FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mulliner & Riggs (No 2) [2024] FedCFamC2F 367
File number(s): MLC 8006 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 5 March 2024 Catchwords: FAMILY LAW – final parenting orders – ex tempore reasons – application for equal time changed at last minute – dispute was whether school term there should be a 6/8 arrangement or a 5/9 arrangement – child with special needs – previous cooperative arrangement between parents ended when one sought to relocate with child and other overheld child – two good but different parents – orders for 8/6 arrangement Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA and 65DAA Cases cited: Adamson & Adamson (2014) FLC 93-622
Division: Division 2 Family Law Number of paragraphs: 66 Date of last submission/s: 5 March 2024 Date of hearing: 4-5 March 2024 Place: Melbourne The Applicant: Mr Mulliner Counsel for the Respondent: Ms Juneja Solicitor for the Respondent: Cathleen Corridon and Associates ORDERS
MLC 8006 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MULLINER
Applicant
AND: MS RIGGS
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1.That all previous parenting orders are discharged from Thursday 14 March 2024.
AND THE COURT ORDERS BY CONSENT THAT:
2.The parents, Mr Mulliner (‘the Father’) and Ms Riggs (‘the Mother) have equal shared parental responsibility for the child X born in 2012.
AND THE COURT ORDERS THAT:
During school term
3.Commencing Thursday 14 March 2024, during school term, X live with the Father from after school Thursday until the commencement of school the following Wednesday, and each alternate week thereafter at those times.
4.That X otherwise live with the Mother.
AND THE COURT ORDERS BY CONSENT THAT:
During school holidays
5.X live with and spend time with each parent during school holidays as follows:
(a)For half of the school term holidays as agreed between the parents and failing agreement with the Father to have the first half in even numbered years and second half in odd numbered years with changeover to occur at 10:00am on the middle day of the holidays and the Mother to have the second half in even numbered years and first half in odd numbered years;
(b)For half of the long summer holidays as agreed and failing agreement on a week about basis, commencing with the Father in even numbered years and with the Mother in odd numbered years, with changeover to occur at 10:00am on a Monday.
6.X spend time and communicate with each parent for special occasions as agreed and failing agreement as follows:
(a)With the Father on Father’s Day weekend from 12:00pm on the Saturday before Father’s Day until commencement of school the next day following Father’s Day;
(b)With the Mother on Mother’s Day weekend from 12:00pm on the Saturday before Mother’s Day until commencement of school the next day following Mother’s Day;
(c)For…
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- [2024] FedCFamC2F 367
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CaseChat Overview and Summary
The primary legal issues before the court involved the allocation of parenting time during school terms and holidays, as well as the resolution of other practical matters such as communication, medical care, and educational decisions. The court had to balance the need for stability and routine for the child with the parents' respective needs and preferences. The court also had to consider the implications of the parents' decision to relocate and its impact on the existing arrangements.
Judge O'Shannessy found that both parents were capable of providing a loving and stable environment for the child, but they had different approaches to parenting. The court determined that an equal shared parental responsibility arrangement was appropriate, but the specific time-sharing arrangements needed to be tailored to the child's needs and the parents' circumstances. During school terms, the child would live with the father from after school on Thursdays until the start of school on Wednesdays the following week, with alternating weeks for each parent. During school holidays, the child would split their time equally between the parents, with specific arrangements for even and odd-numbered years. The court also outlined detailed provisions for communication, medical care, and educational matters, as well as restrictions on the parents' behaviour to protect the child's welfare.
The court's final orders included detailed parenting arrangements for school terms and holidays, provisions for communication and medical care, and restrictions on the parents' conduct to ensure the child's well-being. Both parents were required to complete a parenting program and were restrained from relocating the child's residence more than 45 minutes from their current residence. The court also noted that the child would remain enrolled in Town B Primary School unless otherwise agreed.
Orders
Orders of the court
MLC 8006 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MULLINER
Applicant
AND:
MS RIGGS
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1. That all previous parenting orders are discharged from Thursday 14 March 2024.
AND THE COURT ORDERS BY CONSENT THAT:
2. The parents, Mr Mulliner (‘the Father’) and Ms Riggs (‘the Mother) have equal shared parental responsibility for the child X born in 2012.
AND THE COURT ORDERS THAT:
During school term
3. Commencing Thursday 14 March 2024, during school term, X live with the Father from after school Thursday until the commencement of school the following Wednesday, and each alternate week thereafter at those times.
4. That X otherwise live with the Mother.
AND THE COURT ORDERS BY CONSENT THAT:
During school holidays
5. X live with and spend time with each parent during school holidays as follows:
(a) For half of the school term holidays as agreed between the parents and failing agreement with the Father to have the first half in even numbered years and second half in odd numbered years with changeover to occur at 10:00am on the middle day of the holidays and the Mother to have the second half in even numbered years and first half in odd numbered years;
(b) For half of the long summer holidays as agreed and failing agreement on a week about basis, commencing with the Father in even numbered years and with the Mother in odd numbered years, with changeover to occur at 10:00am on a Monday.
