FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARCIC & TAIT | [2012] FMCAfam 191 |
| FAMILY LAW – Final parenting orders – where the children shall reside – what time the children spend with other parent – entrenched conflict – whether equal shared parental responsibility is in the children’s best interests – not in the children’s best interests to change residence – equal time not in the children’s best interests or reasonably practicable – substantial and significant time in the children’s best interests and reasonably practicable – insufficient evidence to determine dispute over schooling. |
| Family Law Act 1975 (Cth), ss.60CC(2), (3), (4), (4A), 61DA, 65DAA |
| Tait & Marcic [2009] FMCAfam 936 McCall & Clark [2009] FamCAFC 92 B & J [2009] FamCAFC 103 |
| Applicant: | MS MARCIC |
| Respondent: | MR TAIT |
| File Number: | MLC 316 of 2008 |
| Judgment of: | O'Sullivan FM |
| Hearing dates: | 17, 18, 19 October & 28 November 2011 |
| Date of Last Submission: | 9 January 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 23 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms M. Smallwood |
| Solicitors for the Applicant: | Pearsons Barristers & Solicitors |
| Counsel for the Respondent: | Mr P. O'Shannessy |
| Solicitors for the Respondent: | Kelly & Associates |
| Counsel for the Independent Children’s Lawyer: | Mr S. Lethlean |
| Solicitors for the Independent Children’s Lawyer: | TJ Mulvany & Co |
ORDERS
That all previous parenting orders be discharged.
That the parties have equal shared parental responsibility for the children, X born (omitted) 2000 and Y born (omitted) 2003 (“the children”).
That each parent will be responsible for the day to day decisions concerning the care of the children when the children are in their respective care.
The children shall live with the father as follows:
(a)each alternate week during school term, from the cessation of school, or if not a school day from 5.00 pm Friday until the commencement of school the following Wednesday or if not a school day to 10.00 am on such Wednesday.
(b)for the school holiday periods the children shall live as follows:
(i)with each parent for one half of each school term holiday period at times agreed and failing agreement in…
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- Marcic and Tait [2012] FMCAfam 191
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- [2012] FMCAfam 191
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CaseChat Overview and Summary
The primary legal issues addressed by the court included determining the appropriate living arrangements for the children, assigning shared parental responsibility, and establishing guidelines for communication and interaction between the parents to ensure the children's welfare. The court had to balance the best interests of the children with the rights and responsibilities of both parents.
The court's reasoning focused on the need for a structured and stable environment for the children, given the contentious relationship between the parents. The court concluded that a detailed and specific parenting order was necessary to minimise conflict and provide clarity for both parents and the children. The court emphasised the importance of the children maintaining relationships with both parents and participating in activities that foster their development and well-being.
The final orders discharged all previous parenting orders and established a comprehensive arrangement for the children's living situation, equal shared parental responsibility, and detailed provisions for time spent with each parent, including during holidays and special occasions. The orders also included provisions for communication between the parents, restrictions on their ability to discuss the proceedings with the children, and requirements for attending family therapy and counselling. Additionally, the court imposed restrictions on the parents' ability to remove the children from Australia and to engage in behaviour that could negatively impact the children's relationship with the other parent.
Orders
Orders of the court
1.
That all previous parenting orders be discharged.
2.
That the parties have equal shared parental responsibility for the children, X born (omitted) 2000 and Y born (omitted) 2003 (“the children”).
3.
That each parent will be responsible for the day to day decisions concerning the care of the children when the children are in their respective care.
4.
The children shall live with the father as follows:
(a) each alternate week during school term, from the cessation of school, or if not a school day from 5.00 pm Friday until the commencement of school the following Wednesday or if not a school day to 10.00 am on such Wednesday.
(b) for the school holiday periods the children shall live as follows:
(i) with each parent for one half of each school term holiday period at times agreed and failing agreement in the event that the mother’s weekend would have been the first weekend of the holidays from after school on the day school breaks up until the middle Saturday of the holidays at 10.00am and in the event that the mother’s weekend would have been the middle Saturday of the holidays from 10.00 am on the middle Saturday of the holidays to the commencement of the next school term.
