FAMILY COURT OF AUSTRALIA
| LONSDALE & TREVOR | [2018] FamCA 127 |
| FAMILY LAW – CHILDREN – With whom the child lives and spends time – Equal time considered – Substantial and significant time considered – Best interests of the child are the paramount consideration – Where there are allegations of family violence – Where the mother seeks to change the surname of the children – Equal parental responsibility – Meaning of “meaningful relationship” – Where equal time would not be appropriate – Where a gradual increase in time spent would be appropriate – Where the ages of the children are varied in a significant way so that orders should be made for them individually – Where the parentage of a child is such that the child is not the child of both parties – Consideration of Part VII, Division 12A of the Family Law Act 1975 (Cth) – Where the parties cannot communicate effectively with each other – Where the children have developed secure attachments to each of the parties |
| Evidence Act 1995 (Cth) s 135 Family Law Act 1975 (Cth) pt VII, div 12A, ss 60B(1), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA, 61DA(2), 65DAA, 65DAC, 65DAC(3), 69ZN, 69ZT, 69ZT(1) Family Law Rules 2004 (Cth) r 15.13 |
| Amador & Amador [2009] FamCAFC 196 The Hon Justice Steven Strickland & Kristen Murray, ‘A Judicial Perspective on the Australian Family Violence Reforms 12 Months On’ (Paper presented at the Association of Family and Conciliation Courts 50th annual conference, Los Angeles, 1 June 2013) |
| APPLICANT: | Mr Lonsdale |
| RESPONDENT: | Ms Trevor |
| FILE NUMBER: | ADC | 2815 | of | 2015 |
| DATE DELIVERED: | 7 March 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 27, 28, 29, 30 November 2017 and 1 December 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lewis |
| SOLICITOR FOR THE APPLICANT: | Douglas Hoskins Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Tinning |
| SOLICITOR FOR THE RESPONDENT: | Norman Waterhouse Lawyers |
Orders
That the mother and father have equal shared parental responsibility for B born … 2008 (“B”) and C born … 2015 (“C”) (collectively “the children”).
That the children live with the mother.
That B shall spend time with the father as follows:-
(a) Commencing Thursday 15 May 2018:-
(i)For five (5) consecutive nights from the conclusion of school Thursday (or 3pm if a non-school day) until commencement of school Tuesday (or 9am if a non-school day); and
(ii)During the intervening week, from the conclusion of school Thursday (or 3pm if a non-school day) until the conclusion of B’s football training (or 6pm whichever is later).
That B spend time with each party for one half of all school holiday periods PROVIDED THAT in 2018 and 2019 the Christmas holidays shall be on the basis of alternate weeks unless agreed otherwise.
That C shall spend…
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- Lonsdale and Trevor [2018] FamCA 127
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- [2018] FamCA 127
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CaseChat Overview and Summary
The court was required to determine the terms of orders regarding equal shared parental responsibility, the residence of the children, and the specific time each child would spend with each parent. This included detailed provisions for weekday and weekend time, school holidays, birthdays, and communication between the parents and children. The court also addressed practical matters such as handovers, communication books, medical emergencies, school attendance, and attendance at school or sporting functions.
Berman J applied the principles of the *Family Law Act 1975* (Cth) in making orders for the children's best interests. The orders established a framework for shared parental responsibility, with the children to live with the mother and spend significant time with the father. The detailed time arrangements were phased in over several years, particularly for the younger child, C, to allow for gradual adjustment. The court also made orders to facilitate communication and cooperation between the parents, including provisions for communication books and injunctions to prevent the use of a particular surname.
Orders
Orders of the court
1.
That the mother and father have equal shared parental responsibility for B born … 2008 (“B”) and C born … 2015 (“C”) (collectively “the children”).
2.
That the children live with the mother.
3.
That B shall spend time with the father as follows:-
(a) Commencing Thursday 15 May 2018:-
(i) For five (5) consecutive nights from the conclusion of school Thursday (or 3pm if a non-school day) until commencement of school Tuesday (or 9am if a non-school day); and
(ii) During the intervening week, from the conclusion of school Thursday (or 3pm if a non-school day) until the conclusion of B’s football training (or 6pm whichever is later).
4.
That B spend time with each party for one half of all school holiday periods PROVIDED THAT in 2018 and 2019 the Christmas holidays shall be on the basis of alternate weeks unless agreed otherwise.
5.
That C shall spend time with the father as follows:-
(a) Commencing Thursday 15 May 2018:-
(i) Each Thursday from 2pm until 6pm; and
(ii) Each alternate Sunday from 11am until 6pm;
(b) Commencing Term 1 2019:-
(i) Each Thursday from 2pm until 6pm (or the conclusion of school until 6pm once C commences school); and
(ii) Each alternate weekend from 9am Saturday until 6pm Sunday on the same weekend that B is otherwise in the father’s care pursuant to these orders.
(c) Commencing Term 3 2020:-
(i) Each Thursday from the conclusion of school (or 3pm if a non-school day) until 6pm;
(ii) Each alternate weekend for two (2) consecutive nights from the conclusion of school Friday (or 3pm if a non-school day) until 6pm Sunday on the same weekends that B is otherwise in the father’s care pursuant to these orders.
