FAMILY COURT OF AUSTRALIA
| KRAWIEC & HAYKAL | [2016] FamCA 104 |
| FAMILY LAW – CHILDREN – Best interests – Parental responsibility – With whom a child spends time – With whom a child communicates – Where there is one subject child who is 13 years of age – Where the mother has been the primary carer of the child since separation – Where there is longstanding, ongoing hostility and conflict between the parents – Where it is more probable that not that both parents have engaged in family violence – Where there is no possibility of the parents being able to make any joint decisions about any aspect of the child’s care or welfare – Where it is not in the best interests of the child for the parents to have equal shared parental responsibility –Where the mother does not have the capacity to be able to support a relationship between the father and the child – Where the father has not participated in family therapy – Where the child is reasonably mature and has clearly expressed that she does not want to spend time with the father – Where the Court is of the view that the appropriate arrangement coincides with the child’s wishes – Orders made for the child to live with the mother and for the mother to have sole parental responsibility for the child – Orders made for the child to spend time with and communicate with the father in accordance with her wishes – Orders made restraining the father from attempting to arrange any time with the child. FAMILY LAW – CHILDREN – COSTS – Where the ICL seeks an order that the mother pay one half of their costs in these proceedings – Where the father has been granted a waiver of his one half of the costs of the ICL – Where the court is of the view that it is not just within the meaning of s 117(2) to make an order for costs against the mother in favour of the ICL – Where the mother seeks an order that the father pay her costs – Where the father already owes substantial costs that the mother has not been able to recover – Order made that the father pay part of her costs. FAMILY LAW – PRACTICE AND PROCEDURE – Application for a vexatious proceedings order in relation to parenting matters pursuant to s 102QB(2) – Where a vexatious proceedings order had been made against the father in respect of financial matters – Application dismissed. |
| Family Law Act 1975 (Cth) – ss 4AB, 60B, 60CC, 61B, 61DA, 65DAA, 102Q(1), 102QB(2), 117(2) |
| Goode and Goode (2006) FLC 93-286 Haykal & Krawiec (No 2) [2015] FamCA 266 MRR v GR (2010) 42 Fam LR 531 |
| APPLICANT: | Ms Krawiec |
| RESPONDENT: | Mr Haykal |
| INDEPENDENT CHILDREN’S LAWYER: | KD Holmes |
| FILE NUMBER: | SYC | 731 | of | 2009 |
| DATE DELIVERED: | 26 February 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 10 & 11 August 2015 |
REPRESENTATION
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- Case
- [2016] FamCA 104
- Decision Date
CaseChat Overview and Summary
The court was required to determine the most appropriate parenting arrangements for N, specifically addressing parental responsibility, with whom N would live, spend time, and communicate. Key issues included whether equal shared parental responsibility was in N's best interests, given the parental conflict and the mother's perceived inability to support a relationship between N and the father. The court also had to consider the father's lack of participation in family therapy and N's expressed wishes. Furthermore, the court was asked to rule on applications for costs concerning the Independent Children's Lawyer and the mother's own costs, as well as an application for a vexatious proceedings order against the father.
Johnston J reasoned that it was not in N's best interests for the parents to have equal shared parental responsibility due to their ongoing conflict and the mother's limited capacity to foster a relationship between N and the father. The court gave significant weight to N's expressed wishes, noting her maturity and clear desire not to spend time with the father. Applying the principles of the *Family Law Act 1975*, the court concluded that N living with her mother and the mother having sole parental responsibility was the most appropriate arrangement. The father was to have contact with N in accordance with her wishes, and specific orders were made to restrain the father from attempting to arrange time with N and from attending at her home, school, or business premises without invitation.
In relation to costs, the court dismissed the Independent Children's Lawyer's application for costs against the mother, deeming it unjust. The father was ordered to pay part of the mother's costs, acknowledging that she had been unable to recover substantial costs previously owed by him. The mother's application for a vexatious proceedings order against the father was dismissed. Consequently, N was ordered to live with her mother, who was granted sole parental responsibility. The father was to spend time and communicate with N as she wished, with specific limitations and restraints imposed on his contact and attendance at certain locations.
Orders
Orders of the court
1.
The following parenting orders are made in relation to N born on … 2002 (“the child”).
2.
All previous parenting orders are discharged.
Parental Responsibility
3.
The mother shall have sole parental responsibility for the child.
4.
The mother shall inform the father by email of all major long term decisions about the child within 7 days of making the decision.
Live with
5.
The child shall live with her mother.
Spend time
6.
The child shall spend time with her father in accordance with her wishes and at such times and places as the child communicates to her father.
7.
The father is restrained from attempting to arrange any time with the child directly or with any member of the child’s family including her mother.
Communication
8.
The child is at liberty to telephone or email her father at any time.
9.
The mother shall ensure that the father’s telephone number and email address are kept in a place in her home which is accessible by the child.
10.
The father may communicate with the child by way of sending her letters, cards and gifts. For the purpose of this order:
a. The father is to post such written communication to the mother’s business premises but shall not attend personally at those premises to deliver the item;
b. The frequency of those communications shall be no more than one per calendar month;
c. The mother shall ensure that all cards, letters and gifts are delivered personally to N.
11.
The father is otherwise restrained from contacting the child.
School
12.
The father shall not attend at the child’s school, home or work premises (including the mother’s business premises) except by invitation from the child.
13.
Until the child attains 16 years of age, the mother shall provide the father with copies of the child’s school reports by email. The mother shall provide details of the father to N’s school and request that these be entered into N’s enrolment records. Upon the child attaining 16 years of age she may determine whether or not her father is to continue to receive information regarding her schooling.
Overseas travel
14.
The mother is permitted to collect the child’s Australian Passport currently held by the Sydney Registry of this Court within five days of the date of these orders and retain such passport in her possession.
15.
The mother is permitted to travel overseas with the child.
16.
The mother is permitted to renew the child’s Australian passport without the father’s signature.
Counselling
17.
The child is permitted to re-engage with Dr D.
Vexatious proceedings order
18.
The mother’s application for a vexatious proceedings order pursuant to s 102QB(2) of the Family Law Act 1975 to the effect that the father be prohibited from instituting any further parenting proceedings in a court having jurisdiction under the Act be dismissed.
Costs
19.
The Independent Children’s Lawyer’s application for an order that the mother pay one half of its costs be dismissed.
20.
That the father pay to the mother her costs of the proceedings before Johnston J on 25 July 2014 in an amount as agreed, or failing agreement as assessed.
21.
That otherwise the mother’s application for an order that the father pay her costs be dismissed.
Background
Background to the litigation
Full text does not contain this section.
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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