FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOXON & FLEET | [2018] FCCA 1279 |
| Catchwords: FAMILY LAW – Parenting application – disputed issues mostly resolved by consent – remaining issue of changeover – mother contends that she should not contribute to changeover – father submits that the mother should effect changeover one in four times per fortnightly cycle – neither proposal accepted – child’s best interests paramount consideration – mother assigned responsibility to collect the child one time each month – issue of child’s birthday – order for child to spend time with both parents on her birthday. |
| Legislation: Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 62B, 64B, 65DA, 65DAA, 65DAC, 65LA, 65P, 65N, 65NA, 70NAD |
| Cases cited: Bell & Nahos [2016] FamCAFC 244 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Collu v Rinaldo [2010] 10 FamCAFC 53 |
| Applicant: | MR MOXON |
| Respondent: | MS FLEET |
| File Number: | MLC 6860 of 2013 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 2 May 2018 |
| Date of Last Submission: | 2 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 29 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Matson |
| Solicitors for the Applicant: | Andrew Croxford & Associates Pty Ltd |
| The Respondent | In person |
ORDERS
All previous children’s orders be dismissed.
The parties have equal shared parental responsibility for the child, [X], born 2010 (the child).
The child live with the Mother.
The child spend time with the Father as follows:
(a)each Wednesday from after school until 7.30pm;
(b)each alternate Friday from after school care until Sunday at 5.00pm, provided that if Monday is a public holiday, until 5.00pm on Monday evening;
(c)for one half of all Victorian term holidays (subject to paragraph 4(d) below) commencing the week that follows on from the Father’s scheduled weekend until 7.00pm Friday;
(d)during the Easter school term holidays, the Father to have the week in which Easter falls in 2019 and each alternate year thereafter;
(e)where Father’s Day falls on a weekend when the child is not with the Father, the child shall spend time with the Father from after school on Friday until 5.00pm Sunday;
(f)where Mother’s Day falls on a weekend that the child is in the Father’s care, the Father’s weekend…
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- Moxon and Fleet [2018] FCCA 1279
- Case
- [2018] FCCA 1279
- Decision Date
CaseChat Overview and Summary
The court was required to make orders concerning equal shared parental responsibility, the child's living arrangements, and the specific times the child would spend with each parent, including during school holidays and special occasions. Further issues included provisions for communication between the father and the child, notification requirements for illness and travel, communication protocols between the parties, and an injunction against denigration. The court also ordered the parties to attend a post-separation parenting program.
The court's reasoning was primarily based on the consent of the parties, as indicated by the notation that all orders, with specific exceptions, were made by consent. The orders reflect a detailed schedule for the child's time with each parent, aiming to ensure both parents have significant involvement in the child's life. The court applied principles of the *Family Law Act 1975* (Cth), particularly sections 65DA(2) and 62B, which relate to parenting orders and the consequences of contravention, as detailed in Annexure A.
The court made comprehensive orders by consent, dismissing all previous children's orders and establishing new arrangements for equal shared parental responsibility, the child's residence with the Mother, and a detailed schedule for the child's time with the Father. These orders also included provisions for communication, notification, and an injunction against denigration, along with a mandatory parenting program for both parties.
Orders
Orders of the court
1.
All previous children’s orders be dismissed.
2.
The parties have equal shared parental responsibility for the child, [X], born 2010 (the child).
3.
The child live with the Mother.
4.
The child spend time with the Father as follows:
(a) each Wednesday from after school until 7.30pm;
(b) each alternate Friday from after school care until Sunday at 5.00pm, provided that if Monday is a public holiday, until 5.00pm on Monday evening;
(c) for one half of all Victorian term holidays (subject to paragraph 4(d) below) commencing the week that follows on from the Father’s scheduled weekend until 7.00pm Friday;
(d) during the Easter school term holidays, the Father to have the week in which Easter falls in 2019 and each alternate year thereafter;
(e) where Father’s Day falls on a weekend when the child is not with the Father, the child shall spend time with the Father from after school on Friday until 5.00pm Sunday;
(f) where Mother’s Day falls on a weekend that the child is in the Father’s care, the Father’s weekend contact shall be suspended.
