FAMILY COURT OF AUSTRALIA
| LANSA & CLOVELLY | [2010] FamCA 80 |
| FAMILY LAW – CHILDREN – Parenting orders – International Relocation – Best interests of these children require significant, regular time with each parent – Living overseas will likely have an adverse impact on the children’s relationship with the father – Presumption of equal shared parental responsibility is not rebutted – Children’s best interests call for stability – International relocation is not in best interests – Arrangements in Australia call for regular time with father but majority time with the mother – Two week, one week arrangement |
| Family Law Act 1975 (Cth) ss 4, 60CC, 61B, 61C, 61D, 61DA, 65DAA, 65DAC, 65DAE |
| AIF v AMS (1999) 24 FamLR 756 AMS v AIF (1999) 199 CLR 160 Chappell and Chappell (2008) FLC 93-382 Eddington and Eddington (No 2) (2007) FLC 93-349 Fitzroy and Fitzroy [2009] FamCA 954 G v C [2006] FamCA 994 Godfrey v Sanders [2007] FamCA 102 Marsden and Winch (No. 3) [2007] FamCA 1364 Mazorski v Allbright [2007] FamCA 520 McCue v Costa (2009) FLC 93-405 MRR v GR [2009] HCATrans 316 Pitkin and Hendry [2008] FamCA 186 U v U (2002) 211 CLR 238 |
| APPLICANT: | Ms Lansa |
| RESPONDENT: | Mr Clovelly |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Toomey |
| FILE NUMBER: | BRC | 4856 | of | 2008 |
| DATE DELIVERED: | 11 February 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 24 – 25 November 2009 |
| WRITTEN SUBMISSIONS RECEIVED: | ICL: 11 December 2009 Respondent: 24 December 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr P.J. Baston |
| SOLICITOR FOR THE APPLICANT: | Middletons Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr J. Linklater-Steele |
| SOLICITOR FOR THE RESPONDENT: | Rimmer Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr G.J. Fleetwood |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Schultz Toomey O’Brien Lawyers |
Orders
IT IS ORDERED THAT
Parental Responsibility.
The parents shall have equal shared parental responsibility for the children of the marriage Y born … December 1996; C born … October 1998 and S born … October 2000 in respect of all “major long-term issues” as defined in the Family Law Act 1975 (as amended).
The parents shall each have, during all such time that the children are in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.
Agreement as to Co-Parenting Time and Communication
The children shall live with, spend time with, and/or communicate with each of their parents for such periods of time, or in such manner, as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these orders.
Co-Parenting Time
The application by the Mother, that the children live in the United States of America, is dismissed.
During school term time, the children shall live with each of their parents during consecutive three-week periods as follows:
(a)For the first two weeks of each such period with the mother and for the third week of each such period with…
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- Lansa & Clovelly [2010] FamCA 80
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- [2010] FamCA 80
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CaseChat Overview and Summary
The court was required to determine the nature of parental responsibility for the children, specifically in relation to "major long-term issues" as defined by the *Family Law Act 1975* (Cth). Additionally, the court needed to establish a framework for the children's co-parenting time with each parent, including arrangements during school terms and school holidays, as well as provisions for communication between the children and the non-resident parent. The court also had to consider the mother's application for the children to reside in the United States.
Murphy J ordered that the parents share equal parental responsibility for major long-term issues concerning the children. For issues not classified as major long-term, each parent would have responsibility while the children were in their care. The mother's application for the children to live in the United States was dismissed. The court then detailed a specific schedule for the children's living arrangements, involving consecutive three-week periods with each parent during school terms, and a division of school holidays. Provisions were also made for face-to-face time on birthdays and other significant days, and for communication between the children and the non-resident parent. All other extant applications for parenting orders were dismissed.
Orders
Orders of the court
IT IS ORDERED THAT
Parental Responsibility.
1.
The parents shall have equal shared parental responsibility for the children of the marriage Y born … December 1996; C born … October 1998 and S born … October 2000 in respect of all “major long-term issues” as defined in the Family Law Act 1975 (as amended).
2.
The parents shall each have, during all such time that the children are in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.
Agreement as to Co-Parenting Time and Communication
3.
The children shall live with, spend time with, and/or communicate with each of their parents for such periods of time, or in such manner, as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these orders.
Co-Parenting Time
4.
The application by the Mother, that the children live in the United States of America, is dismissed.
5.
During school term time, the children shall live with each of their parents during consecutive three-week periods as follows:
(a) For the first two weeks of each such period with the mother and for the third week of each such period with the father;
(b) The consecutive three-week periods shall commence on Monday 24 January, 2010 (irrespective of whether same is a public holiday, pupil-free day or included in any school holiday period) and shall thereafter be calculated by ignoring all school holiday periods; and
(c) Each respective two-week and one-week period shall commence upon the conclusion of school, and commence at the commencement of school, on Monday.
6.
During each and all school holiday periods, the children shall live with each of the mother and father for one half of each, with the mother having the first half in all even-numbered years and the second half in all odd-numbered years and with such time to commence at 9.00am on the Saturday after school ceases and conclude at 5.00pm on the Sunday before school commences.
7.
Save as otherwise agreed in writing between the parties, the time spent by the children with each of their parents in accordance with these orders, shall alter so as to permit the children to spend face-to-face time with the parent with whom they are not residing:
(a) For four hours on each of each child’s birthday and each parent’s birthday if any is not a school day, and from after school until 7.00pm if any is a school day; and
(b) For four hours on each of Mother’s Day and Father’s Day; and
(c) For an equal amount of time with each parent between 5.00pm on 24 December and 5.00pm on 26 December.
Changeovers
8.
Changeover in respect of all periods of time shall be effected:
(a) during term time, by delivery or collection from the children at their respective schools on Mondays;
(b) during holiday time, or on any occasion when school is closed, by the parent with whom the children have been living delivering the children to the residence of the other parent and the other parent returning the children to the first parent’s residence at the conclusion of the period of time.
Communication
9.
The parties shall do all things as might reasonably be necessary to facilitate the children communicating with the parent with whom they are not residing at all such reasonable times, and via such means, as the children might reasonably request from time to time.
10.
Each party shall do all such things and sign all such documents as may be necessary or required to:
(a) Authorise each parent to communicate with, and receive communication from, any doctor or health professional of whatever type, whom the children consult;
(b) To speak to, and receive oral or written communication from, any school or other educational institution attended by the children;
(c) Make the other parent aware of the times, dates and places of any sporting or extra-curricular activities engaged in by the children, and to permit attendance at, and reasonable participation in, any such activities;
(d) Keep the other parent appraised of their residential address and telephone contact number;
(e) Notify the other parent should either child suffer any medical emergency, serious illness, or other significant issue affecting either child’s health or welfare, whilst in their care.
IT IS FURTHER ORDERED THAT
Other Applications
11.
This matter be listed before a Registrar at a time and on a date to be advised in writing to each of the parties, for the making of directions for the further progress of any applications (other than in respect of parenting orders) transferred to this court from the Federal Magistrates Court.
Dismissal of Other parenting Applications
12.
All extant applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.
Other Orders
13.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
14.
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.
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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