Kass & Kass
[2022] FedCFamC1F 855
Federal Circuit and Family Court of Australia
(DIVISION 1)
Kass & Kass [2022] FedCFamC1F 855
File number: NCC 2780 of 2018 Judgment of: GILL J Date of judgment: 4 November 2022 Catchwords:
FAMILY LAW – PARENTING – Consent orders made following amendments to certain terms of orders – Children to live with the mother and to spend significant time with the father – Equally shared parental responsibility between parties appropriate to neutralise parenting capacity deficiencies identified by both parties.
Division: Division 1 First Instance Number of paragraphs: 7 Date of hearing: In Chambers - 4 November 2022 Place: Canberra Solicitor for the Applicant: Ms Anderson, KPW Lawyers Solicitor for the Respondent: Ms Connell, Blomfield Legal Solicitor for the Independent Children’s Lawyer: Legal Aid, NSW ORDERS
NCC 2780 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KASS
Applicant
AND: MS KASS
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
4 NOVEMBER 2022
THE COURT ORDERS, BY CONSENT:
1.That the parties have equal shared parental responsibility for the children, namely X born 2010 and Y born 2015 (“the children”).
2.That the children live with Ms Kass (“the mother”).
3.That unless otherwise agreed between the parties in writing, the children spend time with Mr Kass (“the father”) as follows commencing Wednesday 9 November 2022:
(a)Excluding school term holidays each alternate week from the conclusion of school or 3.00 pm Wednesday until the commencement of school or 9.00 am Monday, or on the Tuesday should Monday be a public holiday.
4.That unless otherwise agreed between the parties in writing, the children will spend time with the parties as follows;
(a)With the mother in all odd numbered years, from 12.00 pm on Christmas Eve to 8.00 pm Christmas Eve.
(b)With the mother in all even numbered years from 8.00 pm Christmas Eve to 4.00 pm Christmas Day.
(c)With the father in all even years, from 12.00 pm on Christmas Eve to 8.00 pm Christmas Eve.
(d)With the father in all odd numbered years from 8.00 pm Christmas Eve to 4.00 pm Christmas Day.
(e)With the father on Father’s Day weekend from the conclusion of school or 3.00 pm Friday until the commencement of school or 9.00 am Monday.
(f)With the father on the father and children’s birthdays if the children are living with the mother, from 3.00 pm until 6.00 pm if a school day and from 1.00 pm until 6.00 pm if a non-school day.
(g)With the mother on Mother’s Day weekend from the conclusion of school or 3.00 pm Friday until the commencement of school or 9.00 am Monday.
(h)With the mother on the mother and children’s birthdays if the children are spending time with the father, from 3.00 pm until 6.00 pm if a school day and from 1.00 pm until 6.00 pm if a non-school day.
(i)With each parent for one half of all gazetted school term holiday periods, being with the father for the first half in all even numbered years commencing 12.00 pm the first Saturday of the school holiday period and concluding 12.00 pm the middle Saturday and with the father for the second half in all odd numbered years commencing 12.00 pm the middle Sunday and concluding 12.00 pm the last Sunday of the school holiday period.
(j)That for the purposes of and for the duration of the Christmas school holiday period, order 3(a) will continue but instead of the children being returned on the Monday morning, the father will return them at 3pm on the Wednesday;
5.That unless otherwise agreed between the parties in writing, changeover shall occur on a school day at the children’s school, or on a non-school day with the father to collect and return the children from and to the mother’s house.
6.That the parties shall facilitate the children communicating with each party at their request at all reasonable times and the party that has care of the children shall take all reasonable steps to facilitate such communication.
7.That the parties are restrained by injunction from:
(a)Degrading or making negative comments about the other parent or a member of their family in the presence or hearing of the children or exposing the children to any other person doing so.
(b)Discussing the Court proceedings with the children, in the presence of the children, or allowing any other person to do so.
(c)Exposing the children to conversations that could put at risk their emotional or physical wellbeing.
(d)Speaking about either Mr B or Mr C in the presence or hearing of the children or exposing the children to any other person doing so.
8.That each party is hereby authorised to obtain from the children’s school/childcare/extra-curricular/sporting organisations all notices, letters, school reports, photographs and other documents pertaining to the children’s education and attend any parent/teacher interviews, sporting events, extra-curricular activities and other events to which parents are invited.
