FAMILY COURT OF AUSTRALIA
| LYNWOOD & LYNWOOD | [2019] FamCA 313 |
| FAMILY LAW – CHILDREN – Parenting orders – Where the court satisfied the children would benefit from a meaningful relationship with both parents – Where the children are content with the current arrangements – Where the court considers the mother’s and Independent Children’s Lawyer’s proposal for living arrangements as being in the children’s best interests – Where the court not satisfied the parties could discharge their obligations under s 65DAC if there was an order for equal shared parental responsibility – Where based on the findings of a Magistrate, the court is satisfied that both parties engaged in family violence towards each other – Where presumption of equal shared parental responsibility therefore does not apply – Order for sole parental responsibility with an obligation to consult. |
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 69ZX Evidence Act 1995 (Cth) ss 140 |
| Banks & Banks [2015] FamCAFC 36 Mauldera & Orbel (2014) FLC 93-602 Wacando v The Commonwealth (1981) 148 CLR 1 S v Australian Crime Commission (2005) 144 FCR 431 Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 K v R (1997) 22 FamLR 592 Bloomberg & Rod [2010] FamCAFC 112 T v N [2001] FMCAfam 222 |
| APPLICANT: | Ms Lynwood |
| RESPONDENT: | Mr Lynwood |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Gray |
| FILE NUMBER: | CSC | 296 | of | 2016 |
| DATE DELIVERED: | 17 May 2019 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 29 and 30 April 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Williams |
| SOLICITORS FOR THE APPLICANT: | Newman Family Law |
| THE RESPONDENT: | In person |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Susan Gray |
Orders
IT IS ORDERED ON A FINAL BASIS:
All previous orders are discharged.
Living Arrangements
The children X born … 2005 and Y … 2008 (‘the children’), shall live with the mother.
The children shall spend time with the father at all times as agreed between the parties in writing but failing agreement as follows:
a) During school terms, from after school on Friday (or from 3pm if Friday is a non-school day) until the commencement of school on Monday (or from 9am if Monday is non-school day) each alternate weekend, with the father to collect and deliver the children to and from their respective schools.
b) For the first half of the Easter school holidays in odd numbered years and the second half in even numbered years.
c) The whole of the September / October school holidays in odd numbered years and the whole of the June / July school holidays in even numbered years.
d) For the first 4 weeks during the Christmas school holidays in odd numbered years and the fifth and subsequent weeks in even numbered years, with changeover to take place at 5pm on the Sunday at the end of the fourth week.
e) Where the children are spending time with the mother during the Christmas school holidays in even numbered…
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- Case
- [2019] FamCA 313
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific orders concerning where the children would live, the schedule for their time spent with each parent, and the allocation of parental responsibility. Further issues included provisions for overseas travel, passports, communication between parents and children, and other ancillary matters such as attendance at parenting courses and counselling.
Tree J made detailed orders concerning the children's living arrangements, stipulating that they would live with the mother and outlining an alternating weekend schedule for time with the father, along with specific arrangements for school holidays. The mother was granted sole parental responsibility for most matters, with the caveat that she must inform the father of decisions and consider his views. Provisions were also made for overseas travel, passport applications, and communication methods between the parents and children, including requirements for respectful communication and prohibitions on physical discipline. The court also ordered both parents to attend post-separation parenting courses and the mother to continue counselling.
Orders
Orders of the court
IT IS ORDERED ON A FINAL BASIS:
1.
All previous orders are discharged.
Living Arrangements
2.
The children X born … 2005 and Y … 2008 (‘the children’), shall live with the mother.
3.
The children shall spend time with the father at all times as agreed between the parties in writing but failing agreement as follows:
a) During school terms, from after school on Friday (or from 3pm if Friday is a non-school day) until the commencement of school on Monday (or from 9am if Monday is non-school day) each alternate weekend, with the father to collect and deliver the children to and from their respective schools.
b) For the first half of the Easter school holidays in odd numbered years and the second half in even numbered years.
c) The whole of the September / October school holidays in odd numbered years and the whole of the June / July school holidays in even numbered years.
d) For the first 4 weeks during the Christmas school holidays in odd numbered years and the fifth and subsequent weeks in even numbered years, with changeover to take place at 5pm on the Sunday at the end of the fourth week.
e) Where the children are spending time with the mother during the Christmas school holidays in even numbered years and the children are in J Town, from 12pm on Christmas Day until 12pm on Boxing Day.
4.
