FEDERAL CIRCUIT COURT OF AUSTRALIA
| LONG & LONG | [2014] FCCA 1734 |
| Catchwords: FAMILY LAW – Final parenting orders – limited issues to be determined – considerations as to parental responsibility (initially sole parental responsibility for a limited period, then moving to equal shared parental responsibility) – agreement by Counsel (for the Mother and the ICL) that the Court has jurisdiction to make an order initially for sole parental responsibility but which later moves to an order for equal shared parental responsibility. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC(1) & (2), 60CC(3)(a) – (k) |
| Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 Slater v Light (2012) 45 Fam LR 41 |
| Applicant: | MR LONG |
| Respondent: | MS LONG |
| File Number: | PAC 4450 of 2012 |
| Judgment of: | Judge Neville |
| Hearing dates: | 23-24 June 2014 |
| Date of Last Submission: | 24 June 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 25 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: |
| Counsel for the Respondent: | Mr Kelly |
| Solicitors for the Respondent: | Fowler Predny, Morisset, NSW |
| Counsel for the Independent Children’s Lawyer: | Ms M Neville |
ORDERS
Parental responsibility
For a period of eighteen months from the date of these orders, the Mother is to have sole parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2010 ("the children").
During the period in which the Mother holds sole parental responsibility, the Father is hereby authorised to obtain access to:
(a)all school reports and educational information in relation to either child ordinarily available to a parent; and
(b)all medical, dental and other allied health information pertaining to either child
During the period in which the Mother holds sole parental responsibility, she is required to:
(a)Consult with the Father prior to making any decision as to education, medical or dental treatment for either child including informing the Father of any advice received and the names of any service providers or treating professionals consulted;
(b)Inform the Father of any decision taken as to education, medical, dental or other allied health treatment for either child within a reasonable period of taking such decision;
(c)Do all acts and things necessary to facilitate the Father's access to the information referred to at order 2 above as may be required by the children's service providers or treating professionals.
These orders are sufficient authority for any educational, medical, dental or other professional providing services to or treating the children to communicate with the parties and to provide to parties at their request any information that would ordinarily be provided to a parent.
At the expiration of order 1 the Mother and the Father are to have equal shared parental responsibility for the children.
Live with
The children are to live with the Mother.
Time with
Subject to any…
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- Long and Long [2014] FCCA 1734
- Case
- [2014] FCCA 1734
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CaseChat Overview and Summary
The court was required to determine the specific terms of parental responsibility, including whether one parent should have sole responsibility for a period, and the nature and extent of the other parent's access to information about the children. Further issues included the children's primary residence, the schedule for the children spending time with each parent, arrangements for changeovers, and provisions for special events and travel. The court also addressed communication protocols between the parents and mechanisms for dispute resolution.
The court ordered that for a period of eighteen months, the Mother would have sole parental responsibility for the children, with the Father authorised to access educational and medical information. During this period, the Mother was required to consult with the Father on significant decisions regarding the children's education and health and to keep him informed. Following this period, the parents were to have equal shared parental responsibility. The children were to live with the Mother, and detailed provisions were made for the Father's time with the children, including specific schedules that evolved over time, arrangements for school holidays, and provisions for special days such as birthdays and Father's Day. The court also made orders regarding communication between the parents and children during periods of travel, and stipulated that both parents were to refrain from making derogatory remarks about each other or their families in the presence of the children. Both parents were also required to enrol in a parenting after separation course. The court discharged an earlier order placing the children on the Airport Watch List and refused an application for costs by the Independent Children's Lawyer.
Orders
Orders of the court
Parental responsibility
1.
For a period of eighteen months from the date of these orders, the Mother is to have sole parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2010 ("the children").
2.
During the period in which the Mother holds sole parental responsibility, the Father is hereby authorised to obtain access to:
(a) all school reports and educational information in relation to either child ordinarily available to a parent; and
(b) all medical, dental and other allied health information pertaining to either child
3.
