FAMILY COURT OF AUSTRALIA
| KENDLING & KENDLING (NO. 4) | [2007] FamCA 1530 |
| FAMILY LAW – CHILDREN – Sole responsibility – Consultation on major issues – Orders for time spent with other parent |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| APPLICANT: | MR KENDLING |
| RESPONDENT: | MRS KENDLING |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | SYF | 2903 | of | 2003 |
| DATE DELIVERED: | 21 December 2007 |
| PLACE DELIVERED: | MELBOURNE |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 16, 17, 18, 19 & 20 JULY 2007; 26, 29, 30 & 31 OCTOBER 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MS PYKE SC WITH MR KEARNEY during July MR GIVNEY during October |
| SOLICITOR FOR THE APPLICANT: | DORROUGH SMART |
| COUNSEL FOR THE RESPONDENT: | MR RICHARDSON SC |
| SOLICITOR FOR THE RESPONDENT: | MICHAEL CONLEY LAWYERS |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | MR HARPER during July and MR SPERLING during October |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | LEGAL AID, NEW SOUTH WALES |
Orders
That save for each of the orders made on 5 December 2007, all extant parenting orders are forthwith discharged.
That save for the matters set out in paragraph 3 hereof, the husband and the wife have equal shared parental responsibility for making decisions about major long term issues in relation to the children DAVID KENDLING born … September 1996 and MARC KENDLING born … January 1999.
That the wife have sole responsibility for making decisions in relation to the children concerning:
(a) Education; and
(b) Health.
Notwithstanding paragraph (3) hereof before any long term decision is made in respect of the education of the children:
(a)The wife shall advise the husband by email transmission (to an electronic address nominated by the husband) of her proposal relating to the children; and
(b)If the husband wishes to comment on the wife’s proposal, he shall, within seven (7) days after the date on the wife’s email transmission, advise the wife by email transmission (to the address from which the wife sent her communication) of his views;
(c)Upon receipt of any comment or proposal by the husband, the wife shall give consideration to his views; and
(d)After the wife has considered the husband’s comments, she shall make a decision and electronically advise the husband of the outcome immediately after making that decision.
For the purposes of paragraph (4) hereof, if the husband does not electronically respond as provided by paragraph (4)(b), the wife shall be entitled to presume that the husband does not wish to be involved and she may decide the issue accordingly.
Notwithstanding paragraphs (3) and (4) hereof, each party be and is hereby restrained from removing or taking any steps that may lead to the removal of the said children from I School or from the O College waiting list without the prior written consent of the other parent.
Each party be and is hereby restrained from removing the children’s permanent residential address from within the G Shire.
That the husband may attend all school and extra-curricular activities of the children at which parents would normally attend.
That each of the husband and the…
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- Case
- [2007] FamCA 1530
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent of shared parental responsibility for major long-term decisions concerning the children, specifically in relation to their education and health. Additionally, the court needed to establish the practical arrangements for the children's time with each parent, communication protocols, and restrictions on international travel.
Justice Cronin discharged all extant parenting orders, save for those made on 5 December 2007. The court ordered that the husband and wife have equal shared parental responsibility for most major long-term issues, with the wife having sole responsibility for decisions concerning the children's education and health. However, detailed procedures were established requiring the wife to consult with the husband via email before making significant decisions in these areas, with specific timeframes for his response. The court also made detailed orders regarding the children's time with the husband, including specific arrangements for weekends, weekdays, school holidays, and birthdays, as well as communication protocols between the parents and children. The court further restrained both parties from removing the children from Australia without prior written consent and placed their names on the Airport Watch List.
All outstanding parenting issues, apart from costs, were dismissed. The court ordered that costs be determined on written submissions, with specific filing and reply dates set. The parenting proceedings were removed from the list of cases awaiting a hearing.
Orders
Orders of the court
1.
That save for each of the orders made on 5 December 2007, all extant parenting orders are forthwith discharged.
2.
That save for the matters set out in paragraph 3 hereof, the husband and the wife have equal shared parental responsibility for making decisions about major long term issues in relation to the children DAVID KENDLING born … September 1996 and MARC KENDLING born … January 1999.
3.
