FAMILY COURT OF AUSTRALIA
| KIRKLAND & GRANGER | [2007] FamCA 1471 |
| FAMILY LAW – CHILDREN – Orders made in regard to child’s enrolment in a particular school – Significant time – Best Interests |
| Family Law Act 1975 (Cth) |
| VR & RR (2002) FLC 93-099 W & G(No. 2) (2005) FLC 93-248 |
| APPLICANT: | Ms Kirkland |
| RESPONDENT: | Mr Granger |
| FILE NUMBER: | MLC | 3382 | of | 2007 |
| DATE DELIVERED: | 17 December 2007 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Albury |
| JUDGMENT OF: | Justice Cronin |
| HEARING DATE: | 23 & 28 November 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Boyle |
| SOLICITOR FOR THE APPLICANT: | Harris Lieberman |
| COUNSEL FOR THE RESPONDENT: | Mr O’Shannessy |
| SOLICITOR FOR THE RESPONDENT: | Adams Leyland |
Orders
That the husband and the wife forthwith do all such things and sign all such documents as may be required to enrol the child L born … November 1992 at the T School, D to commence school there in January 2008.
That by no later than June 2008, or such other time as the parties agree, they attend upon an educational psychologist or some other person with expertise in VCE education requirements to obtain information and recommendations about what school, C born … April 1995 should attend in the future.
That should either party desire to enrol a child in any extra-curricular activity other than those currently undertaken as at the date of these orders, then prior to such enrolment, he or she shall provide the other parent with full particulars of the proposed activity and obtain the written consent for that activity to be undertaken if it requires involvement of the other parent.
That the parents facilitate the children or either of them, spending additional time with the other parent should the child or children so request subject to the following conditions:
(a)such request shall be conveyed immediately by email or SMS message to the other parent along with any relevant information about the surrounding circumstances (if any), discipline and behavioural issues that may have given rise to such a request and details of any difficulty and/or inconvenience that granting such a request would create; and
(b)the parent receiving the request shall agree to facilitate the extra time unless satisfied that the request of the child is being made to avoid the consequences of his behaviour, in which case, the parent receiving the request shall tell the child it is inappropriate to agree and, subject to the foregoing, each party should thereupon do all things necessary to give effect to the request.
THAT BY CONSENT IT IS ORDERED:
That the Orders of the Family Court at Melbourne made 7 May 2007 be discharged.
That the parties have equal shared parental responsibility for the children L born … November 1992 and C born … April 1995 (“the children”).
That the parents consult and make a genuine effort to come to a joint decision in relation to the children’s:
(a) Health;
(b) Education.
That the children spend time with each of the parents as follows:
(a)Save as otherwise provided…
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CaseChat Overview and Summary
The court was required to determine a range of issues, including the children's schooling arrangements, the process for making decisions about their education and health, and the specific times each parent would spend with the children. Further issues included the management of extracurricular activities, communication protocols between parents, and the prevention of parental conflict and denigration. The court also addressed the need for psychological assessment and counselling for one of the children, as well as for the parents themselves.
Justice Cronin's reasoning, based on consent orders, established equal shared parental responsibility for both children. The orders detailed a complex schedule for the children's time with each parent, encompassing regular weekly arrangements, holidays, birthdays, and specific weekends. The court mandated that parents consult and make genuine joint decisions regarding the children's health and education, with specific provisions for seeking expert advice in cases of disagreement. Restraints were placed on denigrating the other parent and using corporal punishment. The orders also included provisions for communication, access to educational information, and attendance at school events, alongside requirements for counselling and mediation to reduce parental conflict.
Orders
Orders of the court
1.
That the husband and the wife forthwith do all such things and sign all such documents as may be required to enrol the child L born … November 1992 at the T School, D to commence school there in January 2008.
2.
That by no later than June 2008, or such other time as the parties agree, they attend upon an educational psychologist or some other person with expertise in VCE education requirements to obtain information and recommendations about what school, C born … April 1995 should attend in the future.
3.
That should either party desire to enrol a child in any extra-curricular activity other than those currently undertaken as at the date of these orders, then prior to such enrolment, he or she shall provide the other parent with full particulars of the proposed activity and obtain the written consent for that activity to be undertaken if it requires involvement of the other parent.
4.
That the parents facilitate the children or either of them, spending additional time with the other parent should the child or children so request subject to the following conditions:
(a) such request shall be conveyed immediately by email or SMS message to the other parent along with any relevant information about the surrounding circumstances (if any), discipline and behavioural issues that may have given rise to such a request and details of any difficulty and/or inconvenience that granting such a request would create; and
(b) the parent receiving the request shall agree to facilitate the extra time unless satisfied that the request of the child is being made to avoid the consequences of his behaviour, in which case, the parent receiving the request shall tell the child it is inappropriate to agree and, subject to the foregoing, each party should thereupon do all things necessary to give effect to the request.
THAT BY CONSENT IT IS ORDERED:
5.
That the Orders of the Family Court at Melbourne made 7 May 2007 be discharged.
6.
That the parties have equal shared parental responsibility for the children L born … November 1992 and C born … April 1995 (“the children”).
7.
That the parents consult and make a genuine effort to come to a joint decision in relation to the children’s:
(a) Health;
(b) Education.
8.
