Korban v Korban

Case [2008] FamCA 292

FAMILY COURT OF AUSTRALIA

KORBAN & KORBAN [2008] FamCA 292
FAMILY LAW – CHILDREN –  parenting proceedings – equal time – review of cases before 2006 amendments considering equal time – factors worthy of consideration. 
Family Law Act 1975 (Cth)
M and M (1988) 166 CLR 69;
Seaford & Seaford [2007] FamCA 1460;
Mazorski v Albright [2007] FamCA520;
M & M [2005] FamCA 207;
Handley & Tranter [2007] FamCA 344;
Jann v Yann (1976) FLC 90-027 at 75,120;
Foster v Foster (1977) FLC 90-281 at 76,511;
H v H-K (1990) 13 Fam LR 786;
Padgen v Padgen (1991) FLC 92-231;
Forck v Thomas (1993) 16 Fam LR 516;
Unreported decision of the Full Court (15 April 1997) in C v B;
F v B [2000] FamCA 676;
McGlynn v McGlynn, unreported 13 December 2001 per Le Poer Trench J;
M v G, unreported 15 July 2003 per Kay J;
H v H (2003) FMCA Fam 41;
APPLICANT: Mr Korban
RESPONDENT: Mrs Korban
FILE NUMBER: SYF 4503 of 2004
DATE DELIVERED: 28 April 2008
PLACE HEARD: Sydney
JUDGMENT OF: Moore J
HEARING DATE: 21 & 22 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Todd
SOLICITOR FOR THE APPLICANT: Jordan Djundja
COUNSEL FOR THE RESPONDENT: Mr Batey
SOLICITOR FOR THE RESPONDENT: John R Quinn & Co.

Orders

  1. The child … born … May 2001 (‘the child’) is to live with her father at all times when she is not living with her mother according to these orders.

  2. During school terms the child is to live with her mother as follows and at all other times with her father:

    (i)       in week 1 from after school Thursday until before school Monday; and

    (ii)      in week 2 from after school Thursday until before school Friday.

  3. The fortnightly cycle referred to in order 2 hereof is to commence on the first weekend after the commencement of each school term.

  4. Until the mother regains her driver’s licence the father or other adult nominated by him is to be responsible for the child’s delivery and return to and from the mother’s residence whenever applicable [away from the child’s school] and after the mother regains her driver’s licence the responsibility is to be shared equally as agreed. 

By consent:

  1. The parents are to have equal shared parental responsibility for the child.

  2. The child is to spend time between her parents as follows and the other arrangements for the child as set out as follows are to apply:

    (a) school holidays

    (i)one half of all school holidays excluding Christmas school holidays and if agreement cannot be reached between the parties with respect to the child spending time with the mother during school holidays then the mother is to spend time with the child during the first half of all school holidays.

    (b) Christmas holidays

    (i)one half of the Christmas school holidays to comprise one period of two weeks and the second period comprising the balance.

    (c) child’s overseas travel

    (i)neither…

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Details
AGLC
Korban v Korban [2008] FamCA 292
Case
[2008] FamCA 292
Decision Date

CaseChat Overview and Summary

This case concerned parenting orders made by consent between the father and mother of a child born in May 2001. The primary dispute revolved around the specific arrangements for the child's living arrangements and time spent with each parent, particularly during school terms, school holidays, and significant annual events. The orders also addressed practical matters such as transportation, communication, overseas travel, and relocation.

The court was required to determine the precise terms of the parenting orders, reflecting the parties' agreement on equal shared parental responsibility. This involved defining the child's primary residence, the schedule for time spent with each parent during school terms, and the division of time during school holidays, including Christmas and other significant religious observances. Further issues included provisions for parental birthdays, the child's birthday, and communication protocols between the parents and with the child.

The court's reasoning, as evidenced by the detailed orders, was to establish a clear and comprehensive framework for the child's care and contact with both parents. The orders reflect a practical approach to implementing equal shared parental responsibility, aiming to ensure the child maintains meaningful relationships with both parents. This included specific provisions for the exchange of the child, communication methods, and notification requirements for holidays and relocation. The orders also included clauses for the suspension of certain provisions to accommodate specific events, such as public holidays and birthdays, ensuring those occasions could be spent with the relevant parent.

The final orders established a detailed schedule for the child's living arrangements and time with each parent, including provisions for school terms, holidays, and special occasions. These orders were made by consent of the parties, reflecting their agreement on equal shared parental responsibility and the specific arrangements for their child.

Orders

Orders of the court

1.

The child … born … May 2001 (‘the child’) is to live with her father at all times when she is not living with her mother according to these orders.

2.

During school terms the child is to live with her mother as follows and at all other times with her father:

(i) in week 1 from after school Thursday until before school Monday; and

(ii) in week 2 from after school Thursday until before school Friday.

3.

The fortnightly cycle referred to in order 2 hereof is to commence on the first weekend after the commencement of each school term.

4.

Until the mother regains her driver’s licence the father or other adult nominated by him is to be responsible for the child’s delivery and return to and from the mother’s residence whenever applicable [away from the child’s school] and after the mother regains her driver’s licence the responsibility is to be shared equally as agreed.

