FAMILY COURT OF AUSTRALIA
| OSCAR & TRAYNOR | [2008] FamCA 95 |
| FAMILY LAW – CHILDREN – Best interests – Consultation – Major long term issues – with whom a child spends time – alcohol and risk |
| Family Law Act 1975 (Cth) |
| Neil v Nott (1994) 68 ALJR 509 Mazorski v Albright [2007] FamCA 520 |
| APPLICANT: | MR OSCAR |
| RESPONDENT: | MS TRAYNOR |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Hammond |
| FILE NUMBER: | NCF | 3046 | of | 2002 |
| DATE DELIVERED: | 22 February 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Lismore |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 17-18 December 2007 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Jordan of Counsel |
| SOLICITOR FOR THE RESPONDENT: | B.L. Crane & Associates |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Hammond, Solicitor Legal Aid Commission of NSW |
ORDERS
All previous parenting orders are hereby discharged.
The Applications in a Case filed by the Father on 30 November 2006 and 13 November, 2007 and the Application for Contravention filed on 9 November 2007 each be dismissed.
Parental Responsibility
The mother have sole parental responsibility for the long term welfare, development and care of the children, O…, born … January 2000 and X …, born … December 2001, save that prior to making any decision with respect to any “major long-term issue” (as defined by the Family Law Act 1974 (as amended)) (“the Act”)), she shall give to the father not less than 28 days written notice of the nature and content of any such decision, to the address notified to the mother by the father in accordance with these orders.
Each of the parties shall retain parental responsibility for the children in respect of issues that are not major long-term issues, during the time that the children spend with each parent pursuant to these Orders.
Lives With
The said children shall live with the mother.
Spends Time With
The said children shall spend time and communicate with their father at all such times as might be agreed between the parties in writing, and failing agreement in accordance with the following orders:
6.1.On each alternate Saturday commencing 1 March 2008:
6.1.1.To a date four (4) months therefrom, for a period of four (4) hours commencing not earlier than 9.00am and concluding not later than 5.00pm;
6.1.2.Thereafter for four (4) months for a period of six (6) hours commencing not earlier than 9.00am and concluding not later than 5.00pm;
6.1.3.Thereafter between 9.00am and 5.00pm;
with each such period of time commencing and concluding at, and supervised by, the Family Centre in [northern NSW].
6.2.On Father’s Day for the period consistent with the timetable provided for in Order 6.1 with time with the father to occur in lieu of the Saturday otherwise falling closest to Father’s Day.
6.3.On Christmas Day in each year for a period of four hours commencing not earlier than 9.00am and concluding not later than 5.00pm.
6.4.In respect of each of the children’s birthdays:
6.4.1.If such birthday shall occur in a week in which, in accordance with Order 6.1,…
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- Oscar & Traynor [2008] FamCA 95
- Case
- [2008] FamCA 95
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate parenting orders for the children, specifically regarding parental responsibility, where the children would live, and the arrangements for the children to spend time with their father. The court also had to consider the father's access to information about the children's welfare and activities, and the role of a Family Centre in supervising changeovers and observing potential issues.
Murphy J ordered that all previous parenting orders be discharged. The mother was granted sole parental responsibility for the long-term welfare, development, and care of the children, with the caveat that she must provide the father with at least 28 days' written notice of any decision concerning a "major long-term issue." Both parents retained parental responsibility for day-to-day matters during the time the children spent with them. The children were ordered to live with the mother. Specific arrangements were made for the children to spend time with their father, including supervised changeovers at a Family Centre, with provisions for alternate Saturdays, Father's Day, Christmas Day, and the children's birthdays. The mother was also directed to actively encourage the children to communicate with their father and to provide him with information regarding the children's schooling, extracurricular activities, and health. The court also ordered the Family Centre to monitor changeovers and observe any signs that the father might be adversely affected by alcohol.
Orders
Orders of the court
1.
All previous parenting orders are hereby discharged.
2.
The Applications in a Case filed by the Father on 30 November 2006 and 13 November, 2007 and the Application for Contravention filed on 9 November 2007 each be dismissed.
Parental Responsibility
3.
The mother have sole parental responsibility for the long term welfare, development and care of the children, O…, born … January 2000 and X …, born … December 2001, save that prior to making any decision with respect to any “major long-term issue” (as defined by the Family Law Act 1974 (as amended)) (“the Act”)), she shall give to the father not less than 28 days written notice of the nature and content of any such decision, to the address notified to the mother by the father in accordance with these orders.
