FAMILY COURT OF AUSTRALIA
| KAMANO & KAMANO | [2013] FamCA 348 |
| FAMILY LAW – CHILDREN – Children’s living arrangements – Where the children live with the mother for six nights and the father for eight nights every fortnight – Where the children live with both parents for half school holidays – Where the children would benefit in continuing their meaningful relationships with both parents – Where there was no risk of harm to the children through exposure to abuse, family violence or neglect in either parents care – where the father had a meaningful relationship with the children – where the father was best able to support the children’s emotional needs - where the mother failed to encourage or support the child’s relationship with the father – where the mother lacked insight into the impact of her anxieties and fears on her care of the children – where the children’s views were not given weight – where the children were under significant pressure to conform with the mother’s views about the father – where the children would benefit from the parents’ diverse cultural and religious backgrounds – where the mother had contravened previous orders to facilitate time between the children and father FAMILY LAW – CHILDREN – Parental Responsibility – where the father has sole parental responsibility – where the father retains an obligation to provide the mother notice and consider her views regarding any decision affecting the child’s long term care, welfare and development – where the presumption of equal shared parental responsibility was rebutted by evidence that the parties had continually failed to co-operate about decisions relating to the children’s major long-term issues – where the father alleged the mother was overmedicating the children – where the mother alleged the father was negligent in attending to the children’s medical needs – where the mother had frustrated the father’s attempts to participate in medical decisions affecting the children – where the mother contravened previous orders to jointly make decisions in relation to the children’s health care FAMILY LAW – CHILDREN – Family Violence – where there was no finding of family violence – where the mother alleged the father had perpetrated family violence upon her and the children – where the mother was required to advise the father of her current address – where the mother had concealed her address from the father FAMILY LAW – COSTS – Parties pay half the costs of the Independent Children’s Lawyer – where there would be no hardship to either party in meeting a costs order – where the parties high conflict necessitated the appointment of an Independent Children’s Lawyer |
| Family Law Act 1975 (Cth) ss 60CC, 61DA, 62B, 65L, 65DA, 65DAA and 117 |
| Telfer & Telfer (1996) FLC 92-688 |
| APPLICANT: | Mr Kamano |
| RESPONDENT: | Ms Kamano |
| FILE NUMBER: | NCC | 2413 | of | 2008 |
| DATE DELIVERED: | 22 May 2013 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATES: | 11, 12, 13 and 14 March 2013 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Hannaway… |
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- Case
- [2013] FamCA 348
- Decision Date
CaseChat Overview and Summary
The court was required to determine several key issues. These included whether the presumption of equal shared parental responsibility should be rebutted, the appropriate allocation of parental responsibility, and the specific living arrangements for the children. The court also considered the mother's alleged failure to encourage the children's relationship with the father, her lack of insight into her anxieties, and the children's views, which were not given significant weight due to perceived pressure from the mother. The court also addressed allegations of medical negligence and the mother's concealment of her address.
Cleary J found that the presumption of equal shared parental responsibility was rebutted due to the parties' persistent failure to cooperate on major long-term issues concerning the children. The court noted that while there was no finding of family violence, the mother had contravened previous orders by frustrating the father's attempts to participate in medical decisions and by concealing her address. The court also found that the mother had failed to encourage the children's relationship with the father and lacked insight into the impact of her anxieties. Despite the children's views not being given significant weight, the court acknowledged that the children would benefit from continuing meaningful relationships with both parents and from their diverse cultural and religious backgrounds.
Consequently, the court discharged all prior parenting orders and ordered that the father have sole parental responsibility for the children on issues not otherwise defined by the new orders, with specific obligations for him to notify the mother and consider her views on long-term decisions. The court also made detailed orders regarding the children's living arrangements, specifying that the children would live with the mother for certain periods and with the father at all other times, including provisions for school holidays and birthdays. The mother was ordered to provide her current address to the father. The court also ordered that each parent pay half the costs of the Independent Children's Lawyer, noting that this was necessitated by the high level of conflict between the parties.
Orders
Orders of the court
1.
That all prior parenting Orders for J born … May 2002 and T born … May 2004 (together known as “the children”) are discharged.
2.
That the father have sole parental responsibility for the children on issues not otherwise defined by these Orders and in that regard shall take the following steps when a long term issue arises for either or both of the children:
(a) notify the mother in writing (including by email) of the issue to be determined;
(b) ask the mother to express her views on the appropriate way to address the issue within a reasonable period defined by him in the correspondence;
(c) consider the views of the mother;
(d) advise the mother of the decision taken on the issue.
NOTING that long term issues include but are not limited to:
(i) Medical issues:
- doctors, psychologists and other health professionals to be consulted by the children;
- medication, treatment and diet.
(ii) Education:
- high school to be attended;
- extra-curricular activities.
3.
The mother is to advise the father in writing of her current residential address and contact telephone number.
4.