During the period in which the Mother holds sole parental responsibility, she is required to:
(a) Consult with the Father prior to making any decision as to education, medical or dental treatment for either child including informing the Father of any advice received and the names of any service providers or treating professionals consulted;
(b) Inform the Father of any decision taken as to education, medical, dental or other allied health treatment for either child within a reasonable period of taking such decision;
(c) Do all acts and things necessary to facilitate the Father's access to the information referred to at order 2 above as may be required by the children's service providers or treating professionals.
4.
These orders are sufficient authority for any educational, medical, dental or other professional providing services to or treating the children to communicate with the parties and to provide to parties at their request any information that would ordinarily be provided to a parent.
5.
At the expiration of order 1 the Mother and the Father are to have equal shared parental responsibility for the children.
Live with
6.
The children are to live with the Mother.
Time with
7.
Subject to any other agreement in writing between the parties, the children are to spend time with the Father in a fortnightly cycle as follows:
From the date of these orders until 7 October 2014:
(a) From 9:00am Sunday until 3:00pm Monday in the first week; and
(b) From 9:00am until 3:00pm Monday in the second week.
From 7 October 2014 until X commences school or until 27 January 2015 whichever is the soonest:
(c) From 9:00am Sunday until 3:00pm Monday in the first week; and
(d) From 9:00am Monday until 9:00am Tuesday in the second week.
From the time X commences school until 13 July 2015:
(e) From 4:00pm Saturday until the commencement of school Monday in the first week; and
(f) From after school Monday until the commencement of school Tuesday in the second week.
From 13 July 2015 and thereafter
(g) From 4:00pm Saturday until the commencement of school Tuesday in the first week; and
(h) From after school Monday until the commencement of school Tuesday in the second week; and
(i) Any additional time that may be agreed between the parties.
8.
Commencing from the school holiday period falling at the end of term 1 in 2015, the time referred to above is suspended during all school holiday periods and instead the children will spend time with the Father as follows:
During the school holiday periods falling at the end of terms 1, 2 and 3 in 2015;
(a) For a block period of four (4) days in each of the school holiday periods on dates as agreed and failing agreement during the first week of each of those holiday periods.
During the school holiday period falling at the end of term 4 in 2015:
(b) For a block period of 10 days on dates as agreed and failing agreement during the first 10 days of the school holiday period.
During all school holiday periods thereafter
(c) For half of each school holiday period on dates as agreed and failing agreement the children to spend the first half of the school holiday period with the Father in even numbered years and the second half of the school holiday period with the Father in odd numbered years.
The Court notes for the sake of clarity that it is intended by Order 8(c) that the children will spend Christmas Day with the Father in even numbered years and with the Mother in odd numbered years.
Changeovers
9.
For the purpose of implementation of orders 7 and 8:
(a) Until the X commences at school, all changeovers are to occur at (omitted) or in the event of inclement weather, at (omitted) Shopping Centre with the Mother to send an SMS text message to the Father to confirm the changeover point;
(b) Once X commences at school the school will be the changeover point for all time that commences at the end of school or concludes at the beginning of school and for all other periods, changeovers are to occur at (omitted) or in the event of inclement weather, at (omitted) Shopping Centre with the Mother to send an SMS text message to the Father to confirm the changeover point.
Special events and dates
10.
If Mother's Day falls on a weekend when the children would otherwise be spending time with the Father, the Father's time is suspended for that weekend.
11.
If Father's Day falls on a day when the children would otherwise not be spending time with the Father, the children are to spend time with the Father from 9:00am to 6:00pm each Father's Day.
12.
If the children are not otherwise spending time with the Father on X’s birthday, they will spend time with him for 2 hours on her birthday.
13.
If the children are not otherwise spending time with the Father on Y’s birthday they will spend time with him for a period of up to 2 hours on her birthday unless the children are travelling overseas in which case the children are to spend 2 hours with the Father on a day during the week prior to departure.
14.
If the children are not otherwise spending time with the Father on the Father's birthday, then the children will spend time with him for 2hrs on his birthday.
15.
Commencing from 7 October 2014, once in every three month period the Father is permitted to travel to Queensland with the children for a block period of up to 5 days upon the Father giving at least 28 days’ notice of the date of travel to Mother.
16.