6. X spend time and communicate with each parent for special occasions as agreed and failing agreement as follows:
(a) With the Father on Father’s Day weekend from 12:00pm on the Saturday before Father’s Day until commencement of school the next day following Father’s Day;
(b) With the Mother on Mother’s Day weekend from 12:00pm on the Saturday before Mother’s Day until commencement of school the next day following Mother’s Day;
(c) For Easter in 2023 and all odd numbered years thereafter:
(i) With the Mother from 5.00pm on the Thursday before good Friday until 5.00pm on the Saturday after Good Friday; and
(ii) With the Father from 5.00pm on the Saturday after Good Friday until 5.00pm on Easter Monday.
(d) For Easter in 2024 and all even numbered years thereafter:
(i) With the Father from 5.00pm on the Thursday before good Friday until 5.00pm on the Saturday after Good Friday; and
(ii) With the Mother from 5.00pm on the Saturday after Good Friday until 5.00pm on Easter Monday.
(e) For Christmas in 2025 and all odd numbered years thereafter:
(i) With the Father from 3.00pm Christmas Eve until 3.00pm Christmas Day and;
(ii) With the Mother from 3.00pm Christmas Day until 3.00pm Boxing Day;
(f) For Christmas in 2024 and all even numbered years thereafter:
(i) With the Mother from 3.00pm Christmas Eve until 3.00pm Christmas Day and;
(ii) With the Father from 3.00pm Christmas Day until 3.00pm Boxing Day.
(g) On the child’s birthday the parent who does not have the care of the child on that day spends time as agreed and failing agreement:
(i) On a school day from the conclusion of school until 7:00pm;
(ii) On a weekend from 10:00am until 2:00pm.
(h) On the parent’s birthday if the child is not already spending time with that parent then time as agreed and failing agreement:
(i) On a school day from the conclusion of school until 7:00pm;
(ii) On a weekend from 10:00am until 2:00pm;
(iii) Any other special occasion as agreed between the parents.
7. The routine of school term time shall resume thereafter as if the school holidays and special occasions had not intervened.
8. The parents communicate via text message or email, save for in the event of an emergency by telephone.
9. Both parents ensure that the child takes any prescribed medication whilst he is in their care with the Mother to ensure that the Father is provided with such medication for the child’s time with him and
10. In relation to medical and allied health issues concerning the child:
(a) Each parent keep the other advised and fully informed as to any medical health issues, including details of any appointments concerning X and authorise the other to liaise with and speak with X’s treating practitioners and any pharmacist dispensing medication about same;
(b) Each of the parents be permitted to, and do all acts and things to authorise the other to, receive copies of all medical, pharmaceutical (chemist) and allied health documents relevant to the child; and
(c) Each parent immediately notify the other in the event that the child suffers a serious illness or medical injury whilst in their respective care; and
(d) The Mother be and is responsible for arranging medication and therapy (if any) for X and keeping the father informed of same in a timely manner and if necessary the Father accept the Mother’s decision about such matters.
(e) The Father be responsible for and pay to the Mother all of her out of pocket expenses for X’s medication incurred in 2024, from this day, and each alternate year thereafter and the Mother otherwise pay for such medication out of pocket expenses and neither party claim any credit or adjustment or alteration by reason of such payment in regard to any assessment of child support.
11. In relation to educational matters concerning the child:
(a) Each parent be entitled, and do all acts and things to authorise the other, to receive copies of all documents normally provided by schools to parents, including but not limited to school reports, newsletters, photographs and any other similar documents provided to parents;
(b) Each parent, and do all acts and things to authorise the other to, be permitted to attend any function or event at the school to which parents are normally invited including but not limited to concerts, sports days, parent teacher interviews and the like.
12. Each party be permitted to, and do all acts and things to authorise the other to, attend all extracurricular events and functions relevant to the child and each party keep the other advised as to such events and provide no less than seventy-two (72) hours’ notice thereof.
13. The parents are to at all times keep each other advised of their current residential address, email address and mobile telephone number with any change in these details to be advised in writing within twenty-four (24) hours of the change.
14. The parents be and are hereby restrained by injunction from:
(a) Using any illicit substances and/or consuming alcohol in excess of a BAC of .05 no less than twenty-four (24) hours prior to the commencement of their time with the child and during their time with the child.
(b) Abusing, insulting, belittling, rebuking or otherwise denigrating or speaking negatively about the child or the other party or any member of their family to or in the presence or hearing of the child, and from permitting any other person from doing so;
(c) Discussing these proceedings with or in the presence or hearing of the child and from permitting any other person from doing so; and
(d) Exposing the child to any form of violence, threats or intimidation and from permitting any other person from doing so.
15. Unless he or she has already undertaken same, the parents enrol in and complete the Tuning into Kids Parenting Program forthwith and provide evidence of same to one another.
16. The child remained enrolled in Town B Primary School unless otherwise agreed in writing between the parties or order of the Court.
17. Both parents be restrained from moving X’s residence more than 45 minutes from their current residence.
18. The parents be restrained by injunction from speaking negatively about the other party or any member of their family within the hearing or presence of the child.
AND THE COURT NOTES THAT:
A. The parents agree that X will be enrolled in Town B High School for his secondary school.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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