(ii) with each parent for one half of the long summer holidays from break up to 10.00am on 24 December at times agreed and thereafter for one half of the remaining school holiday period commencing 26 December at times agreed and failing agreement:
(a) with the mother for the first half in 2012/ 2013 and each alternate year thereafter and for the second half in 2013/2014 and each alternate year thereafter.
(b) with the father for the second half in 2012/2013 and each alternate year thereafter and for the first half in 2013/2014 and each alternate year thereafter.
(c) During Christmas and Boxing Day the children shall live as follows:
(i) with the mother from 10.00am 24 December to 10.00am 25 December in 2012 and each alternate year thereafter and from 10.00am 25 December to 10.00am 26 December in 2013 and each alternate year thereafter.
(ii) with the father from 10.00am 25 December to 10.00am 26 December in 2012 and each alternate year thereafter and from 10.00am 24 December to 10.00am 25 December in 2013 and each alternate year thereafter.
5.
In the event the children are not in the care of the mother, they shall spend additional time with her as follows:
(a) from 6pm the evening before Mother’s Day to 6pm Mother’s Day.
(b) on each of the mother’s and children’s birthdays, at times agreed and failing agreement, on a non-school day from 12 noon to 4pm, and on a school day from the conclusion of school to 8.00pm if they are not otherwise spending time with the children.
(c) from 2pm to 8pm on 6 January each year, being the maternal grandmother’s birthday.
(d) to attend family celebrations for the birthdays of each of the following:
(i) Mr Marcic;
(ii) Mr Marcic;
(iii) C;
(iv) A;
at times agreed and failing agreement from the conclusion of school to 8.00pm, or if a non school day from 4.00pm, to 9.00pm, with the mother to give the father not less than 14 days notice of any such event.
6.
In the event the children are not in the care of the father, they shall spend additional time with him as follows:
(a) from 6pm the evening before Father’s Day to 6pm Father’s Day.
(b) on each of the father’s and children’s birthdays, at times agreed and failing agreement, on a non-school day from 12 noon to 4pm, and on a school day from the conclusion of school to 8.00pm if they are not otherwise spending time with the children.
(c) to attend family celebrations for the following birthdays of:
(i) Mr Tait;
(ii) Ms Tait;
(iii) Mr Tait;
(iv) Mr Tait
(v) Z;
at times agreed and failing agreement from the conclusion of school to 8.00pm, or if a non school day from 4.00pm, to 9.00pm, with the father to give the mother not less than 14 days notice of any such event.
7.
At such further the other times with the father as may be agreed between the parties from time to time.
8.
Subject to the above the children shall live with the mother at all other times.
9.
All changeovers shall occur at school during school terms. In the event the changeovers occur outside school terms, the parent whose time with their children is commencing shall collect the children from the other parent's residence at the commencement of that parent's time.
10.
Subject to paragraph (9) hereof, neither party shall attend at the residence of the other, or enter into the other parent’s home without the prior consent of the other.
11.
Subject to paragraph (9) only the parent delivering the children to, or collecting the children from, school shall attend at the school at changeovers.
12.
Neither parent shall discuss these Orders with the children, and the Independent Children’s Lawyer shall explain the orders to the children as soon as practicable and with the assistance of such psychologist such as Dr N, or such other person as she sees fit.
13.
Each parent forthwith authorise the Principal of each school attended by the children from time to time to be sent to the other:
(a) a photocopy of each school report concerning each child;
(b) a photocopy of all school notices and newsletters concerning each child;
(c) an order form for each school photograph of each child.
14.
Each parent be at liberty to attend or visit the school or schools attended by the children for events to which parents are normally invited such as sports days, concerts, parent teacher interviews and the like.
15.
The Independent Children’s Lawyer forthwith arranged for a copy of these Orders to be provided to the Principal of any school attended by the children.
16.
Each parent shall ensure the children attend the agreed extra-curricula activities that fall during the time the children are in the care of that parent.
17.