Any travel authorised by order 15 above is to occur at a time including a day or days on which the Father is already spending time with the children.
17.
For the purpose of implementing order 15 above the Father is to provide to the Mother the address and contact details of any place where he and the children will be staying throughout the period of travel.
18.
The Mother is permitted to travel to (country omitted) with the children as follows:
From the date of these orders until X commences school:
(a) For a block period of up to two (2) weeks upon giving the Father at least 28 days’ notice of the date of travel to the Mother with the Father's time with the children to be suspended during the period of travel.
From the date X commences school:
(b) For up to half of each school holiday period.
19.
For the purpose of implementing order 18 above at least two (2) weeks prior to departure the Mother is to provide to the Father a copy of the children's return travel tickets together with a copy of any itinerary that she may hold and the address and contact details of any place where she and the children will be staying throughout their travel.
20.
Unless the children are travelling as allowed by orders 15 or 18 above, they are to communicate with the Father each Thursday night between the hours of 6:00pm and 7:00pm by either telephone or Skype or equivalent with the Mother to initiate the communication to the Father.
21.
During any period of travel allowed by order 15 above, the children are to communicate with the Mother by telephone or Skype or equivalent no less than every second day with the Father to initiate the communication to the Mother.
22.
During any period of travel allowed by order 18 above the children are to communicate with the Father by telephone or by Skype or equivalent no less than every 3 days with the Mother to initiate the communication to the Father.
Requirements during the period of sole parental responsibility
Attendance at children's activities
23.
Each parent is to keep the other informed as to all sporting, religious, cultural and educational events involving or relating to the children and any invitations extended to either child such as children's birthday parties.
24.
That each parent be entitled to attend all events involving the children including but not limited to:
(a) sporting fixtures;
(b) extra-curricular activities that allow for parental attendance or participation;
(c) school functions and events that allow for parental attendance or participation
and the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children's transportation to and from the event unless otherwise agreed upon between the parents.
Restraints and requirements
25.
That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of either of the children and that he will do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of either of the children.
26.
That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of either of the children and that she will do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of either of the children.
27.
Within 28 days of the date of these orders each party is to do all acts and things necessary to enrol in a parenting after separation course run through Unifam or equivalent service provider.
Communication between the parents
28.
That the Father shall ensure the Mother is kept informed of the following matters as soon as is reasonably practicable:
(a) any medical problems or illness suffered by the children, whilst in his care;
(b) any medication that has been prescribed for the children whilst they are in his care;
(c) any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
(d) any social, school or religious functions which the children are to attend;
(e) his residential address;
(f) a contact telephone number;
(g) any other matter relevant to the welfare of the children.
29.
That the Mother shall ensure the Father is kept informed of the following matters as soon as is reasonably practicable:
(a) any medical problems or illness suffered by the children, whilst in her care;
(b) any medication that has been prescribed for the children whilst they are in her care;
(c) any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
(d) any social, school or religious functions which the children are to attend;
(e) her residential address;
(f) a contact telephone number;
(g) any other matter relevant to the welfare of the children.
Dispute resolution
30.
In the event the parents cannot reach a joint decisions about:
(a) a major long-term issue involving the children following the commencement of the period during which they hold equal shared parental responsibility; or
(b) the interpretation, implementation or enforcement of these orders in relation to issues involving the children
each of the parents will do all things necessary to participate in Family Dispute Resolution with a person authorised under the Family Law Act unless the person so authorised declines to provide such a service.
31.
Before an application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the children or of the parties, each of the parents is to:
(a) do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act; and
(b) participate in Family Dispute Resolution with a person authorised under the Family Law Act
Unless the organisation recognised or person so authorised declines to provide such a service.
NOTATIONS:
A. The Court notes that in the event the Father's work commitments preclude him from spending time with either or both of the children he intends to request the Mother care for the children as a first option.
B. The Court notes the Father's intention to move to (omitted) and thereby make the time with arrangements more practicable in the future.
32.
The Order made on 20 November 2012 placing the children X (born (omitted) 2009) and Y (born (omitted) 2010) on the Airport Watch List be discharged.
33.
The ICL’s application for costs is refused.
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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