FEDERAL CIRCUIT COURT OF AUSTRALIA
| MADARY & WALBRUN | [2020] FCCA 998 |
| Catchwords: FAMILY LAW – Parenting – relocation – mother moves from Hobart to City A, Queensland – changeover – costs of travel – where the child is to attend school. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65DAA. |
| Cases cited: Bennett & Bennett (1991) FLC ¶92-191 |
| Applicant: | MS MADARY |
| Respondent: | MR WALBRUN |
| File Number: | HBC 372 of 2011 |
| Judgment of: | Judge Baker |
| Hearing dates: | 24, 25 and 26 February 2020, 15 May 2020 |
| Date of Last Submission: | 15 May 2020 |
| Delivered at: | Hobart |
| Delivered on: | 2 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | N/A |
| Counsel for the Respondent: | Mr Trezise of Counsel |
| Solicitors for the Respondent: | Wallace Wilkinson & Webster |
| Counsel for the Independent Children's Lawyer: | Ms Ryan of Counsel |
| Solicitors for the Independent Children's Lawyer: | Legal Aid Commission of Tasmania |
ORDERS
THE COURT ORDERS THAT:
All prior parenting orders are hereby discharged.
All extant applications are dismissed.
Ms Madary (“the mother”) and Mr Walbrun (“the father”) have equal shared parental responsibility for the child X born in 2008 (“X”).
AND IT IS NOTED: That in the event of the parties not being able to reach an agreement in relation to major long-term issues, they will access supported decision-making through community mediation processes.
X shall live with the father.
X shall spend time with the mother for the Term 1 & 2 school holidays from the day after term ends, and returning to the father’s care on the Sunday before term re-commences.
For the Term 3 school holidays X shall spend time:
(i)In even numbered years with the mother for the first half of the holiday period;
(ii)In even numbered years with the father for the second half of the holiday period;
(iii)In odd numbered years with the father for the first half of the holiday period;
(iv)In odd numbered years with the mother for the second half of the holiday period;
X will spend time with each party as outlined below:
(a)For Christmas and the summer school holidays in even numbered years:
(i)With the mother from 20 December for a period equal to half the school holiday period at the school at which X is enrolled (noting that the number of days in all school holiday periods is to be calculated in accordance with Order 8).
(ii)With the father for the other half of the school holiday period.
(b)For Christmas and the summer school holidays in odd numbered years:
(i)With the father from 20 December for a period equal to half the school holiday period at the…
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- MADARY & WALBRUN [2020] FCCA 998
- Case
- [2020] FCCA 998
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the best interests of the child, X, in light of the relocation and the parties' differing proposals for future arrangements. Key issues included establishing equal shared parental responsibility, determining X's primary residence, allocating time with each parent during school holidays and other periods, and making orders regarding X's schooling and healthcare. The court also needed to address the practicalities of interstate travel, including the costs and logistics of changeovers.
In its decision, the court discharged all prior parenting orders and dismissed extant applications. It ordered that the parents have equal shared parental responsibility for X, with X to live with the father. The court then detailed specific arrangements for X to spend time with the mother during school holidays, including a formula for calculating half the holiday periods and provisions for extended time. Orders were made for X to attend a specific school in Tasmania, with the father responsible for enrolment and payment of fees for any alternative school if a change became necessary. The court also made detailed provisions regarding X's healthcare, communication between parents and X, and travel arrangements, including the allocation of passport possession and the apportionment of flight costs.
Orders
Orders of the court
THE COURT ORDERS THAT:
1.
All prior parenting orders are hereby discharged.
2.
All extant applications are dismissed.
3.
Ms Madary (“the mother”) and Mr Walbrun (“the father”) have equal shared parental responsibility for the child X born in 2008 (“X”).
AND IT IS NOTED: That in the event of the parties not being able to reach an agreement in relation to major long-term issues, they will access supported decision-making through community mediation processes.
4.
X shall live with the father.
5.
X shall spend time with the mother for the Term 1 & 2 school holidays from the day after term ends, and returning to the father’s care on the Sunday before term re-commences.
6.
For the Term 3 school holidays X shall spend time:
(i) In even numbered years with the mother for the first half of the holiday period;
(ii) In even numbered years with the father for the second half of the holiday period;
(iii) In odd numbered years with the father for the first half of the holiday period;
(iv) In odd numbered years with the mother for the second half of the holiday period;
7.
X will spend time with each party as outlined below:
(a) For Christmas and the summer school holidays in even numbered years:
(i) With the mother from 20 December for a period equal to half the school holiday period at the school at which X is enrolled (noting that the number of days in all school holiday periods is to be calculated in accordance with Order 8).
(ii) With the father for the other half of the school holiday period.