4.
Each of the parties shall retain parental responsibility for the children in respect of issues that are not major long-term issues, during the time that the children spend with each parent pursuant to these Orders.
Lives With
5.
The said children shall live with the mother.
Spends Time With
6.
The said children shall spend time and communicate with their father at all such times as might be agreed between the parties in writing, and failing agreement in accordance with the following orders:
6.1. On each alternate Saturday commencing 1 March 2008:
6.1.1. To a date four (4) months therefrom, for a period of four (4) hours commencing not earlier than 9.00am and concluding not later than 5.00pm;
6.1.2. Thereafter for four (4) months for a period of six (6) hours commencing not earlier than 9.00am and concluding not later than 5.00pm;
6.1.3. Thereafter between 9.00am and 5.00pm;
with each such period of time commencing and concluding at, and supervised by, the Family Centre in [northern NSW].
6.2. On Father’s Day for the period consistent with the timetable provided for in Order 6.1 with time with the father to occur in lieu of the Saturday otherwise falling closest to Father’s Day.
6.3. On Christmas Day in each year for a period of four hours commencing not earlier than 9.00am and concluding not later than 5.00pm.
6.4. In respect of each of the children’s birthdays:
6.4.1.If such birthday shall occur in a week in which, in accordance with Order 6.1, the children would spend time with their father, then they shall spend time with him in accordance with Order 6.1;
6.4.2.If such birthday shall occur in a week in which time with the father does not otherwise occur in accordance with Order 6.1, then for a period of four hours commencing not earlier than 9.00am and concluding not later than 5.00pm on the Saturday following such birthday.
For the purposes of this order a week shall commence on a Sunday.
6.5. The Mother shall do all such things as might be necessary to actively encourage the children to communicate regularly with their father by letter or card.
Other Issues
7.
The Mother shall:
7.1. Do all such things and sign all such documents so as to authorise and permit the Father to obtain all reasonable information with respect to the children’s scholastic, sporting and extra-curricular activities;
7.2. In any event, provide to the father as soon as reasonably practicable after receipt, a copy of any school report, school achievement award, sporting award, or the like, received by the children, either from their school, or any sporting club or organisation in which they are involved;
7.3. Provide to the Father, details of each such sporting or other extra-curricular activity or club in which the children are involved;
7.4. Do all such things as might be required, so as to authorise and permit, any doctor or other health professional providing advice and/or treatment to the children, to provide such information as might reasonably be required by the father;
7.5. In any event provide to the Father a copy of any written report received in the usual course of treatment by any medical specialist, counsellor, psychologist, or other treating professional for the children, as soon as reasonably practicable after receipt of same by her;
7.6. Keep the Father appraised in writing, of any issues effecting the children’s education in any substantial way, including, but not limited to, any recommendations for specialised or remedial courses, courses for gifted children, or any courses, programmes, or activities undertaken or suggested as being undertaken, by the children outside the usual course of schooling.
8.
The address to which all notifications required of the Mother by these Orders shall be:
8.1. …, being the Notice of Address for Service provided by the Father for the purpose of these proceedings;
OR
8.2. such other address as is notified in writing by the Father to the Mother.
IT IS FURTHER ORDERED THAT
9.
The Independent Children’s Lawyer shall provide a copy of these Orders and Reasons for Judgment to the Director of the Family Centre in [northern NSW] as soon as reasonably practicable after the date of these Orders.
10. Each of the mother and father shall do all such things and sign all such documents as might be necessary to request that the Family Centre monitor and take notes of their observations of the changeovers provided for in these Orders and, in particular but not limited to, any observable signs that, in the opinion of any responsible person at the said Family Centre, the father is adversely affected by alcohol.
11. Pursuant to Rule 17.01 of the Family Law Rules 2004, these Orders shall take effect:
11.1. For the purposes of Rule 22.03(1) (relating to the commencement of the Appeal period) from 29 February, 2008;
11.2. Otherwise, from 22 February, 2008.
12. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period or the determination of any application for costs, whichever is the later.
13. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
14. The applications for any further or other orders be dismissed and the matter be removed from the list of cases awaiting finalisation.
15. All material produced pursuant to subpoenae issued for the production of documents be returned to their respective providers after the time for appeal has elapsed.
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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