FAMILY COURT OF AUSTRALIA
| LODDINGTON & DERRINGFORD (NO. 2) | [2008] FamCA 925 |
| FAMILY LAW – CHILDREN - Best interests – Inability of parties to communicate – Rebuttal of equal Shared Parental Responsibility – examination of what is parental responsibility –Meaningful Relationship |
| Family Law Act 1975 (Cth) |
| Fork & Thomas (1993) FLC 92-372 Godfrey & Sanders (2007) 208 FLR 287 Goode and Goode (2006) FLC 93-286; (2007) 36 Fam LR 422 H and H (2003) FLC 93-168 M and K [2007] FMCAFam 26 Mazorski & Albright (2008) 37 Fam LR 518 |
| APPLICANT: | Ms Loddington |
| RESPONDENT: | Mr Derringford |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | AYC | 390 | of | 2007 |
| DATE DELIVERED: | 31 October 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 11, 12, 13 & 14 AUGUST 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MS WHEELER |
| SOLICITOR FOR THE APPLICANT: | LORETTA TERRILL FAMILY LAWYERS |
| COUNSEL FOR THE RESPONDENT: | MR ALLEN |
| SOLICITOR FOR THE RESPONDENT: | TOLHURST DRUCE & EMMERSON |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | MR PUCKEY |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | MORRISON & SAWYERS |
Orders
That all existing parenting orders are discharged.
These parenting orders relate to the children M and E both born … June 2004.
That until the children’s birthday in June 2011, the mother have sole responsibility for making decisions concerning:
(a) The education of the children including matters connected with their attendance at pre-school/kindergarten and primary school; and
(b) The health of children,
but that otherwise, the mother and the father have equalled shared parental responsibility for the children.
That notwithstanding that the mother has sole parental responsibility for the matters referred to in paragraph (3), in respect of all such decisions, through the communication book, the mother shall:
(a)advise the father of her proposal and invite his response allowing at least 14 days before a decision has to be made (except in the case of a health emergency);
(b) if the father offers a response, consider it; and
(c) notify the father of her decision.
For the purposes of paragraph (4), if the father receives the advice of the mother referred to in paragraph (4)(a), he shall have 7 days in which to respond through the communication book (or by letter if the communication book is not going to be available within the time required for a response).
That for the avoidance of doubt, decisions concerning health issues shall relate only to those requiring treatment or counselling from a health professional other than day to day medical matters normally treated by a general medical practitioner.
That the father have the right to attend all appointments and functions relating to the health and education of the children regardless of whether or not he has been a participant in the decision for the attendance of the children upon the health practitioner or at the educational facility.
That each party keep the other advised of any illness or injury requiring medical attention and if so, authorise the medical practitioner for the children to provide…
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- AGLC
- Loddington & Derringford (No 2) [2008] FamCA 925
- Case
- [2008] FamCA 925
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent of parental responsibility each parent would have for decision-making concerning the children's education and health, and to establish specific time arrangements for the father with the children. The court also needed to address the communication protocols between the parents regarding these decisions and the children's well-being, as well as the financial responsibility for any recommended post-program counselling.
Cronin J ordered the discharge of all existing parenting orders. The mother was granted sole responsibility for decisions concerning the children's education and health, with specific communication requirements for the father to be consulted before decisions were made, allowing him a period to respond. The father was granted the right to attend all appointments and functions related to the children's health and education. The children were ordered to live with the mother, and detailed time arrangements were set for the father's time with the children, including specific holiday periods and birthdays, with certain periods suspended on Mother's Day and the mother's birthday. The court also mandated the completion of a Parenting Order Program (POPS) and any subsequent recommended counselling or mediation, with the father to bear the costs of any such ongoing support. A communication book was to be used to facilitate information sharing between the parents. All other outstanding applications were dismissed, and the Independent Children's Lawyer was discharged.
Orders
Orders of the court
1.
That all existing parenting orders are discharged.
2.
These parenting orders relate to the children M and E both born … June 2004.
3.
That until the children’s birthday in June 2011, the mother have sole responsibility for making decisions concerning:
(a) The education of the children including matters connected with their attendance at pre-school/kindergarten and primary school; and
(b) The health of children,
but that otherwise, the mother and the father have equalled shared parental responsibility for the children.
