They shall consult with each other on terms that they agree and failing agreement, the mother and father are to attend Family Dispute Resolution in order to resolve the matter;
(c) They shall make a genuine effort to come to a joint decision.
Living arrangements
4.
The children will live with the mother.
5.
The children will spend time with the father at all times as agreed between the parents NOTING that the Court has determined that it is in the best interests of the children to spend time with their father and further, that the father is to forthwith undertake counselling to learn appropriate methods of communication with the children, given that he has not spent time with them for a period, as recommended by the Family Report writer. The frequency and duration of such counselling is at the father’s discretion.
6.
The father is at liberty to communicate with the mother to:
(a) Discuss issues to enable him to exercise his equal shared parental responsibility with the mother in making major long term decisions regarding the children.
(b) Make arrangements to spend time with the children, those arrangements can commence after the children have attended the Unifam program pursuant to the terms of these Orders, or commence in July 2015, whichever occurs first.
7.
The father is granted leave to provide a copy of these reasons to his counsellor and to the relevant person at Unifam, or any other counsellor that the children attend.
8.
The father is at liberty to send the children cards, letters, gifts and/ or photographs for each child on each of their birthdays, Christmas and Easter, care of the mother. The mother is to do all acts and things to give these items unopened to the children forthwith upon their arrival.
9.
The mother is restrained from making any derogatory comments about the father or the cards, letters, gifts or photographs directly to or in the hearing of the children and she is to all acts and things to remove the children from the presence of or hearing of any other person doing so.
10.
The mother and father are to keep the other informed at all times in writing of their current residential address, postal address, email address, telephone numbers (both mobile and landline) and they are to inform the other within 48 hours of any changes to any of the those contact details.
11.
The mother is to ensure that the father’s contact details referred to in Order 10 herein are given to the children forthwith, and that she continues to ensure they are kept aware of those contact details.
12.
The mother is to do all acts and things to facilitate time and communication between the father and the children.
Counselling program for the children
13.
The mother and father are to do all acts and things to ensure that the children are enrolled and attend The Anchor (Supporting Kids through Separation) Program run by Unifam and they are to make arrangements for this to occur in June 2015. However, the intake procedures are to be completed forthwith by each of the parties and booking are to be made for June 2015 within 30 days of the date of this Order.
14.
The mother is to file and serve upon the father and the Independent Children’s Lawyer an affidavit no later than 14 November 2014 confirming that the relevant inquiries have been made and that all acts and things have been organised to put this arrangement in place. In the event that the mother fails to file this affidavit confirming these arrangements, the matter is to be re-listed in relation to this issue before Judge Willis.
15.
The mother is to file and serve upon the father and the Independent Children’s Lawyer a further affidavit no later than Friday, 17 April 2015 confirming that all arrangements remain in place for the children to attend Unifam in accordance with these Orders and that the children will be attending. In the event this affidavit is not filed pursuant to this Order, the matter will be re-listed before Judge Willis.
16.
The mother and her agents are restrained from approaching Unifam other than to comply with the terms of these Orders.
Children’s Surname
17.
The mother is restrained from changing the children’s surname from Klemmer and she will do all acts and things to ensure that they are known by the surname Klemmer at all times, including for both social and formal purposes and including being shown on their records held at all schools attended by the children and doctors and medical specialists that the children attend from time to time.
Authorities
18.
These orders act as authority to:
(a) Enable each of the mother and father to contact any school attended by the children to obtain information about the children including but not limited to copies of all school reports for each child and request school photographs of the children at their own expense.
(b) Enable each of the mother and father to be noted as the children’s parents on all of the children’s school records together with each parent’s contact details.
(c) Enable each of the mother and father to attend school for all of the school events and activities to which parents are invited to attend, subject always to the discretion of the school.
(d) Either parent is permitted to provide a copy of these Orders to any school attended by the children or medical facility and Unifam or other counselling organisation.
19.
The mother and her agents as restrained from contacting the school (or any schools attended by the children) to interfere with the operation of these Orders or to raise objection to the terms of these orders with the school authorities.
Medical matters
20.
The mother is to keep the father informed of any significant ongoing medical issues in relation to the children NOTING her obligation pursuant to the equal shared parental responsibility order herein, to consult with the father about long term medical decisions.
21.
In the case of a medical emergency involving a child/ children, the parent with whom the child is with at that time, is to forthwith contact the other parent and advise the other parent of the nature of the medical emergency and the contact details of the relevant treating medical practitioners.
Communication
22.
The mother will ensure that the children will at all times have the contact details of the father including his address and contact telephone number (both mobile and landline) and email address and she is to enable the children to use any of these means to contact the father. The father is to keep the mother advised of these details pursuant to these Orders.
23.
The mother is to write to the father no less than once each 4 months commencing from the date of this Order setting out details of the children’s general activities, progress at school and their general wellbeing. The mother is to include a photograph of the children with each of these letters.
Other matters
24.
The Independent Children’s Lawyer is DIRECTED to forthwith today explain to the children in the presence of a Family Consultant, that:
(a) The father loves the children and is happy to see them at any time.
(b) They are free to contact him at any time via phone, text message, Skype, Facebook, email, cards and letters and that the mother will always provide those details.
(c) That they will likely receive cards, letters and gifts from their father in the future and they are at liberty to send cards, letters and gifts to their father.
(d) That the father does not wish to place the children under any pressure, that he is aware of their views and for that reason there are no specific orders at this time for contact between them and their father, but that the Judge considers it is in their best interests to spend time with their father and it is the hope of the father that they do so in the future.
25.
For this purpose the Independent Children’s Lawyer is granted leave to provide a copy of these reasons to the Family Consultant.
26.
The Independent Children’s Lawyer is directed to forward a copy of these Orders to the children’s school noting that the children are to be enrolled and known as the surname Klemmer.
27.
Either party has liberty to have the orders herein reviewed in relation to the children’s living and spending time arrangements on or after February 2016, by filing an initiating application and affidavit.
28.
In the event that the mother does not comply with Orders 11, 12 and 13 herein, the matter is to be relisted before Judge Willis.
29.
The mother’s legal representative is directed to explain to the mother the terms of these Orders and her obligations of s.65DA(2) today.
30.
The solicitor for the mother is to file and serve a short affidavit within 7 days of today’s date confirming that the Orders and the obligations of s.65DA(2) have been explained to the mother.
31.
The Independent Children’s Lawyer in the absence of any further applications will be discharged in August 2015.
32.
All outstanding applications are removed from the pending cases list.
NOTATION:
A. The Court has determined that it is in the best interests of the children to spend time with their father.
B. The only reason that this Court has not made more specific orders in relation to the father’s time is in acknowledgment of the current views of the children however, findings have been made by the Court that the mother, her husband Mr C and the maternal grandmother have actively undermined the father’s relationship with the children contrary to their best interests.
C. The Court has made findings that the mother and the maternal grandmother have given false evidence about alleged family violence by the father.
D. Findings have been made that mother has not complied with Court Orders for the children to spend time with the father and has been obstructionist in relation to allowing a relationship between the children and the father to occur.
E. The Court notes also the mother’s use of false family violence allegations (including harassment and threats) against the father in these family law proceedings were strategic.
F. The Court has directed the interpreter to translate the reasons for judgment to the father after Court today. The Orders have been translated for the father in Court today as they were pronounced.
G. That pursuant to section 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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