FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANN & IRVING | [2017] FCCA 573 |
| Catchwords: FAMILY LAW – Parenting – 3 children – high parental conflict – presumption of equal shared parental responsibility applied – children to live with mother and spend significant and substantial time with father. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61DA, 62G, 65DAA |
| Cases cited: Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 Star & Duggan [2009] FamCAFC 115 |
| Applicant: | MS MANN |
| Respondent: | MR IRVING |
| File Number: | PAC 2200 of 2013 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 31 October 2016 and 1 November 2016 |
| Date of Last Submission: | 1 November 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 27 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Siggins |
| Solicitors for the Applicant: | Thornton Storgato Law Pty Ltd |
| Appearing for the Respondent: | In person |
| Counsel for Independent Children’s Lawyer: | Mr Schroder |
| Solicitors for the Independent Children’s Lawyer: | Benetatos White Solicitors |
ORDERS
That the parents have equal shared parental responsibility for the children X born (omitted) 2004, Y born (omitted) 2006 and Z born (omitted) 2010, subject to the Order made on 14 March 2016.
That the children live with the mother.
That the father spend time with the children and communicate with the children as follows :-
(a)during school terms, each alternate weekend from the end of school on Friday (or 3.00pm if not a school attendance day) until the start of school on Tuesday (or 9.00am if not a school attendance day), the first such occasion to commence on the Friday immediately following the making of these orders;
(b)during school terms, from the end of school (or 3.00pm if not a school attendance day) on the Monday following the weekend when the children are not spending time with the father until start of school (or 9.00am if not a school attendance day) on Tuesday;
(c)for one half of each school holiday period with the father having the first half of holidays commencing in even numbered years and the father having the second half of the holidays commencing in odd numbered years and for this purpose years ending in “0” are even numbered years and also for this purpose school holidays commence at 9.00am on the day after school finishes and conclude at 3.00pm on the day before school resumes for attendance by the children;
(d)in the event that Father’s Day occurs on a day on which the father is not spending time with the children, the father shall spend time with the children from 6.00pm on the Saturday before Father’s Day until 6.00pm on Father’s Day;
(e)in the event that any of the following occur on a day on which the father is not spending time with the children, the father shall have six hours’ time with the children:-
(i)the father’s birthday (omitted);
(ii)each of the children’s birthdays;
(iii)(omitted); and
(iv)(omitted).
Continue reading Mann and Irving
Sign in free to access the full text
- AGLC
- Mann and Irving [2017] FCCA 573
- Case
- [2017] FCCA 573
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the extent of equal shared parental responsibility, the primary residence of the children, and the detailed schedule for the father's time with the children, including during school terms, holidays, and special occasions. Further issues for determination included arrangements for the children's schooling, participation in extracurricular activities, communication protocols between the parents, and prohibitions against denigration. The court also considered the need for intervention programs for the parents and the allocation of costs.
In its decision, the court ordered equal shared parental responsibility for the children, with the children to live with the mother. A comprehensive schedule was established for the father's time with the children, detailing alternate weekends, specific weekdays, and half of each school holiday period, with provisions for various special days and events. The court also made detailed orders concerning the children's schooling, ensuring the father's involvement, and established communication protocols via email for parental responsibility matters and text messages for day-to-day issues. Prohibitions were placed on denigrating the other parent. The court further ordered both parents to participate in a Post Orders Intervention Pilot program and the father to attend an 'Managing Anger' program, pursuant to section 13C of the *Family Law Act 1975*. Finally, the court ordered the father to pay costs to the mother and the Independent Children's Lawyer, and the mother to pay costs to the Independent Children's Lawyer.
Orders
Orders of the court
1.
That the parents have equal shared parental responsibility for the children X born (omitted) 2004, Y born (omitted) 2006 and Z born (omitted) 2010, subject to the Order made on 14 March 2016.
2.
That the children live with the mother.
3.
That the father spend time with the children and communicate with the children as follows :-
(a) during school terms, each alternate weekend from the end of school on Friday (or 3.00pm if not a school attendance day) until the start of school on Tuesday (or 9.00am if not a school attendance day), the first such occasion to commence on the Friday immediately following the making of these orders;
(b) during school terms, from the end of school (or 3.00pm if not a school attendance day) on the Monday following the weekend when the children are not spending time with the father until start of school (or 9.00am if not a school attendance day) on Tuesday;
(c) for one half of each school holiday period with the father having the first half of holidays commencing in even numbered years and the father having the second half of the holidays commencing in odd numbered years and for this purpose years ending in “0” are even numbered years and also for this purpose school holidays commence at 9.00am on the day after school finishes and conclude at 3.00pm on the day before school resumes for attendance by the children;
(d) in the event that Father’s Day occurs on a day on which the father is not spending time with the children, the father shall spend time with the children from 6.00pm on the Saturday before Father’s Day until 6.00pm on Father’s Day;
(e) in the event that any of the following occur on a day on which the father is not spending time with the children, the father shall have six hours’ time with the children:-
(i) the father’s birthday (omitted);
(ii) each of the children’s birthdays;
(iii) (omitted); and
(iv) (omitted).