(b) For Christmas and the summer school holidays in odd numbered years:
(i) With the father from 20 December for a period equal to half the school holiday period at the school at which X is enrolled (noting that the number of days in all school holiday periods is to be calculated in accordance with Order 8).
(ii) With the mother for the other half of the school holiday period returning to the father three (3) days before the first day students attend school in Term 1.
Calculating the number of days in each school holiday period
8.
In calculating half the school holiday periods:
(a) This formula will apply and uses dates applicable to the school at which X is enrolled
A = the last day students attend school in that term
B = the day before students attend school the next term
C = the number of nights between A&B inclusive
D = C divided by two
(b) The number of nights which equate to half the school holidays is equivalent to the number represented by “D” in the formula AND should “D” calculate to an odd number the mothers will have the benefit of an additional night.
Extended School holiday time
9.
Provided the mother has given the father notice by email by 20 September with the dates of destination and travel itinerary for X to travel with her for a greater period than the ordered Christmas holiday time, then in even numbered years the mother may extend her nights with X pursuant to Order 7(a)(i) to a block of 28 nights, by adding them to the end of her ordered time.
10.
Provided the father has given the mother notice by email by 20 September with the dates of destination and travel itinerary for X to travel with him for a greater period that the ordered Christmas holiday time, then in odd numbered years the father may extend his nights with X pursuant to Order 7(b)(i) to a block of 28 nights, by adding them to the end of his ordered time.
11.
The parties will spend such further or alternate time as agreed in writing and in such cases email or text message will suffice.
12.
Nothing in these Orders will prohibit the parties’ right to take X interstate during their ordered time with him.
Additional Time
13.
X shall spend additional time with the mother in Tasmania: Unless agreed otherwise in writing, provided she gives the father not less than two weeks’ notice in writing and provided the father had not before that date paid for a weekend away with X himself, the mother may spend up to seven (7) nights with X on four (4) occasions per year.
(a) X shall spend additional time with the mother in Queensland: Unless agreed otherwise in writing and provided she has given the father not less than 4 weeks’ written notice:
(i) The mother is at liberty to exercise additional time pursuant to this Order on three occasions per year;
(ii) The time is to be spent in Brisbane;
(iii) The time will occur on Tasmanian public holiday weekends, during school term and excluding the Christmas/New Year period holidays and the Easter holiday periods; and
(iv) The flights booked for this time will be the closest time a flight is available after school ends and a flight leaving Brisbane by 6:00pm or earlier on the evening before school recommences.
(b) Such further or alternate time as agreed.
Changeovers
14.
The changeover for X’s travel to spend time with the mother shall occur at the gate in Brisbane Airport.
Communication
15.
Each party shall have liberal communication with X when he is in the care of the other party by telephone, Skype, FaceTime or other medium:
(a) On special days, such as parents’ or family birthdays, parents’ days, Easter Sunday, X’s birthday, N’s birthday, Mother’s Day, Father’s Day and Christmas;
(b) As agreed between the parties;
(c) The father is at liberty to communicate with X, each Wednesday during the Term 1, Term 2 and summer school holidays at 7:00pm;
(d) The mother is at liberty to communicate with X at least each Wednesday and Sunday that X is not in her care (unless he has been in her care within the twenty-fours (24) hours prior to that time); and
(e) Additionally, as initiated by X during reasonable hours.
16.
Each party will ensure X is informed that he may call the other party at all reasonable times, and provided with the time, space, privacy and means to engage in that communication.
Education and school enrolment
17.
The father shall enroll X at the B School commencing from Grade 7 in 2021.
18.
That the father will provide the B School with a copy of these Orders.
19.
That the father will ensure that the B School is aware that the mother is entitled to information about X, and input into decisions concerning X involving major long-term issues.
20.
That both parties are at liberty to attend any school or extra-curricular events or occasions to which parents are ordinarily invited such as, but not limited to, parent/teacher interviews, assemblies, concerts, matches/games and carnivals.
21.
In the event that it is necessary for X to change high schools, the father may elect which school X shall attend on the basis that he pays the school fees and levies, such alternative schools to be either the C School or D School.
X’s health care
22.
Except in cases of an emergency X will attend E Medical Clinic, F Street, Suburb G when in need of the attention of a general practitioner and in the event an appointment is not promptly available, X may attend on another Clinic within the greater Hobart area.
23.
In the event any referral thought necessary by X’s general medical practitioner and the parties cannot agree as which particular professional that referral should be to, the decision(s) will be left to X’s general practitioner at E Medical Clinic and the parties will cooperate with the referral process.
24.
Both parties will ensure any doctor attending on X is aware that the other party is entitled to information about X, and input into decisions concerning X involving major long-term issues.
