FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PARER & TAUB (No. 2) | [2012] FMCAfam 1250 |
| FAMILY LAW – Parenting – delineation of parental responsibility – spend time with – meaningful relationship – transgender parent. FAMILY LAW – Costs – application by party – application by Independent Children’s Lawyer – application dismissed. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65L, 68LA, 69ZV, 117 Federal Magistrates Court Act 1999, s.42 Evidence Act 1995, ss.76, 77, 78, 79, 135, 136 Births, Deaths and Marriages Registration Act 1995 (NSW), ss.32I, 32J Anti-Discrimination Act 1977 (NSW), Part 3A International Convention on the Rights of the Child |
| Re: K [1994] FLC 92-461 Jones v Dunkel (1959) 101 CLR 298 Goode & Goode (2006) FLC 93-286 Marvel & Marvel (No.2) [2010] FamCAFC 101 MRR & GR [2010] HCA 4 Johnson & Page [2007] FamCA 1235 B and B (1993) FLC 92-357 Cachia v Hanes [1994] HCA 14 B & P [2000] FamCA 392 Oscar & Traynor [2008] FamCAFC 158 London Scottish Benefits Society v Chorley (1984) 13 QBD 872 Lawrence v Nikolaidis [2003] NSWCA 129 Bennett (1991) FLC 92-191) Dean & Dean (unreported) P and P and Legal Aid Commission of New South Wales Separate Representative and Human Rights and Equal Opportunity Commission Intervener [1995] FamCA 44 |
| Applicant: | MS PARER |
| Respondent: | MS TAUB |
| File Number: | (P)PAC 2389 of 2009 |
| Judgment of: | Harman FM |
| Hearing dates: | 21 and 22 March 2012; 10,11,12 and 13 September 2012; 31 October 2012; 1 and 9 November 2012 |
| Date of Last Submission: | 9 November 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 19 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sperling |
| Solicitors for the Applicant: | Tiyce & Partners Lawyers |
| Respondent: | Self Represented |
| Counsel for the Independent Children’s Lawyer: | Ms Snelling |
| Solicitors for the Independent Children’s Lawyer: | Stephen W. Bell & Associates |
ORDERS
That all prior parenting orders with respect to the children and young people:
X born (omitted) 1995;
Y born (omitted) 2000; and,
Z born (omitted) 2004;
shall be and are hereby discharged.
That Ms Taub have sole parental responsibility for Y and Z as regards decisions relating to their education and health and subject to the following:
(a)Ms Taub shall do all things, sign all documents and give all consents and authorities necessary to ensure that Ms Parer’s details (including but not limited to her name and contact details) are provided to any school attended by Y and/or Z and recorded with any school as both a parent and emergency contact person;
(b)Ms Taub shall do all things within her power to ensure that Ms Parer is able to obtain directly from any school attended by Y and/or Z any reports, newsletters, notification of events or other information as Ms Parer may desire; and
(c)Ms Taub shall do all things, sign all documents and give all consents and authorities necessary to ensure that Ms Parer’s details are provided to any medical practitioner with whom Y and/or Z are attending and including specifically any counsellor, psychologist or psychiatrist and…
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- AGLC
- PARER & TAUB (No. 2) [2012] FMCAfam 1250
- Case
- [2012] FMCAfam 1250
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were the delineation of parental responsibility and the specifics of the children's contact with each parent. The court had to consider the rights and responsibilities of both parents in the context of the children's best interests, particularly focusing on the needs of the children to maintain a meaningful relationship with both parents. The court also had to consider the application for costs by the Independent Children's Lawyer and each parent.
The court concluded that it was in the best interests of the children for Ms Taub to have sole parental responsibility for decisions relating to the education and health of two of the children, with specific provisions allowing Ms Parer to remain involved in these areas. The court granted equal shared parental responsibility for the children to both parents, except for the specified areas of education and health. The contact arrangements were carefully structured to ensure the children could maintain a relationship with their father while living primarily with their mother. The court also addressed the issue of costs, dismissing the applications by both the Independent Children's Lawyer and Ms Taub.
The court's final orders included the discharge of prior parenting orders and the establishment of new orders that aimed to balance the needs of the children with the rights of both parents. The orders also included provisions for ongoing contact, communication, and involvement of both parents in the children's lives, as well as specific requirements for the provision of information and accommodation details. The court's orders were designed to facilitate a stable and supportive environment for the children, recognising the importance of both parents in their lives.
Orders
Orders of the court
1.
That all prior parenting orders with respect to the children and young people:
X born (omitted) 1995;
Y born (omitted) 2000; and,
Z born (omitted) 2004;
shall be and are hereby discharged.
2.