(g) on the child’s birthday, in each year:
(i) if it be on a weekend, from 12.00pm to 6.00pm; and
(ii) if it falls on school day, from after school until 6.30pm;
(h) as otherwise agreed by the parties in writing.
5.
Subject to paragraph 6 of this Order, the Father’s time with the child pursuant to paragraph 4(a) and (b) of this Order be suspended during the Christmas/Summer school holiday period and recommence in accordance with the regime set out at 4(a) and (b) from the conclusion of the Christmas/Summer school holiday period each year.
6.
For the Christmas/Summer school holiday period, the Father spend time with the child:
(a) commencing December 2018 and in each alternate year thereafter, from the conclusion of term 4 until 7.00pm on Christmas Eve, and then from 10.00am on Boxing Day until 7.00pm on 12 January; and
(b) commencing December 2019 and in each alternate year thereafter, from 7.00pm Christmas Eve until 10.00am Boxing Day and then from 12 January until 7.00pm on the Sunday prior to the commencement of term 1.
7.
For the purposes of changeover:
(a) on Wednesdays, pursuant to paragraph 4(a) of this Order, the Father shall collect the child from school and return the child to the Mother’s home; and
(b) on alternate weekends, when paragraph 4(b) is operative:
(i) the Father shall collect the child from after school care on Fridays;
(ii) the Mother shall collect the child from the Father’s home at the conclusion of the child’s spend time with her Father at 5.00pm on Sunday evenings provided that if Monday is a public holiday, at 5.00pm on that day,
or otherwise (whether as to the point, date or time of collection), as may be agreed in writing.
8.
The Father can telephone/Skype/Facetime the child each Monday, Tuesday and Thursday between 7.00pm and 7.30pm, and any other times requested by the child or agreed by the parties in writing, provided that:
(a) at first instance, the Father contacts the child on her mobile phone; and
(b) if the Father is unable to communicate with the child on her mobile phone, the Father is at liberty to contact the Mother’s telephone by text for the purpose of making arrangements to speak with the child.
9.
For the purposes of paragraph 8 of this Order:
(a) the parties use their best endeavours and do all things necessary to facilitate the Father’s contact with the child whether such contact be by telephone, Skype or Facetime;
(b) the Mother not hinder or prevent the child from communicating with the Father;
(c) the Mother not interfere with the communication that the child and Father are to have pursuant to that Order.
10.
Where there is a special family event of a party with whom the child is not spending time, that party give the other no less than seven days’ notice of the forthcoming special family event, and the party with whom the child is spending time shall not unreasonably withhold consent to the child attending the special family event.
11.
The party with whom the child is living or spending time notify the other party as soon as practicable of any illness or injury suffered by the child, and/or any medical attention required, and provide the name and address of any medical practitioner upon whom the child attended.
12.
If a party intends to travel overseas with the child:
(a) the travelling party shall give the other party at least 30 days’ notice of their intention to travel;
(b) both parties shall provide their written consent to the overseas travel, such consent not to be unreasonably withheld;
(c) the child’s passport shall be released to the travelling party upon notification of intention to travel; and
(d) the travelling party shall provide to the non-travelling party at least 14 days’ notice details by SMS of the itinerary, contact details and make up time.
13.
All communication between the parties shall be in writing by SMS or email and for this purpose each party keep the other informed of any change to that party’s telephone number or email address.
14.
The parties shall keep each other advised of any change to their residential address.
15.
The parties, by themselves, their servants and agents, be restrained by injunction from denigrating the other party or any member of the other party’s family in the presence or hearing of the child.
16.
The applicant and the respondent shall attend and complete, as soon as reasonably practicable, a post-separation parenting program, involving at least three separate sessions (the Program), at an organisation as nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) and shall:
(a) do all that is reasonably necessary to enrol in, undertake and successfully complete the Program;
(b) pay all costs associated with their participation in the Program;
(c) attend and complete, as soon as practicable, any further course or program recommended by the nominated organisation; and
(d) provide a copy of the certificate of completion of the Program/s to the other parties or their solicitors.
NOTATION:
A. All orders, save paragraphs 4(g) and 7 of this Order, are made by consent.
B. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) 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.
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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