FEDERAL CIRCUIT COURT OF AUSTRALIA
KAVANAGH & COBB [2018] FCCA 971
Catchwords:
FAMILY LAW – Application for final parenting orders – child 6 years – father seeking order for equal shared parental responsibility and equal time – mother seeking order for sole parental responsibility and for father to spend time from 10 am Saturday until 9 am Monday each alternate weekend and from Thursday at the conclusion of school until Friday at the commencement of school in the off week with a gradual increase in school holiday time – feature of the parties’ relationship is poor communication and a past inability to resolve disputes – parties have markedly different parenting styles – father seeking “parallel parenting arrangement” – order for equal time determined not to be in the child’s best interests – order made for child to live with the mother and spend substantial and significant time with the father determined to be in the child’s best interests.
Legislation:
Family Law Act 1975, ss.60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(2)(b), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 65D, 65DAA(1), 65DAA(2), 65DAA(5), 65DAC
Cases cited:
Bryant & Stapleton [2010] FamCAFC 5
Eldred & Eldred [2015] FamCA 61
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Moses & Downing [2009] FamCA 1270
H & H (2003) 176 FLR 35
Johns & Jasapas [2016] FamCA 471
Applicant: MR KAVANAGH
Respondent: MS COBB
File Number: CAC 422 of 2014
Judgment of: Judge Tonkin
Hearing dates: 6 & 7 November 2017
Date of Last Submission: 7 November 2017
Delivered at: Canberra
Delivered on: 20 April 2018 REPRESENTATION
Counsel for the Applicant: Self-Represented
Counsel for the Respondent: Ms Curran
Solicitors for the Respondent: Strong Law ORDERS
(1)All previous orders be and are hereby discharged.
(2)The parties shall have equal shared parental responsibility for the child [X] (“[X]”) born (omitted) 2012.
(3)[X] shall live with her mother.
(4)[X] shall spend time with her father:
(a)During school terms:
(i)Commencing 3 May 2018 from the conclusion of school or 3.00 pm on Thursday until the commencement of school or 9.00 am on Monday (or Tuesday if a long weekend) and each alternate week thereafter; and
(ii)Commencing 26 April 2018 from the conclusion of school or 3.00 pm on Thursday until the commencement of school or 9.00 am on Friday and each alternate week thereafter.
(b)During school holidays:
(i)For one half of each of the school holiday periods falling at the end of Terms 1, 2 and 3 as agreed and failing agreement for the first half in years ending in zero or an even number and for the second half in years ending in an odd number;
(ii)Each alternate week during the Christmas school holiday period in 2018 as agreed and failing agreement for the first, third and fifth weeks of those school holidays;
(iii)Each alternate week during the Christmas school holiday period in 2019 as agreed and failing agreement for the second, fourth and sixth weeks of those school holidays;
(iv)Commencing 2020 as agreed and failing…
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CaseChat Overview and Summary
The court was required to determine the orders regarding equal shared parental responsibility, where the child would live, and the specific arrangements for the child to spend time with each parent, including during school terms, school holidays, and special occasions. The court also needed to address practical matters such as handover procedures, use of childcare, international and interstate travel, medical care, communication between parents, and attendance at school and extracurricular activities.
Judge Tonkin ordered that all previous orders be discharged. The parties were granted equal shared parental responsibility for [X], with [X] to live with her mother. Detailed provisions were made for [X] to spend time with her father, outlining specific days and times during school terms and various school holiday periods, including Christmas holidays, with mechanisms for agreement or default arrangements. The orders also included provisions for Father's Day, Mother's Day, Christmas Day, and Boxing Day, as well as handover procedures, the use of consistent childcare placements, and notification requirements for travel, both internationally and interstate. Further orders addressed medical care, communication protocols, attendance at school functions and extracurricular activities, passport applications, change of address notifications, and a prohibition on criticising the other parent in the child's presence. Specific arrangements were also made for the mother spending time away from Canberra during winter, requiring medical certificates, itineraries, and proposals for make-up time, with the father's consent not to be unreasonably withheld. Finally, the parties were ordered to engage in mediation before filing any future applications concerning these orders.
Orders
Orders of the court
(1) All previous orders be and are hereby discharged.
(2) The parties shall have equal shared parental responsibility for the child [X] (“[X]”) born (omitted) 2012.
(3) [X] shall live with her mother.
(4) [X] shall spend time with her father:
(a) During school terms:
(i) Commencing 3 May 2018 from the conclusion of school or 3.00 pm on Thursday until the commencement of school or 9.00 am on Monday (or Tuesday if a long weekend) and each alternate week thereafter; and
(ii) Commencing 26 April 2018 from the conclusion of school or 3.00 pm on Thursday until the commencement of school or 9.00 am on Friday and each alternate week thereafter.
(b) During school holidays:
(i) For one half of each of the school holiday periods falling at the end of Terms 1, 2 and 3 as agreed and failing agreement for the first half in years ending in zero or an even number and for the second half in years ending in an odd number;
(ii) Each alternate week during the Christmas school holiday period in 2018 as agreed and failing agreement for the first, third and fifth weeks of those school holidays;
(iii) Each alternate week during the Christmas school holiday period in 2019 as agreed and failing agreement for the second, fourth and sixth weeks of those school holidays;
(iv) Commencing 2020 as agreed and failing agreement for the first half of the Christmas school holiday period and thereafter in years ending in zero or an even number and for the second half of the Christmas school holiday period commencing 2021 and thereafter in years ending in an odd number.
(v) [X] will spend time the remainder of all school holiday periods with her mother.