That the children spend time with each of the parents as follows:
(a) Save as otherwise provided for herein and paragraph 7 from 22 January until 24 December in each year:
(i) With the Mother from the end of school on Monday until the commencement of school the following Monday in each alternative week, commencing 19 November 2007;
(ii) With the Father from the end of school on Monday until the commencement of school on the following Monday in each intervening week, commencing 12 November 2007;
(b) With the Father from 4.00 pm on Christmas Eve until after the conclusion of the Father’s family Christmas party on Christmas Eve (provided this is no later than 1.00am) in each year with the father to deliver the children to the mother’s home;
(c) With the Mother from after the conclusion of the Father’s Christmas party on Christmas Eve as provided for in 4(b) above until 4.00pm on 8 January 2008 and each alternate year thereafter;
(d) With the Father from 4.00pm Christmas Eve in 2008 until 4.00pm 8 January 2009 and each alternate year thereafter;
(e) With the Mother for four hours on Christmas Day in 2008 and each alternate year thereafter at times as agreed between the parties and failing agreement from 4-8pm;
(f) With the Father for two weeks commencing 4.00pm on 8 January 2008 and each alternate year thereafter;
(g) With the Mother for two weeks commencing 4.00pm 8 January 2009 and each alternate year thereafter;
(h) From 5.00 pm on the Thursday before Good Friday until 5.00 pm on Easter Sunday in 2008 and each alternate year thereafter with the Father and from 5.00 pm on the Thursday before Good Friday until 5.00 pm on Easter Sunday in 2009 and each alternate year thereafter with the Mother;
(i) With the parent the children are not living with on their birthday for a period of two hours as agreed between the arties and failing agreement, from 4.00 pm to 6.00 pm;
(j) From 5.00 pm on the Saturday before Mother’s Day until 5.00 pm on Mother’s Day with the Mother in the event the children are not otherwise living with the Mother;
(k) From 5.00 pm on the Saturday before Father’s Day until 5.00 pm on Father’s Day with the Father in the event the children are not otherwise living with the Father;
(l) At any other times as the parties may agree upon.
9.
That in the event the children would ordinarily be living with the Father on the following dates pursuant to paragraph 5 herein, the “live with” arrangements be suspended and the children live with the Mother on these dates as follows:
(a) On 15 December 2007, from 10.00 am until 10.00 pm;
(b) From 12.00 pm on 1 January 2008 until 5.00 pm on 4 January 2007;
(c) On the weekend that the Mother’s family have their Christmas celebration in each year provided the Mother gives the Father no less than one month’s notice of this date, and it does not fall on the Father’s Christmas time herein.
10.
That in the event the children would ordinarily be living with the Mother on the following dates pursuant to paragraph 5 herein, the “live with” arrangements be suspended and the children live with the Father on these dates as follows:
(a) From 10.00 am on 8 December 2007 until 5.00 pm on 12 December 2007.
11.
That save as otherwise provided for, for the purposes of the time that each parent spend with the children as set out above the parties shall have handover through the school or otherwise handover shall take place at an agreed location or otherwise the husband shall collect and/or return the children to/from the wife’s residence.
12.
For the purposes of handovers facilitated by school, any items required to move between the households to be delivered for Father’s time to the A property and to be delivered for the Mother’s time to her home or as she requests.
13.
That the Father and Mother be able to communicate with the children by telephone at any reasonable time when the children are otherwise not living with them. The children be permitted to telephone the Father and Mother whenever they wish.
14.
That the Mother, her servants and agents be and is hereby restrained from attending the Father’s home.
15.
That both parties, their servants and agents be and are hereby restrained from using corporal punishment on the children.
16.
That the parties each be and are hereby restrained from denigrating the other party to or in the hearing of the children or allowing any other person to do so.
17.
That each parent shall ensure that the children attend all extracurricular activities that occur when the children are living with them and if either parent is unable to facilitate the children’s attendance, they shall advise the other parent by telephone no less than eight hours or as soon as possible before the time of the scheduled activity and the other parent be at liberty to take the children to their scheduled activity.
18.
(a) That in the case of the parents being unable to reach agreement as to medical treatment proposed for either of the children, the parties be required to consult with the child’s treating paediatrician or treating specialist and follow his, her or their recommendation;
(b) That the children shall attend the F Clinic except in case of an emergency or if the clinic has no appointments available for 24 hours;
(c) That each parent keep the other informed of any specialist attendance or appointment before such appointment and as soon as practical after such appointment is made.
(d) That each of the parents be at liberty to attend upon any specialist appointment.
(e) That save in emergency each parent inform the other and consult the other prior to seeking referral to, or the children attending upon, a medical specialist.
19.
That each party provide an authority to the other to enable the other party to be able to request and access educational information from the children’s school.
20.
That each parent be at liberty to attend all school events to which parents are ordinarily invited.
21.
That each party notify the other as soon as practicable of any significant illness suffered by the children or wither of them or of any admission by the children or either of them to hospital whilst in their care.
22.
That each party shall keep the other advised of their current address and telephone number at all times and advise the other within 7 days of any changes thereto.
23.
That the parties do all such things and sign all such documents to arrange personal counseling for C, with such counselor to be as nominated by the Family Consultant, the costs of such counseling to be shared equally between the parties.
24.
That the parents reduce their parental conflict by attending counselling and / or mediation at the Family Relationship Centre to strengthen their co-parenting relationship for such period as determined by the Counsellor and discuss specific issues about their sons as required; about i) education; ii) medical treatment; and iii) extracurricular activities.
25.
That leave be granted to provide to the counselor referred to in paragraphs 18 and 19 herein with a copy of the Family Report dated 10 October 2007.
26.
Pursuant to S65DA(2) and 62B of the Family Law Act 1975, 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 annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.
27.
That all extant applications be otherwise dismissed and all proceedings be removed from the list of cases awaiting a hearing.
IT IS CERTIFIED
28.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
NOTATION:-
1. That each parent will communicate directly and promptly with the other parent about matters concerning the children unless they are unavailable when their partner may communicate in their place.
2. That each party will be flexible in accommodating family events of the other party that the children wish to attend that fall during their time with the children.
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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