The children shall live with the mother as follows and with the father at all other times:
4.1 During school terms:
4.1.1 from after school each alternate Wednesday until before school the following Monday (“longer period”) commencing Wednesday 29 May 2013;
4.1.2
from after school each other Wednesday overnight until before school Thursday (“overnight period”) commencing Wednesday
5 June 2013.
4.2 Periods of time referred to in Orders 4.1.1 and 4.1.2 shall recommence in each school term as follows:
4.2.1 where the children have lived with their mother in the first half of the preceding holiday period then the longer period will commence on the first Wednesday of the new term;
4.2.2 where the children have lived with their mother in the second half of the preceding school holiday period then the overnight period will commence on the first Wednesday of the new term.
4.3 During school holidays periods:
4.3.1 for one half of each school holiday period applicable in the State of New South Wales, as agreed between the parties or failing agreement to be the first half of all school holiday periods which commence in odd numbered years commencing after school on the last school term day until 12.00 noon on the middle day of the period; and
4.3.2 the second half of holiday periods which commence in even numbered years from 12.00 noon on the middle day until 5.00 pm on the last non-school day (including pupil free days as non-school days).
4.4 At additional times as follows for which time with the father is suspended accordingly:
4.4.1 each Easter period which falls outside school holiday periods from 5.00 pm on the Thursday immediately before Good Friday until 5.00 pm on Easter Monday;
4.4.2 for Mother’s Day from 6.00 pm on the Saturday before Mother’s Day until before school on the Monday after Mother’s Day.
5.
In the event that the children are spending a longer period with their mother which includes Father’s Day then time with the mother shall be suspended from 6.00 pm on the Saturday before Father’s Day for the balance of that period.
6.
For each child’s birthday:
6.1 if a school day and the children are then living with the father pursuant to these Orders, from the end of the school day for the school(s) attended by the children until 7.30 pm and if not a school day, from 9.00 am until 1.00 pm:
6.2 if a school day and the children are then living with the mother pursuant to these Orders, from the end of the school day for the school(s) attended by the children until 7.30 pm and if not a school day, from 9.00 am until 1.00 pm:
7.
The father shall advise the mother in writing of:
6.1 the name, medical practice and contact details of the general practitioner treating the children;
6.2 the name and contact details of any medical specialist treating the children and in particular, shall instruct a paediatrician, which may or may not be the current treating paediatrician, to provide advice and each of the parents shall forthwith attend on the nominated paediatrician at a mutually convenient date to provide a medical history of the children NOTING that the parents may attend together but are not obliged to do so;
6.3 the name and contact details of any dentist treating the children
AND the appropriate treatment for each of the children.
8.
Unless with the prior written consent of the father, the mother is restrained from taking the children to medical and dental practitioners other than those nominated by the father pursuant to Order 7 herein.
9.
During school terms the children are to have communication by telephone with:
9.1 the mother on Tuesdays between 6.00 pm and 6.30 pm to be implemented by the mother telephoning the children on a mobile number nominated by the father;
10.
The parties shall maintain a communication book for the benefit of the children for the delivery of information relating to the health and education and welfare of the children and for no other purpose.
11.
Each parent shall keep the other advised in writing of any changes to residential address and contact telephone number not less than 7 days prior to the change.
12.
The father shall provide information to the mother in writing of the medication, if any, required by the children or either of them.
13.
The Independent Children’s Lawyer shall provide a copy of these Orders to:
13.1 the school which the children presently attend; and
13.2 Dr H.
14.
Each parent is restrained from:
14.1 criticising the other parent or members of that parent’s family and household;
14.2 denigrating the cultural background or religious practice of the other parent
In the presence or hearing of the children or either of them and further each parent shall use his/her best effort to restrain third parties from doing so.
15.
The father may provide to any paediatrician, psychologist or counsellor assisting the children a copy of the following:
15.1 these Orders;
15.2 the Reasons for Judgment;
15.3
the reports of Dr RR of 5 August 2011 and
7 February 2013.
16.
For the purposes of the collection and delivery of the children unless the parties otherwise agree:
16.1 During school terms:
16.1.1 the father or his nominee shall collect the children from school at the commencement of his time with the children and return them to their school(s) at the conclusion of his time; and
16.1.2 the mother or her nominee shall collect the children from school at the commencement of her time with the children and return them to their school(s) at the conclusion of her time.
16.2 In the event that the children are not due to attend school on a day the father is due to collect the children, the father or his nominee shall collect the children from and return them to McDonald’s Family Restaurant, BB Street, Town CC.
16.3 In the event that the children are not due to attend school on a day the mother is due to collect the children, the mother or her nominee shall collect the children from and return them to McDonald’s Family Restaurant, BB Street, Town CC.
17.
The parties shall each pay within 28 days of the date of this Order, one-half of the Independent Children’s Lawyer’s costs and disbursements estimated at $3,300 (including GST), one-half being $1,650, such payment to be made to the Proper Officer, Legal Aid New South Wales (Reference …) 323 Castlereagh Street, Haymarket NSW 2000.
18.
Pursuant to s 65L of the Family Law Act 1975 a Family Consultant shall give any party to the parenting order such assistance as is reasonably requested by that party in relation to the carrying out of the parenting order for a period of
12 months from the date of these Orders.
19.
Pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto 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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