4.
That notwithstanding that the mother has sole parental responsibility for the matters referred to in paragraph (3), in respect of all such decisions, through the communication book, the mother shall:
(a) advise the father of her proposal and invite his response allowing at least 14 days before a decision has to be made (except in the case of a health emergency);
(b) if the father offers a response, consider it; and
(c) notify the father of her decision.
5.
For the purposes of paragraph (4), if the father receives the advice of the mother referred to in paragraph (4)(a), he shall have 7 days in which to respond through the communication book (or by letter if the communication book is not going to be available within the time required for a response).
6.
That for the avoidance of doubt, decisions concerning health issues shall relate only to those requiring treatment or counselling from a health professional other than day to day medical matters normally treated by a general medical practitioner.
7.
That the father have the right to attend all appointments and functions relating to the health and education of the children regardless of whether or not he has been a participant in the decision for the attendance of the children upon the health practitioner or at the educational facility.
8.
That each party keep the other advised of any illness or injury requiring medical attention and if so, authorise the medical practitioner for the children to provide all such information as a parent would normally be entitled to in respect of the children.
9.
That the mother and the father be at liberty to produce a copy of these orders to any such health practitioners and education authorities.
10.
That the children live with the mother.
11.
That the father spend time with and communicate with the children:
(a) until 1 February 2010 from 12 noon on Friday until 6.00pm on the following Sunday in the first week of a two week cycle and from midday on Wednesday until 6.00pm on Friday in the second week of the two week cycle;
(b) after 1 February 2010, from the conclusion of school on Friday until the commencement of school on Monday morning in the first week of a two week cycle and from the conclusion of school on Wednesday until the commencement of school on the following Friday morning in the second week of the two week cycle;
(c) from 4.00pm on 25 December 2008 until 4.00pm on 26 December 2008 and for a similar period in each alternate year thereafter;
(d) from 4.00pm on 24 December 2009 until 4.00pm on 25 December 2009 and for a similar period in each alternate year thereafter;
(e) from 5.00pm on the Saturday night prior to the commencement of Father’s Day until 5.00pm on the Sunday of Father’s Day weekend.
(f) On the birthday of the children and on the father’s birthday from 3.30pm to 7.00pm or at such other times as the parties may agree;
(g) From 3.30pm on the Thursday prior to Good Friday until 3.30pm on Easter Saturday in the year 2009 and for a similar period in each alternate year thereafter;
(h) From 3.30pm on Easter Saturday until 3.30pm on Easter Monday in the year 2010 and for a similar period in each alternate year thereafter.
12.
That any time to be spent by the father with the children pursuant to paragraph (11) hereof is suspended:
(a) from 5.00pm on the Saturday evening before Mother’s Day until 5.00pm on the Sunday of Mother’s Day; and
(b) on the mother’s birthday from 3.30pm to 7.00pm or at such other times as the parties may agree
13.
For the purposes of all changeovers other than when the children are collected from and returned to school in the future, the father collect the children from the home of the mother at the commencement of the period and the mother or her nominee collect the children from the father’s home at the conclusion of the period.
14.
That each party keep the other advised of any changes to their current residential address or telephone numbers including mobile telephone numbers.
15.
That each parent complete the Parenting Order Program (POPS) upon which they have embarked.
16.
That upon the completion of the POPS program, each party pursue and complete any parenting, counselling or education or mediation as may be recommended by the POPS program facilitator. If there is any cost associated with such ongoing counselling, therapy or mediation, the father shall be responsible for it.
17.
That each party make entries in a communication book to travel with the children setting out details of:
(a) the matters referred to in paragraph (4) and (5) hereof;
(b) any illness or injury of the child;
(c) any medication being taken by the child;
(d) any forthcoming social events of the child that may occur during the period of time with the other parent;
(e) any particular behavioural problems that have occurred since the children last were exchanged of such a nature that the other parent should know about and be conscious of.
18.
That all other applications outstanding between the parties are otherwise dismissed and removed from the list of cases awaiting a hearing.
19.
That the Independent Children’s Lawyer be discharged.
20.
That 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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