That the wife have sole responsibility for making decisions in relation to the children concerning:
(a) Education; and
(b) Health.
4.
Notwithstanding paragraph (3) hereof before any long term decision is made in respect of the education of the children:
(a) The wife shall advise the husband by email transmission (to an electronic address nominated by the husband) of her proposal relating to the children; and
(b) If the husband wishes to comment on the wife’s proposal, he shall, within seven (7) days after the date on the wife’s email transmission, advise the wife by email transmission (to the address from which the wife sent her communication) of his views;
(c) Upon receipt of any comment or proposal by the husband, the wife shall give consideration to his views; and
(d) After the wife has considered the husband’s comments, she shall make a decision and electronically advise the husband of the outcome immediately after making that decision.
5.
For the purposes of paragraph (4) hereof, if the husband does not electronically respond as provided by paragraph (4)(b), the wife shall be entitled to presume that the husband does not wish to be involved and she may decide the issue accordingly.
6.
Notwithstanding paragraphs (3) and (4) hereof, each party be and is hereby restrained from removing or taking any steps that may lead to the removal of the said children from I School or from the O College waiting list without the prior written consent of the other parent.
7.
Each party be and is hereby restrained from removing the children’s permanent residential address from within the G Shire.
8.
That the husband may attend all school and extra-curricular activities of the children at which parents would normally attend.
9.
That each of the husband and the wife have liberty to disclose the details of these orders to all principals and teachers of schools that the children attend together with all hospital, medical, dental and other health professionals attended by the children.
10.
That in respect of paragraph (3)(b) hereof, other than in an emergency, before any appointment is made for the children to attend any medical practitioner, dental practitioner or other health professional, other than for everyday childhood illness:
(a) The wife shall advise the husband by email transmission of:
(i) Her proposal concerning the medical, dental or other health professional treatment;
(ii) The name of the proposed treater; and
(iii) What professional information or advice she has received;
(b) If the husband wishes to comment on the wife’s proposal, he shall within seven (7) days after the date of the wife’s email transmission, advise the wife by email transmission (to the address from which the wife sent her communication) of his view;
(c) Upon receipt of any comment or proposal by the husband, the wife shall give consideration to his views; and
(d) After the wife has considered the husband’s comments, she shall make a decision and immediately advise the husband of the outcome.
11.
For the purposes of paragraph (9) hereof, if the husband does not electronically respond as provided by these orders, the wife shall be entitled to presume that he does not wish to be involved in the decision-making process and she may decide the issue accordingly.
12.
Notwithstanding anything that may be construed to the contrary in paragraph (9) hereof, the wife shall communicate to the husband by email transmission:
(a) Advice as to hospital, medical, dental or health professional appointments for the children;
(b) Any advice as to medication being administered to either child,
and the husband may attend any appointment with any hospital, medical practitioner, dental health practitioner or other health professional relating to the children.
13.
For the avoidance of doubt, decisions relating to education and health referred to in paragraph (3) hereof are those that affect the long term health and well-being of the children.
14.
Pursuant to s 65DAC(2) of the Family Law Act 1975, all decisions other than those referred to above relating to major long term issues about the children shall be made jointly between the parents.
15.
That the children spend time with the husband as follows:
(a) On each alternate weekend from Thursday upon conclusion of school until the following Monday morning at the commencement of school commencing on the first Thursday of the 2008 school year;
(b) On each alternate Wednesday from the conclusion of school until 8.00pm commencing on the second Wednesday of the 2008 school year;
(c) For the first half of all school term holidays that commence in even-numbered years and for the second half of all school term holidays that commence in odd-numbered years;
(d) For one half of all long summer holidays being the first half in all odd-numbered years and the second half in all even-numbered years;
(e) On Father’s Day in each year from the Saturday evening at 6.00pm of that weekend until the commencement of school on the following Monday morning;
(f) On each child’s birthday and the husband’s birthday from the conclusion of school until 6.00pm if it is a school day or from 8.00pm until 1.00pm on a weekend which is not the husband’s weekend with the children.
16.
