FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KEENE & BALLARD | [2012] FMCAfam 185 |
| FAMILY LAW – Final parenting arrangements for child aged eighteen months – child currently lives with Caucasian father in [B] – Indigenous mother lives in [P] – child has been in care of father since February 2011 – mother hospitalised in [P] and Adelaide in February 2011 due to drug induced psychosis – mother seeks orders that would see child living in [P] either in her predominant care or in shared care regime with father – family report writer recommends child live in shared care arrangement with father and mother in [P] – such proposals reliant on father voluntarily moving to [P] – father’s position is that he would move to [P] only under sufferance – father’s preferred outcome is for child to live in [B] with him – relocation – matters to be considered – right of child to enjoy aspects of her Indigenous background – protection from potential psychological harm arising from possible risk of mother suffering possible recurrence of either substance abuse or mental illness – child entitlement to have a meaningful level of relationship with both parents – adequacy of proposals to spend time with each parent – practical and logistical considerations – presumption of equal shared parental responsibility – equal time – substantial and significant time – best interests – reasonable practicality. |
| Family Law Act 1975, ss.4; 60B; 60CA; 60CC; 60D; 61DA; 61F; 65C; 65DAA; 65DAC; 65DAE; 68L; 68LA |
| Davis v Davis (2007) 38 Fam LR 671 B & R and the Separate Representative (1995) FLC 92-636 Brown & Ferguson [1998] FamCA 239 Davis v Davis (2007) 38 Fam LR 671 MRR v GR [2010] HCA4 Goode & Goode (2006) FLC 92-286 C & S [1998] FamCA 66 AMS v AIF; AIF v AMS (1999) FLC 92-852 Taylor & Barker [2007] FamCA 1246 Cowley & Mendoza [2010] FamCA 597 U & U 2002 FLC 93-112 B & B: Family Law Reform Act 1995 (1997) FLC 92-755 D and S V (2003) FLC 93-137 Godfrey v Saunders (2007) 208 FLR 287 M & S (2007) FLC 93-313 Morgan & Miles [2007] FamCA 1230 Re: CP (1996) 21 Fam LR 486 Fragomeli & Fragomeli (1993) FLC 92-393 H & H (2003) 30 Fam LR 264 |
Applicant: | MS KEENE |
| Respondent: | MR BALLARD |
| File Number: | ADC 1535 of 2011 |
| Judgment of: | Brown FM |
| Hearing dates: | 31 October, 1 & 2 November 2011, 30 & 31 January & 1 February 2012 |
| Date of Last Submission: | 1 February 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 9 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr McQuade |
| Solicitors for the Applicant: | Family Violence Legal Service |
| Counsel for the Respondent: | Ms Ross |
| Solicitors for the Respondent: | Doyle Kingston Swift |
| Counsel for the Independent Children’s Lawyer: | Ms Hafey |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
The parties have equal shared parental responsibility for the child of the relationship [X] born [in] 2010 (hereinafter referred to as “the child”).
The child live…
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- Keene and Ballard [2012] FMCAfam 185
- Case
- [2012] FMCAfam 185
- Decision Date
CaseChat Overview and Summary
The court addressed several key legal issues, including the interpretation of the best interests of the child, the allocation of shared parental responsibility, and the practicalities of the visitation schedule. The court examined the parents' respective roles and the necessity for clear, detailed guidelines to ensure the child's welfare and stability. It also considered the parents' ability to cooperate and the potential impact of their relationship on the child.
In its reasoning, the court emphasised the importance of maintaining a stable and predictable environment for the child. It outlined a detailed visitation schedule that gradually increased the child's time with the mother as she grew older, while ensuring the child's primary residence remained with the father. The court also detailed the financial responsibilities of each parent during the visitation periods, including transportation and accommodation costs. Additionally, the court imposed restrictions on the mother's substance use and required her to undergo medical and psychological treatment, reflecting concerns about her past behavior and its impact on the child.
The final orders of the court established equal shared parental responsibility for the child, with specific provisions for the child's living arrangements and visitation schedule. The court mandated that the child would primarily reside with the father but would have regular and structured visits with the mother, with detailed guidelines for the logistics of these visits. The court also outlined financial responsibilities, communication protocols, and restrictions on the mother's substance use, aiming to protect the child's welfare and ensure a harmonious co-parenting relationship.
Orders
Orders of the court
1.
The parties have equal shared parental responsibility for the child of the relationship [X] born [in] 2010 (hereinafter referred to as “the child”).
2.
The child live with the father in [B] in the state of New South Wales.
3.
The child spend time with the mother as follows:
(a) Until the child attains the age of two (2) years :
(i) For block periods of time of no less than four (4) days in each calendar month, between 10:00am and 7:00pm on the first and fourth days of such blocks but overnight between days 2 and 3, the days to be agreed between the parties and failing agreement to be the last four (4) days of the month commencing with March of 2012, the first such period of time to take place in [P] and the second such period of time to take place in [B], with the location of each subsequent period of time to alternate between [P] and [B] thereafter.
