FEDERAL MAGISTRATES COURT OF AUSTRALIA
ORBACH & SCHRODER [2012] FMCAfam 1324
FAMILY LAW – Children – relocation allowed following interim hearing – best interests considerations – strong views of young adolescent – challenge to ‘views of the child’ as conveyed to family consultant and to ICL at interim hearing – both parents ‘in limbo’ one for health reasons the other until decision of the court – what constitutes “emergency circumstances” to determine relocation for interim hearing – separation of siblings a significant consideration – consideration of evidence from older sibling – expertise of family consultants in interviewing children – expertise and responsibilities of ICL to obtain and present views of child.
Family Law Act1975, Part VII ss.11F, 60B(1) & (2), 60CA, 60CC(1) & (2), 60CC (3)(a) – (d), (f), (i), 60CD(2), 60CD(2)(c), 61DA, 62G(3A), 65DAA (1), (2) & (5), 68L, 68LA, 68LA(5)(b), 94AAA, 94AAA(3)
Adams v Randall (2012) 46 Fam LR 453
AMS v AIF, AIF v AMS (1999) 199 CLR 160; (1999) 163 ALR 501; (1999) 73 ALJR 927
B & B (2006) FamCA 1207
Cales v Cales (2011) 44 Fam LR 376
Champness & Hanson (2009) FLC ¶93-407
Collu & Rinaldo [2010] FamCAFC 53
Cowley v Mendoza (2010) 43 Fam LR 436
Davis v Davis (2007) 38 Fam LR 671
Department of Health & Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218
F v F (2008) 38 Fam LR 52
Fox v Percy (2003) 214 CLR 118
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Godfrey v Sanders [2007] FamCA 102
F v F (2008) 38 Fam LR 52
Goode v Goode (2007) 36 Fam LR 422
Harrison and Woollard (H & W) (1995) 18 Fam LR 788
Keach & Keach (2007) FLC ¶93-353
Kernot v Matson (2009) 39 Fam LR 695
McCall v Clark (2009) 41 Fam LR 483
Malcolm & Monroe (2011) FLC ¶93-460
Maluka v Maluka (2012) 45 Fam LR 129
Mazorski v Albright (2008) 37 Fam LR 518
Moose & Moose (2008) FLC ¶93-375
Morgan v Miles (2008) 38 Fam LR 275
MRR v GR (2010) 240 CLR 461
Muldoon & Carlyle (2012) FLC ¶93-513
Payne v Payne [2001] Fam 473
R and R: Children’s Wishes (2000) 25 Fam LR 712
In the Marriage of R (Children’s Wishes) (2002) FLC ¶93-108
Reynolds and Reynolds (1973) 47 ALJR 499
Shaeffer v Jacobs (2011) FLC ¶93-468
Sigley v Evor (2011) 44 Fam LR 439
Starr & Duggan (2009) FamCAFC 115
Taylor & Barker (2007) 37 Fam LR 461
U v U (2002) 211 CLR 238; (2002) 191 ALR 289; (2002) 76 ALJR 1416
VW v J (2006) 34 Fam LR 499
Vigano & Desmond (2012) FLC ¶93-509
Wiley & Wiley (2008) FamCAFC 153
ZN v YH (2002) 29 Fam LR 20F. Bates, “`Completing the Charm’: The Relevance of Children’s Wishes in Contested Cases: A Contextual Commentary,” (2003) 5 Newcastle Law Review 97
N. Taylor, “What do we know about involving children…
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- AGLC
- Orbach and Schroder [2012] FMCAfam 1324
- Case
- [2012] FMCAfam 1324
- Decision Date
CaseChat Overview and Summary
The legal issues addressed by the court included the allocation of parental responsibility, the primary residence of the child, permission for the mother to relocate with the child to a specified area in New South Wales, and the formulation of a detailed time-sharing schedule between the child and the father. Additionally, the court had to address provisions for communication between the parents and the child, health-related notifications, and the exchange of information regarding the child's schooling and medical care.