The children’s time spent with the father shall be suspended so that the children spend time with the mother:
a) For the second half of the Easter school holidays in odd numbered years and the first half in even numbered years.
b) The whole of the September / October school holidays in even numbered years and the whole of the June / July school holidays in odd numbered years.
c) For the first 4 weeks during the Christmas school holidays in even numbered years and the fifth and subsequent weeks in odd numbered years, with changeover to take place at 5pm on the Sunday at the end of the fourth week.
d) Where the children are spending time with the father during the Christmas school holidays in odd numbered years and the children are in J Town, from 12pm on Christmas Day until 12pm on Boxing Day.
5.
School holidays are deemed to commence at the conclusion of school on the last day of school term for the child whose last day falls latest, and shall conclude at 5pm on the Sunday immediately preceding the new school term. For the Easter school holidays, the middle of the holiday period is deemed to be 1pm on the Saturday falling closest to the middle.
6.
For the purposes of the father’s time with the children each alternate weekend resuming after a holiday period, those arrangements shall resume on the basis that where the father did not have the children in his care on the weekend prior to the start of the school holidays, he shall have the children spend time with him on the first weekend of the new school term, or vice versa.
7.
Changeovers that do not take place at the children’s schools shall take place at McDonalds Suburb A.
Parental Responsibility
8.
Save for decisions relating to the children’s names, or which might make the exercise of the father’s time with the children under these orders substantially more onerous, the mother has sole parental responsibility for the children, including but not limited to matters concerning:
a) Any medical or health matters concerning the children;
b) The children’s education;
c) Disciplinary matters other than of a trivial nature;
d) The children’s social development and sporting activities; and
e) The children’s religious upbringing.
9.
In exercising sole parental responsibility for the children:
a) Before making any decision the mother shall first inform the father in writing of the decision that needs to be made.
b) Within 7 days (or sooner as the circumstances require) the father is at liberty to provide to the mother in writing his views on the decision to be made.
c) The mother will consider the father’s views in making the decision.
Overseas Travel & Passports
10. Both parents are at liberty to travel overseas with the children during periods that the children are in their respective care pursuant to these Orders, on condition that:
a) The travelling parent provides the other with 60 days written notice of the intention to travel;
b) At least 28 days prior to the intended travel, the travelling parent provides the other with:
i. A copy of the children’s return travel tickets and travel itinerary as provided by the travel service provider;
ii. Details of where the children will be staying during the period of travel; and
iii. Emergency contact telephone numbers for the period of travel.
11. In addition to Order 10 of these Orders, in the event of a medical emergency involving a member of the children’s extended family in Country K facing a life-threatening illness or death, the mother is permitted to travel with the children to Country K for the purposes of the children spending time with that family member or attending a funeral, conditional on the mother providing the father as soon as practicable prior to departure the same information as is required to be provided in accordance with Order 10.
12. Both parents are at liberty to apply for / renew the children’s Passports. The parent wishing to obtain the Passport shall provide the other with the necessary Passport application / renewal documents for the other parent to sign, which that other parent shall sign and return within 7 days. Where no response is received, the requesting parent is at liberty to apply for the Passport/s without the written consent of the other parent.
13. Where a parent has not signed a child’s passport application / renewal in accordance with Order 12 of these Orders, upon the requesting parent making application without the other parent’s written consent the children’s Passports (including Passport renewals) shall issue notwithstanding that the other parent has not signed the relevant application documents.
14. The children’s Passports shall be retained by the mother. Where the father travels with the children the Passports are to be returned to the mother at the time of the children returning to the mother’s care.
Telephone Communication
15. During school holiday periods, the parents shall facilitate the children communicating with the other parent by telephone, Facetime or Skype once per week at times to be agreed.
16. The parent having care of the children on their birthdays shall facilitate the children telephoning the other parent on their birthdays.
17. The parent having care of the children on the day of the other parent’s birthday shall facilitate the children telephoning the other parent on that day.
Other
18. Both parents shall forthwith enrol and attend the post separation parenting courses as provided by Relationships Australia and within 6 months provide to the other parent a copy of the Certificate of completion.
19. The mother shall continue to attend upon personal counselling as is recommended to her by her current counsellor and any subsequent counsellors.
20. The parties shall communicate with each other in relation to issues concerning the children via text message or email.
21. These Orders are Authority to the children’s schools and medical practitioners to provide to both parents any and all documents pertaining to the children that is ordinarily provided to parents.
22. Both parents shall inform each other as soon as practicable of any injury or illness to the children that requires hospitalisation or emergency medical treatment.
23. During the time that the children are with both parents, the parent having care of the children shall:
a) Not question the children about the personal life of the other parent;
b) Speak of the other parent respectfully; and
c) Not denigrate or insult the other parent or the other parent’s family members or friends in the presence of the children and remove the children from the presence of others who may be doing so.
24. Neither parent shall physically discipline the children or allow any other person to do so.
25. The Independent Children’s Lawyer is forthwith with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
26. Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.
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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