(f) at such other times as may be agreed between the parents from time to time.
4.
That in the event that Mother’s Day occurs during an alternate weekend occasion under order 3(a), the father’s time with the children shall conclude at 6.00pm on the Saturday before Mother’s Day and shall resume at 6.00pm on Mother’s day.
5.
That in the event that any of the following occur during a day on which the father is spending time with the children the children shall return to the mother for six hours:-
(a) the mother’s birthday - (omitted)
(b) each of the children’s birthdays;
(c) 7 January;
(d) 25 December; and
(e) (omitted).
6.
That the father’s alternate weekend time with the children under 3(a) shall cease to occur during school holidays and shall resume on the weekend next after the end of each school holiday which commences in an even numbered year and shall resume on the weekend second after the end of each school holiday which commences in an odd numbered year.
7.
That the father’s alternate Monday night time with the children under 3(b) shall cease to occur during school holidays and shall resume on the Monday second after the end of each school holiday which commences in an even numbered year and shall resume on the Monday next after the end of each school holiday which commences in an odd numbered year.
8.
That any occasions of the father spending time with the children when changeover will not occur by collection from or delivery to school:
(a) the mother shall deliver the children to the paternal grandmother’s place of residence 15 minutes before the start of the father’s time with the children and the father shall collect the children from the paternal grandmother’s place of residence at the start of his time with the children; and
(b) the father shall deliver the children to the paternal grandmother’s place of residence at the end of his time with the children and the mother shall collect the children from the paternal grandmother’s place of residence 15 minutes after the end of the father’s time with the children.
9.
That the children shall attend (omitted) High School unless otherwise agreed in writing between the parents.
10.
That in relation to the enrolment of the children in any school including the (omitted) Public School and (omitted) High School the mother shall ensure that she does all things necessary and sign any documents required to:
(a) Ensure the father is noted on the enrolment form as to his full particulars;
(b) Ensure that the father is noted as an emergency contact person with his telephone number;
(c) Ensure the father is able to attend the school and sign the enrolment form should he choose to do so;
(d) Ensure that the father is able to receive, at his own expense, copies of reports, school photographs and notices;
(e) Ensure the father is advised of any matters relating to the schooling of the children which requires interviews with the Principal, Counsellor or special educational needs and further the father be and is hereby entitled to participate in the resolution of each matter;
(f) Ensure that the father is able to make his own arrangements to attend parent teacher interviews and attend upon such events as parents ordinarily attend.
11.
That in relation to any extra-curricular activities for the children in the event that a parent wishes to enrol a child in an activity that will occur in the other parent’s time then:
(a) The parents must communicate by email beforehand to agree as to such activity;
(b) In the event of no agreement then the parties will participate in Family Dispute Resolution prior to any application being made to the Court.
12.
That in relation to communication regarding matters concerning equal shared parental responsibility:
(a) The parties will exchange email addresses within 7 days;
(b) The parties will communicate by email only in relation to matters concerning parental responsibility;
(c) The communications shall be polite and respectful;
(d) In the event of there being no agreement then the parties will attend Family Dispute Resolution save and except medical matters which may be referred to a Court by way of application.
13.
That in the event the parties are required to notify the other of day to day parenting matters (such as illness of a child, being late for changeover) such communication are to be by way of text message in a polite and respectful manner.
14.
That in the event of any medical emergency or hospitalisation the parties shall communicate as soon as practicable by telephone and text message.
15.
That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence of the children or within the children’s hearing and each of the parents is further restrained from allowing the children to remain in the presence of or within the children’s hearing of any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.
16.
That the father is to ensure that each of the children is delivered to school at the appropriate time for start of school each day that they or any of them are in his care at that time, subject only to illness or emergency.
17.
That in the event that any of the children fail to attend school, or attend school late, from the father’s care for 3 occasions in any school term, other than for reasons of their health as verified by medical certificate, then the father’s time with the children under order 3(a) shall end at 6 pm on Sunday on each occasion for that school term and the father’s time with the children under order 3(b) shall cease to occur for that school term.
18.
Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within 7 days contact the intake officer of (omitted counselling service) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the Post Orders Intervention Pilot program offered by that organisation and subject to the assessment of suitability each party shall then:
(a) Attend at such times, dates and places as may be advised; and
(b) Pay such fees as may be charged;
to participate in and complete such program.
19.
Pursuant to section 13C of the Family Law Act 1975, the father shall forthwith and within 7 days contact the intake officer of (omitted) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the ‘Managing Anger’ program offered by that organisation and subject to the assessment of suitability the father shall then:
(a)Attend at such times, dates and places as may be advised; and
(b) Pay such fees as may be charged;
to participate in and complete such program.
20.
That within six months the father pay to the mother costs in the amount of $5,665.
21.
That within six months, the father pay to the Independent Children’s Lawyer costs in the amount of $11,154.50
22.
That within six months the mother pay to the Independent Children’s Lawyer costs in the amount $7,082.50.
23.
Remove all outstanding issues from the list of cases awaiting finalisation.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.