The court ruled that both parents have equal shared parental responsibility for the child [Y], who would reside with the mother. The mother was granted permission to relocate to the [M] area in New South Wales with the child. The father was allotted specific periods for spending time with the child, including entire school holidays at the end of terms 1 and 3, half of the June/July holidays, and specified weeks of the Christmas holidays. The court also mandated that the father organise transportation for the child during visitation periods and that the mother do the same at the conclusion of these periods. Furthermore, the court outlined detailed communication requirements between the parents and the child, including provisions for sharing school and medical information. Both parents were instructed to refrain from speaking negatively about each other in the presence of the child and to avoid discussing court proceedings with or in the presence of the child.
The final orders of the court included the equal shared parental responsibility for [Y], the child's residence with the mother, permission for the mother to relocate to the [M] area, a detailed visitation schedule for the father, and extensive communication and information-sharing requirements between the parents. The court also noted that the parents should endeavour to minimise the child's travel by coordinating visits with extended family and provided specific visitation arrangements for the eldest daughter [X].
Orders
Orders of the court
(1) Both parties have equal shared parental responsibility for the child, [Y] born [in] 1999.
(2) The child live with the Mother.
(3) The mother be permitted to relocate with the child to the [M] area, New South Wales.
(4) The Father spend time with the child as follows:
(a) the entire school holidays at the end of term 1 and term 3 in each and every school year, commencing on the first Saturday after school concludes until the last Friday of the school holiday period;
(b) for half the June/July school holidays in every year as agreed but failing agreement:
(i) in 2013 and each alternate year thereafter, from the first Saturday until the middle Saturday;
(ii) in 2014 and each alternate year thereafter, from the middle Saturday until the last Saturday.
(c) for the first four weeks of the Christmas school holidays in 2012 and each alternate year thereafter, unless otherwise agreed in writing;
(d) for the last four weeks of the Christmas school holidays in 2013 and each alternate year thereafter, unless otherwise agreed in writing.
(e) liberal telephone communication with the child as initiated by the Father.
(f) should the Father at any stage travel to the [M] area, upon provision of seven days notice to the mother, the mother will make [Y] available to spend time with the father as agreed.
(5) For the purposes of facilitating time between the Father and the child, the Father will organise transportation of the child at the commencement of time either by collecting the child from the Mother’s residence or organising flights, and conversely at the conclusion of holiday time the Mother will make arrangements to collect the child or organise flights, whichever is more suitable to the Mother.
(6) The child have reasonable telephone, Skype or other electronic communication with the father.
(7) Each parent shall authorise any school that the child shall attend to advise the other parent of any information they require, copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights, and inform the other parent of any emergency, remedial or correctional treatment required by the child as soon as is practicable.
(8) Each parent shall authorise any treating medical practitioner, dental practitioner, hospital or medical practice that the child shall attend from time to time to provide to the other parent any information regarding the child.
(9) If the child falls ill such that one of the parents take the child to the doctor, that parent shall notify the other parent of the doctor’s contact details, any medication prescribed and any treatment recommended. Each parent shall administer such medication when it falls due, adhere to any medical treatment plan and follow any directions from the doctor for the child. Each parent is then restrained from seeking alternate medical treatment unless the child’s condition appears to deteriorate.
(10) In the event that the children suffer any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent then the parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the child/children have been taken.
(11) Each parent shall advise the other parent of any change of any landline or mobile telephone numbers within twenty four (24) hours of that change.
(12) Each parent shall notify the other parent of any change of address with seven (7) days.
(13) Both parents are restrained from saying unkind or unpleasant things about the other to the child in their presence, and will use their best endeavours to prevent any other person from doing so.
(14) Both parents are restrained from discussing these Court proceedings with the child, or doing so in their presence, and will use their best endeavours to prevent any other person from doing so.
AND IT IS NOTED THAT:
A. The parties will use their best endeavours to reduce [Y]’s travel by communicating about intended visits with extended family.
B. The eldest daughter, [X] (born [in] 1994), spend time with her Father as [X] so wishes.
C. For the purposes of time pursuant to Notation B, the Father will organise transportation of [X] at the commencement of time either by collecting [X] from the Mother’s residence or organising flights, and conversely at the conclusion of holiday time the Mother will make arrangements to collect [X] or organise flights, whichever is more suitable to the Mother.
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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