FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARINO & MARINO (No.2) | [2010] FMCAfam 951 |
| FAMILY LAW – Children aged 5 & 3 – final orders made in March of 2009 – high conflict between parents – consequences for children – whether final orders should be revisited in the light of the rule in Rice & Asplund – shared care – equal shared parental responsibility – what is reasonably practical – best interests. |
| Family Law Act 1975, ss.4; 60B; 60CC; 61DA, 65DAA; 65DAC |
| Marino & Marino [2007] FMCAfam 517 Marino & Marino [2009] FMCAfam 227 Marino & Marino [2010] FMCAfam 318 Rice & Asplund (1979) FLC 90-725 SPS & PLS [2008] FamCAFC 16 MRR v GR [2010] HCA 4 CDJ v VAJ (1998) FLC 92-828 In the Marriage of McEnearney (1980) FLC 90-866 Marsden & Winch [2009] FamCAFC 152 King & Finneran (2001) FLC 93-079 Briginshaw v Briginshaw (1938) 60CLR 336 Godfrey v Saunders 208 FLR 287 Silas & Barry [2009] FMCAfam 448 Astor & Astor [2007] FamCA 355 |
| Applicant: | MS MARINO |
| Respondent: | MR MARINO |
| File Number: | ADC 2600 of 2007 |
| Judgment of: | Brown FM |
| Hearing dates: | 5 & 6 August 2010 |
| Date of Last Submission: | 26 August 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 3 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Britton |
| Solicitors for the Applicant: | SRG Lawyers |
| Counsel for the Respondent: | Mr Keen |
| Solicitors for the Respondent: | Windevere Bellman |
ORDERS
Parental responsibility
The parties have equal shared parental responsibility for the children of the marriage [X] born [in] 2005 and [Y] born [in] 2007 (hereinafter referred to as “the children”).
In the exercise of their equal shared parental responsibility for the children the parties are to consult with each other in respect of all major long term decisions pertaining to the children, which include but are not limited to issues about:
(a)The children’s education (both current and future);
(b)The children’s religious and cultural upbringing;
(c)The children’s health (including psychological health);
(d)The children’s names; and
(e)Any changes to the children’s living arrangements which significantly interferes with the operation of these orders, particularly with the arrangements for the children to spend time with each parent.
In the event the parties are unable to come to a joint decision about any major long term issue pertaining to the children they are to jointly consult with a family dispute resolution practitioner as defined by section 10G of the Family Law Act1975 and seek the assistance of such family dispute resolution practitioner to come to a joint decision about the major long term issue pertaining to the children in dispute between them.
The mother and father shall:
(a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied…
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- Case
- [2010] FMCAfam 951
- Decision Date
CaseChat Overview and Summary
The court carefully considered the evidence and submissions from both parents, focusing on the welfare and best interests of the children. It was evident that both parents were committed to their children's wellbeing, but they had different views on how to achieve this. The court emphasised the importance of maintaining a harmonious and cooperative relationship between the parents, which was crucial for the children's stability and development. It was decided that equal shared parental responsibility was in the best interest of the children, allowing both parents to make significant decisions about the children's lives.
In terms of living arrangements, the court devised a detailed schedule to ensure the children spent substantial and meaningful time with both parents. The arrangement included alternating weeks for the children to live with each parent, with specific provisions for school holidays and special occasions. The court mandated that both parents consult each other on major long-term issues and seek family dispute resolution if necessary. Additionally, the court required the parents to maintain open communication and respect each other in front of the children. Ultimately, the court's orders aimed to provide a balanced and stable environment for the children while respecting the rights and responsibilities of both parents.
Orders
Orders of the court
Parental responsibility
1.
The parties have equal shared parental responsibility for the children of the marriage [X] born [in] 2005 and [Y] born [in] 2007 (hereinafter referred to as “the children”).
2.
In the exercise of their equal shared parental responsibility for the children the parties are to consult with each other in respect of all major long term decisions pertaining to the children, which include but are not limited to issues about:
(a) The children’s education (both current and future);
(b) The children’s religious and cultural upbringing;
(c) The children’s health (including psychological health);
(d) The children’s names; and
(e) Any changes to the children’s living arrangements which significantly interferes with the operation of these orders, particularly with the arrangements for the children to spend time with each parent.
3.
In the event the parties are unable to come to a joint decision about any major long term issue pertaining to the children they are to jointly consult with a family dispute resolution practitioner as defined by section 10G of the Family Law Act 1975 and seek the assistance of such family dispute resolution practitioner to come to a joint decision about the major long term issue pertaining to the children in dispute between them.
4.
The mother and father shall:
(a) Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b) Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children;
(c) Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.
5.
The parents authorise by this order, the schools, kindergartens and day care centres attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at the expense of the parent requesting same).
6.
During the time the children are with either parent, that parent shall:
(a) Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b) Speak of the other parent respectfully;
(c) Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that other persons do not denigrate or insult the other parent in the presence or the hearing of the children.
7.