(b) After the child attains the age of two years and until she attains the age of three (3) years :
(i) For block periods of time of no less than six (6) days in each calendar month, between 10:00am and 7:00pm on the first and fourth days of such blocks but overnight between days 2 and 3, and days 4 and 5 the days to be agreed between the parties and failing agreement to be the last six (6) days of the month commencing with October of 2012, the first such period of time to take place in [B] and the second such period of time to take place in [P], with the location of each subsequent period of time to alternate between [P] and [B] thereafter.
(c) From the time the child commences pre-school until the child commences school:
(i) For block periods of time of no less than six (6) days in each calendar month, the periods to alternate between [P] and [B] the days to be agreed between the parties and failing agreement to be the last six (6) days of each month.
(d) From the time the child commences primary school:
(i) For one week in each of the school holidays at the end of Terms 1, 2 and 3 by agreement and failing agreement for one week commencing the first Saturday of the school holidays in 2016 and alternate years thereafter and for one week commencing the second Saturday of the school holidays in 2017 and alternate years thereafter.
(ii) For two periods each of ten days at the end of Term 4 in each year by agreement and failing agreement:-
A. from 24 December 2016 and alternate years thereafter;
B. From 16 January 2017 and alternate years thereafter;
C. From 27 December 2017 and alternate years thereafter;
D. From 19 January 2018 and alternate years thereafter.
(a) For the purpose of this Order, the mother shall collect the child from the father in [B] at the commencement of her time with the child and the father shall collect the child from [P] at the conclusion of the mother’s time with the child.
4.
For the purposes of giving effect to order 3(a), (b) and (c) hereof, so far as each period of time the mother spends with the child in [P], the father shall be responsible for all costs incurred in the transport of the child to [P] and the accommodation of any adult, including the father himself, who travels to [P] with the child and will in addition be responsible for all costs incurred in accommodating the child during any overnight period when she is not in the care of the mother.
5.
For the purposes of giving effect to order 3(a), (b) and (c) hereof, so far as each period of time the mother spends with the child in [B], the father shall contribute the sum of $250.00 towards the costs of each of the mother’s trips to [B] and shall pay this sum to the mother as she directs with such direction to be provided to the father seven (7) days prior to the date scheduled for the mother to spend time with the child in [B] with the payment to be made three (3) days prior to the mother’s travel to [B].
6.
For the purpose of giving effect to order 3(d)(i) & (ii) hereof, the mother shall collect the child from the father in [B] at the commencement of her time with the child and the father shall collect the child from [P] at the conclusion of the mother’s time with the child and each party shall bear his or her own costs of travel arising from the implementation of this aspect of the orders.
7.
The mother spend time with the child at any other times and on any other conditions as may be agreed between the parties from time to time.
8.
The mother be restrained and an injunction issue restraining her from consuming alcohol, illicit drugs, prescription drugs other than in accordance with a prescription issued to her and drugs containing codeine other than in accordance with medical advice during any period of time the child is in her care and twenty-four hours beforehand.
9.
The mother be at liberty to telephone the child and the father do all things necessary to facilitate such telephone communication between mother and child during any period the child is living with him or is otherwise in his care.
10.
The father be at liberty to telephone the child and the mother do all things necessary to facilitate such telephone communication between father and child during any periods when the child is in the mother’s care for two or more consecutive nights.
11.
The mother and father keep the other informed of their current residential addresses and contact telephone numbers (including mobile telephone numbers) and shall notify the other of any changes of such details within seventy-two hours of any change in such particulars.
12.
The mother continue to consult her general medical practitioner, Dr K (or his nominee) and attend upon him (or his nominee) and undertake and complete such treatment, including referral to a psychiatrist or any other medical specialist as Dr K (or his nominee) shall direct.
13.
In the event the mother is referred for psychiatric treatment she complete any course of treatment prescribed for her by such psychiatrist.
14.
The mother attend any course of drug and alcohol counselling recommended to her by Dr K and endeavour to complete such a course of counselling within twelve (12) months of the date of these orders and provide details of the counselling undertaken by her, in writing, to the solicitor for the father.
15.
The mother and father are each restrained and an injunction issues restraining each of them from denigrating the other in the presence or hearing of the child or permitting any other person to do so.
16.
The parties utilise a communication book to be exchanged between them on each handover of the child with the book to contain written details of the child’s dietary needs; sleeping patterns; medical needs and any other issues relevant to her ongoing care.
17.
The mother and father shall inform the other parent as soon as reasonably practical of any significant health issue or significant illness or accident suffered by the child. This order authorises any treating medical practitioner to release information concerning the child’s medical condition to the other parent.
18.
The mother and father shall keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner, including psychologists and counsellors who treat the child and authorise those practitioners to provide the other parent with all information that they are lawfully able to provide to the parents about the child.
19.
The mother and father shall each take all reasonable steps to ensure that their details are included on any documents relating to the child’s enrolment in day care, pre-school and/or school and the mother and father shall each take all reasonable steps to ensure that they are able to receive copies of school reports, newsletters and photograph order forms in respect of the child.
20.
The mother and father shall each be entitled to attend pre-school and school events to which all parents are invited, including parent/teacher interviews, subject to the convenience of the child’s teacher/s.
21.
The appointment of the independent children’s lawyer be discharged.
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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