The parties forthwith appoint Dr H (or such other person as may be nominated by Dr N) as the children’s Paediatrician (the Paediatrician), and the children’s General Practitioner be a GP nominated by Dr H at (omitted) Medical Centre (omitted)(the GP), and;
(a) each party is restrained from taking the children or either of them to any other medical or allied health practitioners other than the Paediatrician or the GP, save in an emergency and that the Paediatrician and the GP so appointed be provided with copies of each of the reports of Dr N and the report of Dr E and;
(b) each party shall otherwise refrain from taking the children, or either of them, to any other therapist, clinician or allied health practitioner save by prior agreement in writing save that any referral for psychological or therapeutic counselling shall be as referred by Dr N, the Paediatrician or the GP or as agreed between the parties in writing and in any event keep the other parent informed of any referral and/or attendance.
18.
The parties shall each keep the other informed of any major illness or accident suffered by the children when in his or her care and advise the other as soon as is practicable of each treating doctor or like professional attended by the children.
19.
The parties provide to the other at all times their respective residential and postal addresses and contact telephone numbers within 2 days of any change and inform the other of any change of residence not less than 21 days prior to such change.
20.
That each parent advise the other no less than 7 days prior to any planned travel with the children outside the state of Victoria.
21.
That the parents and/or the children attend upon family therapy or counselling with such psychologist as recommended by Dr N and further such counselling or therapy shall be at the parties’ joint and equal expense.
22.
Subject to paragraph (17) each party be, and is hereby restrained by injunction from, taking the children or either of them to any other allied-medical practitioner save and except by agreement in writing and, in default of agreement, as may be referred by Dr H.
23.
That the mother attend upon a psychiatrist specialising in personality disorders and the Independent Children’s Lawyer provide that psychiatrist with a copy of these orders, these reasons, Dr N’s reports (all three) and a copy of Dr E’s report.
24.
The appointment of the Independent Children’s Lawyer not be discharged until the mother has provided proof to the Independent Children’s Lawyer that she is attending upon a psychiatrist and is following recommended treatment and the parties have commenced family therapy or counselling in accordance with paragraph (21).
25.
That any written communication between the parties be restricted to child-related content or commentary only.
26.
The mother and father, their servants and agents are restrained from taking or sending or attempting to take or send the children X born (omitted) 2000, and Y born (omitted) 2003, from the Commonwealth of Australia.
27.
The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
28.
The Court must immediately notify the Marshal and the Australian Federal Police Family Law Team of these orders by telephone and must as soon as possible provide a copy of these orders to the Marshal, the Australian Federal Police and the State Victoria Police.
29.
The Court requests that until further order the Australian Federal Police place the names of the children on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these orders.
30.
The father, his servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the mother to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.
31.
The mother, her servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the father to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.
32.
That save for the purposes of compliance with these orders both parties be restrained by injunction from discussing these proceedings or court documents within the sight or hearing of the children or permitting any other person to do so other than the Independent Children’s Lawyer.
33.
For the purposes of a dispute arising regarding these orders, the interpretation of these orders or for the purposes of joint consultation, both parties shall participate in dispute resolution in the manner outlined below:
(a) the initiating party shall obtain a referral from a Family Relationships Centre (FRC) which shall contain a list of three dispute resolution practitioners or such other qualified practitioner located as close to halfway between their respective residences as possible;
(b) the initiating party shall then provide that list to the other party and that party shall, within seven days, communicate their nomination from the list of three;
(c) where there is no agreement as to the dispute resolution practitioner, the dispute resolution shall occur at the closest Family Relationship Centre to the midway point between the parties’ residences and where appropriate, by telephone;
(d) the parties shall, by way of communication with the nominated practitioner, organise dispute resolution at a time mutually convenient to each of the parties;
(e) that the parties equally share the costs (if any) of any dispute resolution;
(f) either party at their own nomination can be the initiating party;
(g) that there be not more than one dispute resolution in relation to any issue unless otherwise agreed between the parties.
34.
Pursuant to s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
35.
All extant applications be otherwise dismissed and removed from the Pending Cases List.
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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