FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KLEIN & FARR | [2011] FMCAfam 1361 |
| FAMILY LAW – Application for final parenting orders – where the child shall live – time spent with other parent – child’s best interests. |
| Family Law Act 1975 (Cth) ss.60CC, 61B, 61C, 61DA, 65DAA, 65DAC |
| Goode & Goode [2006] FamCA 1346 Marsden and Winch (No.3) [2007] FamCA 1364 Mulvany v Lane [2009] FamCA 76 McCall & Clark [2009] FamCAFC 92 MRR v GR [2010] HCA 4 Friscioni v Friscioni [2010] FamCA 108 Hall & Hall (1979) FLC 90-713 Collu v Rinaldo [2010] FamCA 53 Mallahan & Mallahan (2010) FamCA 631 Mazorski v Albright [2007] FamCA 520 G & C [2006] FamCA 994 Saunders (1976) FLC 90-078 Starr & Duggan [2009] FamCAFC 115 |
| Applicant: | MR KLEIN |
| Respondent: | MS FARR |
| File Number: | DGC 4323 of 2010 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 10, 11 & 12 October 2011 |
| Date of Last Submission: | 18 November 2011 |
| Delivered at: | Dandenong |
| Delivered on: | 19 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Stanley |
| Solicitors for the Applicant: | Bayside Solicitors |
| Counsel for the Respondent: | Ms H. Dellidis |
| Solicitors for the Respondent: | McMullan Solicitors |
| Counsel for the Independent Children’s Lawyer: | Mr R. Curtain |
| Solicitors for the Independent Children’s Lawyer: | CE Family Lawyers |
ORDERS
All previous parenting Orders in relation to the child, [X] born [in] 2004 (“the child”) be discharged.
The mother and father have equal shared parental responsibility for the child.
The child live with the father.
The child spend time with and communicate with the mother as follows:
(a)during the school term each alternate weekend from the conclusion of school or 3.30pm if a non school day Friday to the commencement of school or 9.00am if a non school day on the Monday.
(b)each Wednesday during the school term from the conclusion of school or 3.30 pm if a non-school day to the commencement of school on the Thursday or 9.00 am if a non school day.
That the child spend additional time with the mother as follows:
(a)For one week in each of the Term 1, 2 and 3 school holidays commencing as agreed and failing agreement for the first half of each holiday from the conclusion of the last day of school term until 6.00pm the following week.
(b)during the long summer holidays on a week about basis commencing from the conclusion of the last day of school term until 6.00 pm the following week.
(c)by telephone each Tuesday when the child is not in the mother’s care, between 6.00 pm and 6.30 pm, with the mother to place a call to the father’s mobile phone and the father to ensure the child is made available to take such call and not be placed on loudspeaker;
(d)by telephone at any other time the child expresses a wish to speak to the other parent and each parent facilitate the child making contact with the other parent;
(e)on the child’s birthday and the mother’s birthday in the event the child is not in…
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- AGLC
- Klein and Farr [2011] FMCAfam 1361
- Case
- [2011] FMCAfam 1361
- Decision Date
CaseChat Overview and Summary
The legal issues focused on whether the existing parenting orders should be discharged and replaced with new ones, and if so, what the specific terms of these new orders should be. The court had to consider the child's need for stability, the parents' ability to provide a loving and supportive environment, and the potential impact of the arrangements on the child's welfare. The court also needed to address the parents' conduct towards each other and ensure that any new orders would promote a positive co-parenting relationship.
The court found that the existing orders were no longer in the child's best interest and discharged them. It held that both parents should have equal shared parental responsibility, with the child residing primarily with the father. The detailed schedule for the child's time with the mother was set out to ensure regular and meaningful contact, while also considering the child's school and holiday schedules. The court also imposed restrictions on the parents' conduct towards each other to protect the child from exposure to conflict and to encourage a cooperative co-parenting environment. Finally, the court mandated therapeutic counselling for the child and required the parents to maintain open communication and cooperation regarding the child's welfare.
The final orders included the discharge of previous parenting orders, equal shared parental responsibility, primary residence with the father, a detailed schedule for the child's time with the mother, restrictions on parental conduct, and mandates for therapeutic counselling and communication between the parties.
Orders
Orders of the court
1.
All previous parenting Orders in relation to the child, [X] born [in] 2004 (“the child”) be discharged.
2.
The mother and father have equal shared parental responsibility for the child.
3.
The child live with the father.
4.
The child spend time with and communicate with the mother as follows:
(a) during the school term each alternate weekend from the conclusion of school or 3.30pm if a non school day Friday to the commencement of school or 9.00am if a non school day on the Monday.
(b) each Wednesday during the school term from the conclusion of school or 3.30 pm if a non-school day to the commencement of school on the Thursday or 9.00 am if a non school day.
5.
That the child spend additional time with the mother as follows:
(a) For one week in each of the Term 1, 2 and 3 school holidays commencing as agreed and failing agreement for the first half of each holiday from the conclusion of the last day of school term until 6.00pm the following week.
(b) during the long summer holidays on a week about basis commencing from the conclusion of the last day of school term until 6.00 pm the following week.
(c) by telephone each Tuesday when the child is not in the mother’s care, between 6.00 pm and 6.30 pm, with the mother to place a call to the father’s mobile phone and the father to ensure the child is made available to take such call and not be placed on loudspeaker;
(d) by telephone at any other time the child expresses a wish to speak to the other parent and each parent facilitate the child making contact with the other parent;
(e) on the child’s birthday and the mother’s birthday in the event the child is not in her care, from 3.30 pm until 6.30 pm if a school day or from 2.30 pm until 6.30 pm if a non-school day and the child shall spend time with the father for the same periods in the event the child is already with the mother on the child’s and the father’s birthday;
(f) on Mother’s Day from 10.00 am until the commencement of school Monday and the child shall spend time with the father from 10.00 am Father’s Day until the commencement of school Monday in the event the child is already with the mother on Father’s Day;
(g) as may otherwise be agreed between the parties in writing.
(h) the child spend additional time with the mother during the Christmas festival as follows:
(i) in 2011 and each alternate year thereafter from 4.00 pm on 24 December until 3.00 pm on 25 December;
(ii) in 2012 and each alternate year thereafter from 3.00 pm on 25 December until 4.00 pm on 26 December;
6.
Where changeover does not occur from school on a school day it take place at the [omitted] Train Station or as otherwise agreed between the parties in writing.
7.
In the event the father or mother is unable to care for the child due to work commitments during school holidays or health issues, the other parent be provided with the first option to provide care for the child.
8.
That until further order the mother and father:
(a) promptly take all prescribed medication; and
(b) be and are hereby restrained from drinking alcohol to excess when having the child in their respective care.
9.
Until further order the parties personally and through their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the child and from permitting any other person to do so.
10.
The parties arrange therapeutic counselling for the child either through the child’s school, [S] School or alternatively such counselling organisation as agreed between the parties.
11.
Both parties do all such acts and things and sign such documents as is necessary to ensure the other can receive all school reports, newsletters and information from the child’s school.
12.
The parties forthwith commence and maintain a communication book with respect to the child, which book shall travel with the said child between the parties’ respective places of residence.
13.
Both parties shall contact the other in the event the child suffers any serious illness or medical emergency whilst the child is in their respective care within a reasonable time.
14.
The Independent Children's Lawyer be at liberty to provide a copy of this order to the Principal of [S] School and the Department of Human Services.
15.
The appointment of the Independent Children's Lawyer be discharged.
16.
All extant applications be otherwise dismissed and removed from the Pending Cases List.
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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