That Ms Taub have sole parental responsibility for Y and Z as regards decisions relating to their education and health and subject to the following:
(a) Ms Taub shall do all things, sign all documents and give all consents and authorities necessary to ensure that Ms Parer’s details (including but not limited to her name and contact details) are provided to any school attended by Y and/or Z and recorded with any school as both a parent and emergency contact person;
(b) Ms Taub shall do all things within her power to ensure that Ms Parer is able to obtain directly from any school attended by Y and/or Z any reports, newsletters, notification of events or other information as Ms Parer may desire; and
(c) Ms Taub shall do all things, sign all documents and give all consents and authorities necessary to ensure that Ms Parer’s details are provided to any medical practitioner with whom Y and/or Z are attending and including specifically any counsellor, psychologist or psychiatrist and so as to enable Ms Parer to consult and be consulted with respect to same and, should the counsellor, psychologist or psychiatrist consider it useful or desirable, to involve and include Ms Parer in appointments or service delivery.
3.
Ms Parer and Ms Taub shall have equal shared parental responsibility for Y and Z other than for matters dealt with above.
4.
Ms Parer and Ms Taub shall each keep the other advised at all times of their residential address, email address and telephone contact number and provided, however, that save for the purpose of complying with these orders that such information as is provided by each to the other shall not be disclosed by either to any other person nor shall either attend at, approach or cause any other person to attend at or approach the other’s residence.
5.
Ms Parer and Ms Taub shall advise the other immediately of any significant illness or hospitalisation relating to Y and/or Z whilst in their respective care and such notice shall be given contemporaneous with the event and shall include sufficient information and authority to enable both Ms Parer and Ms Taub to be fully consulted, advised and involved in any treatment decisions.
6.
Y and Z shall live with their mother, Ms Taub.
7.
Y shall spend time with her father, Ms Parer, at such times and in such fashion as Y may desire and provided that should Y express to her mother, Ms Taub, any desire to spend time with or communicate with the father then Ms Taub shall assist Y in any way she is able to allow that time or communication to occur.
8.
Z shall spend time with her father, Ms Parer:
(a) For a period of six months from the date hereof and thereafter and until such time as Ms Parer obtains and confirms with Ms Taub that she has obtained suitable accommodation (as defined hereafter) each alternate Sunday from 10.00am until 5.00pm or such period as can be accommodated on the basis of available changeover slots with the (omitted) Contact Service (including such time to occur on Saturday instead of Sunday if that is more practicable to the (omitted) Contact Service);
(b) Following the above and upon Ms Parer obtaining suitable accommodation, each alternate weekend from 10.000am Saturday until 5.00pm Sunday (or commencing Saturday and concluding Sunday at such times as can be accommodated by the (omitted) Contact Service);
(c) Such further and/or other times as Ms Taub and Ms Parer agree from time to time;
(d) All changeovers shall occur through the (omitted) Contact Service and provided that should service be withdrawn then changeovers shall occur within the western ticket concourse, (omitted) Railway Station.
9.
For the purpose of these orders, suitable accommodation shall be taken to be available to Ms Parer when:
(a) Ms Parer obtains accommodation of which she is the tenant or a co-tenant upon a lease or occupancy agreement;
(b) That accommodation includes a separate bed for Z;
(c) Ms Parer has taken occupation of that accommodation and advised the address of same to Ms Taub.
10.
Ms Parer shall be entitled to telephone and speak with Y and Z at all reasonable times and with reasonable frequency including but not limited to each Wednesday between 5.30pm and 6.00pm and with respect to same:
(a) Ms Taub shall advise Ms Parer of a telephone number upon which each of Y and Z can be contacted;
(b) Y and Z shall be allowed to speak with their father on any occasion Ms Parer shall telephone them and shall be allowed to speak with privacy (and including by the telephone service that Y and/or Z are using not being on speaker) and without interruption or distraction.
11.
Ms Parer and Ms Taub shall attend, and Ms Taub shall do all things necessary and within her power to cause X, Y and Z to attend, upon a Family Consultant at this Court at 9.00am on 20 November 2012 and for the purpose of the Family Consultant:
(a) Explaining to X, Y and Z the orders made;
(b) Explaining to Y and X that Ms Parer had, by the orders she had sought in these proceedings, proposed that they spend time with her (their father) in accordance with their views and wishes and not otherwise;
(c) Explaining the reasons for Judgment delivered today to each of them in such terms and in such detail (including at the discretion of the Family Consultant allowing X and/or Y to read or be appraised of the reasons for Judgment accompanying these orders or portions thereof).
12.
Pursuant to s.65L of the Family Law Act, that the above Family Consultant supervise compliance with these orders for a period of nine months from today’s date and during that period arrange such appointments (of their own volition or at the request of either party) as they consider necessary and appropriate for the parties or either of them or for Y and Z or either of them and make such recommendations and referrals for the parties or for Y and/or Z as they consider appropriate.
13.
Ms Taub shall request that the counselling service presently engaged and dealing with Y also meet with Z and for the purpose of assisting Z in any fashion which appears desirable or of benefit to her and subject to the counselling service considering such service appropriate to ensure Z attends at such times, dates and places as necessary to engage with that service.
14.
Leave is granted to the Independent Children’s Lawyer to seek an order for contribution to the costs of the Independent Children’s Lawyer and as against each parent.
15.
The Independent Children’s Lawyer’s application for costs is dismissed.
16.
Ms Taub’s application for costs is dismissed.
17.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
18.
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.
19.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
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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