For the purposes of paragraph (15)(a) hereof, the husband shall ensure that the children attend all Saturday morning sporting activities in which they have been enrolled either by consent, or in the absence of a consent where the wife in consultation with the children’s school principal and sports master has enrolled the children in a sporting activity of which the husband has been notified by the wife by email transmission.
17.
Should the husband fail to comply with paragraph (16) hereof for two consecutive weekends, paragraph (15)(a) hereof is suspended until the husband advises the wife by email transmission that he will so comply and in the event that paragraph (15)(a) is so suspended, the husband shall spend time with the children on the alternate weekends from 1.00pm on Saturday until the commencement of school on the following Monday morning in lieu thereof.
18.
For the purposes of paragraph (15)(a) hereof, notwithstanding that the husband is to deliver the children to the school on Monday morning, he shall ensure that the children sleep in the R area on Sunday evening.
19.
That during all school holiday periods, the provisions of paragraph (15)(a) and (b) of these orders are suspended and they shall resume immediately after school resumes as if they had not been so suspended.
20.
That for the purposes of paragraph (15)(b) hereof, the husband shall collect the children from their school and return them to the residence of the wife.
21.
That should these orders not otherwise provide for the exchange of the children, the husband shall collect them from the wife outside of her residence and return them outside of her residence upon the conclusion of any period under these orders.
22.
The husband’s time with the children under these orders is suspended during the following:
(a) On Mother’s Day from Saturday evening at 6.00pm of that weekend until the commencement of school on the following Monday morning; and
(b) On each child’s birthday, the birthday of the children’s sister Vivian and the wife’s birthday from 6.00pm if a school day until the commencement of school on the following morning or from 1.00pm until 6.00pm if on a weekend which is not the wife’s weekend with the children.
23.
That the husband communicate with the children by telephone and the wife facilitate such telephone calls as follows;
(a) On each Tuesday and Thursday afternoons between 6.00pm and 7.00pm; and
(b) At such other times as the children or either of them may respectively desire at their own initiative.
24.
That when the children are living with the husband pursuant to these orders, the children communicate with the wife and the husband facilitate such communication in the following manner:
(a) By telephone on each Tuesday and Thursday afternoons between 6.00pm and 7.00pm; and
(b) At such other times as the children or either of them may respectively desire at their own initiative.
25.
That the Independent Children’s Lawyer as soon as practicable explain the details of these orders to the children.
26.
That each party keep the other informed at all times of their telephone number and residential address.
27.
That the husband and the wife be and are hereby restrained from removing the children David Kendling born … September 1996 and Marc Kendling born … January 1999 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police do all things necessary to implement these orders.
28.
That the Australian Federal Police forthwith place the names of the said children on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order of the Court.
29.
That notwithstanding the foregoing two paragraphs, neither party shall unreasonably withhold their consent to a request on 60 days notice by the other parent, to remove the children from the Commonwealth of Australia for the purposes of attending an overseas holiday during periods that the children are entitled to spend with that parent pursuant to these orders and, to give effect to this order, each party shall execute minutes of consent orders at the appropriate time to enable the injunctions pursuant to paragraphs (27) and (28) hereof to be appropriately suspended.
30.
That save as to any issue of costs as between the parties and any claim for costs by the Independent Children’s Lawyer, the applications of the husband and the response of the wife in respect of all outstanding parenting issues are dismissed.
31.
That in respect of any issue as to costs as provided for in paragraph (30) hereof, those issues shall be determined on written submissions to Justice Cronin and such submissions shall be:
(a) Filed with the Associate to Justice Cronin by 4.00pm on 31 January 2008; and
(b) Served on the other party by that date.
32.
That any party receiving a submission as to costs as provided by paragraph (31) hereof, shall have until 15 February 2008 to reply, such written reply to be provided to the Associate to Justice Cronin.
33.
That any issue as to costs be determined in chambers.
34.
That all parenting proceedings be otherwise removed from the list of cases awaiting a hearing.
35.
That after 1 February 2008 all exhibits be returned to the practitioner producing them.
36.
That all material produced pursuant to subpoenae in relation to the parenting proceedings be returned to the recipient of the subpoena.
37.
That pursuant to s.65DA(2) and s.62B, 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.
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Evidence
Evidence Before The Court
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Decision
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