25.
Each party will notify the other party of any major accident or illness which requires medical treatment for X, the treatment, prognosis and resolution as soon as practicable.
26.
Each party will notify the other party in writing of any prescription medication prescribed or administered to X and the dosage, and that medication will travel with X between the parties.
27.
Except in circumstances of an emergency, and except as pursuant to Order 23 above neither party will take X to an appointment with a specialist medical or allied health professional if the other party has expressed opposition to that course in writing.
28.
Within two (2) weeks the mother will nominate in writing to the father, the specific general medical practice to which she will take X in Queensland and the mother will cause the practice to send a copy of the record of any attendance by X to E Medical Clinic.
29.
Each party will do all acts and things to ensure that X remains engaged in therapeutic support on an ongoing basis, noting at present X is supported by Ms H, psychologist; that engagement only to be ceased or changed by:
(a) agreement between the parties in writing; or
(b) at the reasonable recommendation of the treating professional.
30.
The parties will implement the reasonable recommendations of Ms H, or any subsequent professional supporting X.
31.
In the event any of the sessions with Ms H or any subsequent professional for X are not covered by a mental health plan, the father will be responsible for payment of their fees.
32.
The Court notes both parties seek and consent to each of the parties being provided with information from Ms H or any subsequent professional in respect of treatment of X, his progress and current or past recommendation made by that person, and it is ordered that each party provide a written authority to Ms H and indicate that the authority extends to therapy with or without a mental health plan.
33.
The costs of any appointment(s) for the parties will be shared equally between them if it is a joint appointment or solely by the party being asked to meet with Ms H if only one party is seen.
Injunctions and Responsibilities
34.
Unless agreed in writing by email, the parties are hereby restrained from taking X out of the State of Tasmania or retaining him out of the State of Tasmania during school term time.
35.
Each party will ensure that any professional or therapeutic practitioner is informed that the other party is entitled to information about X, and input into decisions concerning X involving major long-term issues, and these Orders act as an authority for that purpose.
36.
The parties will use civil and respectful language to communicate with each other and their family and each party be and are hereby restrained from:
(a) Denigrating the other party or members of the other party’s family to or in the presence of X, or allowing X to remain where any 3rd party does so; and
(b) Discussing these proceedings with X, or with any other person in the presence of X, or allowing X to remain where any 3rd party does so, except to explain that faced with difficult choices the parties sought help to make a decision in X’s best interests.
Travel and Passports
37.
For the purposes of interstate travel for school holiday or agreed time:
(a) Unless otherwise agreed in writing, until X reaches the age of 13, X will travel accompanied by one of the parties.
(b) The parties are each entitled to send an agent of their choice as the accompanying adult for the travel interstate for changeovers.
38.
Once X reaches the age of 13, each party will ensure that X flies as an unaccompanied minor.
39.
With respect to the mother’s ordered school holiday time, the father will book and pay for the costs of the return flights for X between Hobart and City A, Queensland at least six weeks prior to travel and upon booking will provide the mother with an itinerary of the travel.
40.
Each party will pay for the costs of his or her own accompanying airfares.
41.
The mother will reimburse the father 30 per cent of the total cost of X’s return flights within within 14 days of the payment of the airfares and the provision of the receipt to her.
42.
The parties will each endeavor to book flights with as little travel time between Tasmania and Queensland and as inexpensive a flight as possible.
43.
In the event that either party seeks to travel overseas with X during a period of extended holiday time with X, the party shall provide to the other party 4 months’ notice of the dates of travel and the itinerary and copies of the return tickets 14 days prior to travel.
44.
Apart from periods of travel overseas, the father will have possession of X’s passport in 2021, and each alternate year thereafter; the mother will have possession of X’s passport in 2020 and each alternate year thereafter.
45.
The parties will send the passport to the other party via registered post on the first business day of each year, or if they are overseas with X on that date, within seven (7) days of their return to Australia.
Other Orders
46.
Both parties:
(a) Attend and complete, as soon as practicable, a Post Separation Parenting Program.
(b) Sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program.
(c) Pay and otherwise be responsible for all costs associated with the program.
(d) Provide evidence to the other party’s solicitor that they have enrolled in the program.
(e) Provide evidence to the other party’s solicitor that they have successfully completed the program.
47.
That the Independent Children’s Lawyer will provide a copy of these Orders to E Medical Clinic, and a copy of the Orders and the family report released 16 January 2020 to Ms J and Ms H.
48.
The appointment of the Independent Children's Lawyer will continue until seven (7) days after the Independent Children's Lawyer has explained the Orders to the child or it is confirmed an agreed person such as X’s psychologist jointly or alone has explained the Orders to X, and then the appointment is discharged.
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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