By consent:

5.

The parents are to have equal shared parental responsibility for the child.

6.

The child is to spend time between her parents as follows and the other arrangements for the child as set out as follows are to apply:

(a) school holidays

(i) one half of all school holidays excluding Christmas school holidays and if agreement cannot be reached between the parties with respect to the child spending time with the mother during school holidays then the mother is to spend time with the child during the first half of all school holidays.

(b) Christmas holidays

(i) one half of the Christmas school holidays to comprise one period of two weeks and the second period comprising the balance.

(c) child’s overseas travel

(i) neither the father nor the mother shall do any act or thing to remove the child from the Commonwealth of Australia unless specifically authorised to do so in writing from one party to the other.

(d) Mother’s Day

(i) Mother’s Day of each and every year from 8.00 am until 6.00 pm to be spent with the mother, even if it is a weekend when the child is not spending time with the mother.

(e) Father’s Day

(i) Father’s Day of each and every year from 8.00 am until 6.00 pm to be spent with the father, even if it is a weekend when the child is not spending time with the father.

(f) child's birthday

(i) for a period of not less than two (2) hours on the child’s birthday to be spent with the parent who is otherwise not spending time with the child.

(g) Father's birthday

(i) for a period of not less than two (2) hours on the father’s birthday to be spent with the Father in the event that the child is with the mother.

(h) Mother's birthday and mother’s Name Day

(i) for a period of not less than two (2) hours on the mother’s birthday and also on the mother’s Name Day if the child is otherwise with the father.

(i) Christmas day

(i) commencing at 3.00 pm Christmas Eve and concluding at 3.00 pm Christmas Day in the year 2009 and each alternate odd ending year thereafter with the Mother and otherwise with the father;

(ii) commencing at 3.00 pm Christmas Day and concluding at 3.00 pm Boxing Day in the year 2008 and each alternate even ending year thereafter with the Mother and otherwise with the father;

(j) New Year’s Eve

(i) commencing at 3.00 pm on New Year’s Eve and concluding at 3.00 pm New Year’s Day in the year 2009 and each alternate uneven ending year thereafter with the mother and otherwise with the father.

(ii) commencing at 3.00 pm New Year’s Day and concluding at 3.00 pm on 2nd January in the year 2010 and each alternate even ending year thereafter with the mother and otherwise with the father.

(k) Greek Easter

(i) commencing at 3.00 pm on Good Friday and concluding at 3.00 pm on Holy Saturday in the year 2010 and each alternate even ending year thereafter with the mother and otherwise with the father;

(ii) commencing at 3.00 pm on Holy Saturday and concluding at 3.00 pm on Easter Sunday in the year 2009 and each alternate uneven ending year thereafter with the mother and otherwise with the father.

(l) further time spent with father and the mother

(i) such further time as the parties may from time to time agree between themselves.

(m) communication with child

(i) telephone communication at all reasonable times for both parties;

(ii) each parent is to cause the child to telephone the other party daily when the child is on holidays with that parent.

(n) holiday contact

(i) the father and the mother are each to provide to the other in writing a telephone number and address during periods when the child lives with or spends time with either parent during school holiday time;

(ii) if a party wishes to take the child on holidays pursuant to these orders such party shall give to the other at least four (4) weeks notice of the their intention to take the child from the Sydney metropolitan area during such school holiday period and to give effect to this order such party shall give to the other:

i. the duration of the child’s stay outside the Sydney metropolitan area which is defined as being within a weekend return drive from Sydney;

ii. the place of stay including particulars of address and contact number;

iii. particulars of care arrangements for the child;

iv. the identity of anyone supervising the child other than the mother or father;

v. flight particulars and any other relevant details;

vi. confirmation that the other party is able to contact the child by mobile telephone and that the party taking the child on holidays as provided for in this order shall do all acts and things to ensure that the mobile phone is always available for the child to receive or make telephone calls to the other parent.

(o) relocation

(i) either party is not to relocate from where they live without forthwith first furnishing to the other written notice of the change of address and telephone numbers where they can be reached and shall also ensure that each party gives a land line and mobile phone number to allow the child to be contacted at all relevant times.

(p) suspension of orders

(i) relevant orders be suspended:

i. during such times as the child is living with either the father or the mother during the school holidays;

ii. from 8.00 am until 6.00 pm on Father’s Day each and every year, even if it is a weekend when the child is not spending time with the father;

iii. from 8.00 am until 6.00 pm on Mother’s Day each and every year, even if it is a weekend when the child is not spending time with the mother;

iv. for a period of two (2) hours on the child’s birthday;

v. during Christmas Eve/Christmas Day arrangements;

vi. on the occasion of the father’s birthday or mother’s birthday or the mother’s Name Day.

vii. on the occasion of the child’s Name Day and Greek Easter.

(q) additional matters for equal shared parental responsibility

(i) each party is to immediately notify the other if either child is seriously ill or is to be admitted into hospital at such times as the child is living with that party.

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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