9.That in the event that either party has cause to remove either of the children from school they are to immediately notify the other party by text or email.
10.That unless otherwise agreed in writing, each party shall notify the other if they leave the surrounding region within a 100 km radius of City D when the children are in their care.
11.That the father will ensure that on school nights the children are in bed by no later than 9.00 pm unless otherwise agreed between the parties.
12.That the father will ensure that the children have their own dedicated bed during periods of time that they stay with him.
13.That these Orders hereby authorise the children’s health practitioners including any general practitioner, psychologist, counsellor or allied health professional the children attend upon to provide to each parent upon request any assessments, reports and other information pertaining to the children’s health and wellbeing and to discuss all matters pertaining to the children’s health and wellbeing, with the requesting party to be responsible for any fees associated with such a request.
14.That the parties agree to the children’s general medical practitioner being changed to Dr E at F Health.
15.Within 28 days of the date of these orders, the parties will arrange through Dr E for an updated paediatric assessment for both children with Dr G and the parties are at liberty to discuss and consult with Dr G as a part of the assessment process.
AND IT IS NOTED THAT:
(a)The parties will pay equally in any associated costs; and
(b)The parties will adhere to any medical recommendations regarding but not limited to, medications.
IT IS FURTHER ORDERED, BY CONSENT:
16.That each party shall provide the other with at least three (3) days’ written notice by text message or email of any appointment made for the children in relation to their health and wellbeing with each party to be at liberty to attend such appointment in person or via electronic means.
17.That the parties notify the other as soon as reasonably practicable in the event of a medical emergency suffered by the children by telephone and if not an emergency, any medical illness, accident, or injury by text message or email including details of the illness or injury suffered, any medication prescribed and of the name of the treating doctor/hospital if applicable.
18.That each party notify the other within twenty-four (24) hours of any change to residential address, telephone number or email address.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kass & Kass has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
In this matter, the parties provided consent terms to the Court on 3 November 2022 in advance of the commencement of trial scheduled for 7 November 2022. The orders provided for an equal sharing of parental responsibility, the children to live primarily with the mother, but to spend substantial and significant time with the father. The parties also agreed to a suite of ancillary orders dealing with provisions for medical treatment for the children, provision that a party must give written notice if the parties are to remove the children more than 100 km from City D, and provisions about bed time for the children.
A number of the provisions initially consented to by the parties, have not become orders by virtue of questions as the Court’s power to make such orders. For example, orders were made providing for how the parties might pay for medical attendances and that the parties will be bound by recommendations made by a particular doctor.
The parties were advised that while the Court would make notations to the effect that that was what the parties were intending to do, such orders would not be made. The parties agreed to an amendment of the terms to reflect such changes.
It may be observed that the terms of a number of the orders are unusual, for example, the inclusion of provision as to bed times and as to travel. However, given the complex issues in this case it may also be observed that to the extent that the parties agree on a suite of orders as in the children’s best interest such provisions, while unusual, give appropriate comfort to the parties that the orders will function in the children’s best interests.
It may further be observed that this is a high conflict case. There is an inability on the part of the parties to communicate with each other. The substantial and significant time arrangements will be challenging for the parties. However, in circumstances where each alleges significant deficiencies on the part of the other, the sharing of time mitigates the risk for the children in each of the households by limiting the time in each of the households.
Further, the inability to communicate undermines an order for equally shared parental responsibility. However, given the highly divergent views of the parties and their particular parenting deficiencies it is appropriate that despite their inability to cooperate that an order be made for equally shared parental responsibility. That is appropriate because in this case it would not be in the children’s best interest for either of the parents to be at liberty to simply make long-term decisions for the child without reference to the other parent. That is, the requirement that the parental responsibility be equally shared is protective to ensure that one parent alone may not make decisions which will be detrimental to the well-being of the child.
Given the parties and the Independent Children’s Lawyer’s agreement to the terms, and given the above observations, it is appropriate to make orders as identified as being in the best interests of the children, both as to the manner of decision-making, the time that they will spend with each of their parents, and the various ancillary orders otherwise protective of their interests.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 4 November 2022
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