(d) Commencing Term 1 2022:-
(i) Each Thursday from the conclusion of school (or 3pm if a non-school day) until 6pm;
(ii) Each alternate weekend for three (3) consecutive nights from the conclusion of school Friday (or 3pm if a non-school day) until the commencement of school Monday (or 9am if a non-school day) on the same weekend that B is otherwise in the father’s care pursuant to these orders.
(e) Commencing Term 1 2023:-
(i) Each Thursday from the conclusion of school (or 3pm if a non-school day) until 6pm;
(ii) Each alternate weekend for four (4) consecutive nights from the conclusion of school Friday (or 3pm if a non-school day) until the commencement of school Tuesday (or 9am if a non-school day) on the same weekend B is otherwise in the father’s care pursuant to these orders.
(f) Commencing Term 1 2024:-
(i) Each Thursday from the conclusion of school (or 3pm if a non-school day) until 6pm;
(ii) Each alternate weekend for five (5) consecutive nights from the conclusion of school Thursday (or 3pm if a non-school day) until the commencement of school Tuesday (or 9am if a non-school day) on the same weekend B is otherwise in the father’s care pursuant to these orders.
(g) Until the conclusion of the 2018/2019 Christmas school holiday period C shall spend time with the father during school holiday periods as set out in paragraph 5(b).
(h) Commencing April 2019 C shall spend time with the father during school holidays each alternate weekend for two (2) consecutive nights from 3pm Friday until 6pm Sunday.
(i) Commencing October 2020 C shall spend time with the father during school holidays each alternate weekend for three (3) consecutive nights from 3pm Friday until 9am Monday.
(j) That during the July and October 2021 school holiday periods when C shall spend time with the father for four (4) consecutive nights from 3pm Thursday until 3pm Monday.
(k) Commencing during the 2020/2021 Christmas school holiday period C shall spend time with the father as follows:-
(i) Each alternate weekend for five (5) consecutive nights from 3pm Thursday until 9am Tuesday.
Christmas
6.
Commencing 2018 and each alternate year thereafter B shall spend time with the mother from 10am on 24 December until 10am on 25 December and commencing 2019 and each alternate year thereafter B shall spend time with the father from 10am on 24 December until 10am on 25 December and with the mother from 10am on 25 December until 10am on 26 December.
7.
That during the 2021/2022 Christmas school holiday period C shall spend time with the father for six (6) consecutive nights each alternate week from 3pm Wednesday until 3pm Tuesday.
8.
Commencing during the April 2022 school holiday periods and each school period thereafter C will spend time with each of the parties for one half of all school holidays on a week about basis in line with the period that B spends in the care of each party.
9.
That if the children are in the care of the mother pursuant to these orders on Father’s Day in 2018 THEN they shall spend time with the father from 11am until 6pm PROVIDED that if the children are in the care of the father on Mother’s Day in 2018 THEN the children shall spend time with the mother from 11am until 6pm.
10.
The children are to spend time with the parent who is celebrating their birthday (provided it is a non-school day) from 10am until 4pm and if it is a school day from the conclusion of school until 7pm unless otherwise agreed in writing between the parties.
11.
In the event of either child’s birthday, the children are to spend time with the parent who does not have the care of the children on that day from the conclusion of school until 6pm and if a non-school day from 3pm until 6pm unless otherwise agreed in writing.
12.
That all handovers that cannot be conducted from the children’s school(s) or childcare centre(s) shall take place at McDonald’s Restaurant, D Street, Suburb E unless otherwise agreed in writing between the parties.
13.
That in the event that the father is unable to personally attend at handover for any reason, the father’s wife, sister, mother or father are able to attend on the father’s behalf and in such event the father will use his best endeavours to provide the mother with advance notice by SMS or email at the earliest reasonable opportunity, but in the absence of notice the father’s nominated family member shall be entitled to effect handover.
14.
That the children shall communicate with the parties by way of Skype/Facetime or such other similar form of communication as may be requested, but in any event at least on each Monday and Wednesday at 6pm unless the parties have agreed otherwise.
15.
Subject to whether the mother is able to solely pay for B’s private school fees and she elects to continue his primary education at F School, the parties take all steps necessary to enrol B to attend at such public school as may be agreed in writing.
16.
That the parties are to take all steps necessary to ensure that C attends the same primary school as B for such period as they both remain at school.
17.
That each party do inform the other as soon as is reasonably practicable of any medical emergency involving either of the children whilst in that parties care and do authorise the other party to speak with any medical professional and obtain copies of any report.
18.
That each party be permitted to attend all school or sporting functions of the children to which parents are usually permitted to attend PROVIDED HOWEVER:-
(a) Neither party is to approach the other party at any children’s school, sporting or other event at which both children may be in attendance; and
(b) Neither party shall attend at the school, kindergarten or childcare during the time that is outside of their scheduled time with the children unless provided for in this order.
19.
That the parents use and exchange at handover a communication book in respect of all issues concerning the care, welfare and development of the children.
20.
That each parent forthwith inform the other of any medical emergency involving the children including the name, address and contact details of the treating medical practitioner.
21.
That the mother be restrained and an injunction granted restraining her from referring to either child by the surname “Trevor” or allowing any other person to do so.
22.
That each party shall keep the other informed of a current mobile telephone number, email address and their current residential address and any change thereto.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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