(5) For the purpose of these orders, Order 4(a) shall be suspended during school holiday periods. The father shall resume spending time with [X] at the commencement of the next block of time when he would ordinarily have been spending time with her but for the intervention of the school holidays.
(6) School holiday periods are deemed to commence at 3.00 pm on the day which is gazetted as the last day of school term and conclude at 5.30 pm on the Sunday preceding the commencement of the new school term.
(7) For the purpose of Order 4(b)(i) the first half of the holidays shall conclude at 5.30 pm on the middle Saturday and the second half of the holidays shall conclude at 5.30 pm on the Sunday prior to the commencement of the new school term.
(8) For the purpose of Orders 4(b)(ii), (iii) and (iv) the Christmas school holiday periods shall be deemed to commence at 3.00pm on the day which is gazetted as the last day of Term 4 or at 3.00pm on 20th December, whichever date is the later and shall conclude at 5.30pm on the Sunday preceding the commencement of the new school term.
(9) For the purpose of Order 4(b)(iv) the first half of the Christmas school holidays shall commence at 3.00 pm on the day which is gazetted as the last day of Term 4 or at 3.00 pm on 20 December, whichever date is later and shall conclude at 5.30 pm on the middle Saturday (being approximately three weeks after the commencement of time) and the second half of the Christmas school holidays shall commence at 5.30 pm on the middle Saturday (being approximately three weeks after the commencement of time) and conclude at 5.30 pm on the Sunday prior to the commencement of the new school term.
(10) For the purpose of Order 4(b)(iv), in the event that the total number of days for the Christmas school holiday periods comprise an uneven number of days, the father shall have the extra day in the years ending in an even number or zero and the mother shall have the extra day in the years ending in an odd number.
(11) Notwithstanding these Orders:
(a) The Father shall spend time with [X] on Father's Day from 10.00am until 5.30 pm and the Mother shall spend time with [X] on Mother's Day from 10.00 am until 5.30 pm;
(b) Unless otherwise agreed the parent with whom [X] is not spending Christmas Day in accordance with these orders, shall spend time with [X] from 9.00 am Boxing Day until 5.00 p.m. on 27 December.
(12) For the purpose of handover when not occurring at the school, the parent receiving the child shall collect her from the other parent's home, unless otherwise agreed in writing.
(13) In the event that either parent needs to utilise before and/or after school care or vacation care (including home based day-care), each parent shall ensure that the same placement(s) are used for the child with each parent entering into his or her own contract for services.
(14) Each party is permitted to remove [X] from the Commonwealth of Australia during periods when she is living with or spending time with that party, on the following conditions:
(a) The relevant party shall notify the other party in writing at least four weeks prior to the date of intended international travel. That upon booking overseas travel the travelling parent will forthwith notify the party in writing and shall provide them with an itemised itinerary for that travel period including:
(i) details of itineraries including copies of all travel bookings which include departure and return dates for all flights and details of the airline/cruise companies;
(ii) telephone numbers on which [X] can be contacted;
(iii) details of [X]’s accommodation during her absence from the country; and
(iv) details of necessary immunisations and travel insurance including copies of the relevant documents.
(15) If either party intends to take [X] interstate for any overnight period extending beyond seven nights, he or she shall notify the other party in writing no less than 3 days beforehand of the dates of travel, including the accommodation address where [X] will be staying together with a contact phone number.
(16) The parties shall each ensure that [X] attends the (omitted) Medical Centre or such other medical practice as may be agreed between them in writing and they shall ensure that [X] attends upon a preferred general practitioner within the agreed medical practice for all medical treatment save in the case of an emergency.
(17) In the event of any medical emergency and/or injury requiring hospitalisation for [X] the party who has care of [X] at that time shall immediately notify the other party.
(18) Each party shall communicate with the other party with respect to all issues concerning [X] by email, text or by application.[1]
(19) Both parties are permitted to attend all school functions and events for [X] that parents are ordinarily invited to and both parties are permitted to attend all sporting events and extra-curricular activities attended by [X] at all times.
(20) Provided that the parties agree in writing that [X] be enrolled in any particular extracurricular activity, each party shall ensure that [X] attends that activity regularly.
(21) Each party shall sign passport applications for [X] as and when required.
(22) Each party shall notify the other party in writing within 7 days of any change of address, mobile telephone number or other contact information.
(23) Each party is restrained from criticising and/or speaking negatively about the other party in the presence of the child or from permitting any other person to do so.
(24) When [X] is not spending time with a parent, the other parent is permitted to communicate with [X] by telephone between 7.15 pm and 7.30 pm on Sunday, on [X]’s birthday and on Christmas Day. The party who wishes to contact [X] shall call the other parent’s mobile phone and the other parent shall ensure that their phone is made available for [X] to receive the call.
(25) In the event that the mother wishes to spend time away from Canberra with [X] during winter she shall provide the father with the following:
(a) A medical certificate in support of any medical condition she suffers from requiring her to spend time away from Canberra;
(b) An itinerary including when and where the mother intends to spend time and what arrangements will be made for [X] to communicate with her father during this period; and
(c) A proposal for the father to have make up time with respect to the time [X] would ordinarily be in her father’s care but is unavailable due to time away with her mother.
(26) With respect to Order 25 hereof, upon the father being provided with the relevant information in accordance with that order, he shall not unreasonably withhold his consent to the mother spending time away from Canberra.
(27) Each party shall engage in mediation (either through Relationships Australia or such other appropriate public or private mediation service) prior to filing any application with respect to any issue arising from 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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