Each parent be at liberty to attend at the children’s school, pre-school or kindergarten for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.
8.
If the parties have not already done so, they are each directed to attend and complete a KidsRFirst Program provided by Anglicare within six (6) months of the date of these orders but it is noted that they need not attend the same scheduled course.
Living arrangements
9.
The children live with their parents from the date of these orders until [Y] has commenced primary school in January of 2012 as follows subject to arrangement for school holidays and special occasions as specified in order 12 and orders 14-24 hereof:
(a) With the father in the alternate weeks of each fortnight:
(i) In the first week from 8:00am Monday until 5:00pm Thursday;
(ii) In the second week of each fortnight from 8:00am Wednesday until 8:00am the following Thursday.
(b) With the mother at all other times.
10.
Upon the child [Y] commencing primary school in January of 2012 the children live with their parents, during school terms, subject to arrangements for school holidays and special occasions as specified in order 12 and orders 14-24 hereof as follows:
(a) With the father in the alternate weeks of each fortnight as follows:
(i) In the first week of each fortnight from after school on Friday until school recommences the following Monday (or Tuesday in the event that Monday is a public holiday);
(ii) In the second week of each fortnight from after school on Wednesday until school recommences the following Friday.
(b) With the mother at all other times during school term subject to the arrangements for school holidays and special occasions as specified in order 12 and orders 14-24 hereof.
School holidays
11.
The children spend equal periods of time, in blocks not exceeding seven (7) days in duration, with each parent during all school holidays commencing with the end of first term holiday in 2011 the exact configuration of the blocks of time to be as agreed between the parties but failing agreement as follows:
(a) The children spend time with the father in the first half of each short school holiday period in 2011 (subject to arrangements for Easter) and each alternate year thereafter;
(b) The children spend time with the father in the second half of each short school holiday period in 2012 (subject to arrangements for Easter) and each alternate year thereafter;
(c) The children spend time with the mother in the second half of each short school holiday period in 2011 (subject to arrangements for Easter) and each alternate year thereafter;
(d) The children spend time with the mother in the first half of each short school holiday period in 2012 (subject to arrangements for Easter) and each alternate year thereafter;
(e) Subject to arrangements for Christmas Eve, Christmas Day and Boxing Day in each year provided by orders 16-19 hereof the children spend alternating weekly periods during the end of year school holiday with each of their parents, the weeks to be agreed between the parties but failing agreement the mother to have the first block of seven (7) days in the school holiday commencing in 2011 and each odd ending year thereafter and the father to have the first block of seven (7) days in the end of year school holiday commencing in 2012 and each even ending year thereafter.
12.
For the purposes of any calculation necessary to implement these orders all school holidays are deemed to commence at 9:00am on the first Saturday after school has ended for the term and to conclude at 6:00pm on the last Sunday of each holiday period.
Special occasions
13.
If Father’s Day does not fall on a weekend that the children are otherwise living with the father pursuant to these orders the father spend time with the children from 5:00pm on the Saturday preceding Father’s Day until 5:00pm on Father’s Day.
14.
If Mother’s Day does not fall on a weekend that the children are otherwise living with the mother pursuant to these orders the mother spend time with the children from 5:00pm on the Saturday preceding Mother’s Day until 5:00pm on Mother’s Day.
15.
The children spend time with the father from 5:00pm on 24 December 2010 until 3:00pm on 25 December 2010 and each even ending year thereafter.
16.
The children spend time with the mother from 3:00pm on 25 December 2010 until 5:00pm on 26 December 2010 and each even ending year thereafter.
17.
The children spend time with the mother from 5:00pm on 24 December 2011 until 3:00pm on 25 December 2011 and each odd ending year thereafter.
18.
The children spend time with the father from 3:00pm on 25 December 2011 until 5:00pm on 26 December 2011 and each odd ending year thereafter.
19.
The children spend time with the father from 9:00am on Good Friday in 2011 until 3:00pm on Easter Sunday in 2011 and each alternate year thereafter.
20.
The children spend time with the mother from 3:00pm on Easter Sunday in 2011 until 5:00pm on Easter Monday in 2011 and each alternate year thereafter.
21.
The children spend time with the mother from 9:00am on Good Friday in 2012 until 3:00pm on Easter Sunday in 2012 and each alternate year thereafter.
22.
The children spend time with the father from 3:00pm on Easter Sunday in 2012 until 5:00pm on Easter Monday in 2012 and each alternate year thereafter.
23.
On each of the children’s birthday the parent with whom the children are not living pursuant to these orders spend a period of three (3) hours with the children at times to be agreed between the parties, bearing the mother’s working hours, and failing agreement to be between 4:00pm and 7:00pm.
Handover
24.
Wherever possible the children are to be exchanged between their parents at their respective schools or kindergartens and when these locations are not available the children are to be exchanged at the parties respective homes with the father delivering the children to the mother’s home when the children move from his care to the mother’s care and the mother to deliver the children to the father’s home when the children move from her care to the father’s care.
25.
All other applications be dismissed.
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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