FEDERAL CIRCUIT COURT OF AUSTRALIA
| PENMAN & MORGAN & ANOR | [2015] FCCA 485 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – live with and spend time arrangements – parents unable to agree on sporting and extra-curricular activities and arrangements – older children attending boarding school – arrangements with respect to the youngest child in light of that and the older children’s expressed views – whether there should be make up time following overseas holidays – child support assessment issues. |
| Legislation: Family Law Act 1975, ss.4, 60CA, 60CC, 61DA, 65DAA, 65DAB, 65DAC |
| Champness v Hanson [2009] FamCAFC 96; (2009) FLC 93-407 Goode & Goode [2006] FamCA 1346 Hall & Hall (1979) FLC 90-713 Newlands & Newlands (2007) 37 Fam LR 103 |
| Applicant: | MR PENMAN |
| First Respondent: | MS MORGAN |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| Intervenor: | MS PENMAN |
| File Number: | SYC 902 of 2011 |
| Judgment of: | Judge Kemp |
| Hearing dates: | 26, 27 and 28 February 2014, 21 and 22 August 2014 and 9 December 2014 |
| Date of Last Submission: | 9 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the First Respondent: | Mr D Leamey and Mr Kuo, David Leamey Solicitor & Barrister |
| Solicitor for the Second Respondent: | Mr Gouliaditis and Mr Dean, Child Support Registrar |
| Solicitors for the Independent Children’s Lawyer: | Mr MacDiarmid, Mark MacDiarmid Family Law |
| The Intervenor appeared in person |
THE COURT ORDERS THAT
The following final parenting orders made on 6 June 2011 be discharged: being orders 2, 4, 5, 6, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21 and 22 and the remaining orders stand.
The parenting orders of 22 August 2014 stand.
By consent, the father have sole parental responsibility for the children X born (omitted) 1998 (“X”) and Y born (omitted) 2000 (“Y”) (“the older children”) and:
(a)the father shall keep the mother advised of the older children’s progress including but not limited to matters of the older children’s wellbeing, health, education and extra-curricular activities;
(b)the mother shall be entitled to communicate with the father any concerns that she has or any suggestions she wishes to make for the progress and wellbeing of the older children;
(c)the parents shall consult with the older children’s school and extra-curricular sporting providers in relation to the appropriateness of the frequency and overall balance (taking into account the older children’s relationships with people significant in their lives, their developmental needs and their other obligations including schoolwork) of the older children’s actual and proposed sporting activities; and
(d)the father shall give due…
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- Case
- [2015] FCCA 485
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were the allocation of parental responsibility for the children, including decisions regarding their wellbeing, health, education, and extra-curricular activities. The court also had to determine the living arrangements and time spent by each child with their parents, with specific considerations for the differing ages and developmental stages of X, Y, and Z. Furthermore, the court addressed provisions for the children's passports, enrolment in educational institutions, and arrangements for make-up time if a parent's time with a child was suspended due to overseas travel.
The court's reasoning and the principles applied were largely based on consent orders reached by the parties. These consent orders established a phased approach to parental responsibility for Z, with the mother having sole responsibility until 31 December 2016, followed by shared responsibility with the father from 1 January 2017, and finally, sole responsibility for the father from 1 January 2019, including extra-curricular activities. For the older children, X and Y, the father was granted sole parental responsibility, with provisions for the mother to be kept informed and to raise concerns. Specific arrangements were also made regarding Z's schooling at (omitted) College and the management of his extra-curricular activities, with a gradual transition of responsibility to the father. The court also made orders concerning passport access and make-up time for suspended periods of contact.
The final orders discharged specific previous parenting orders, confirmed others, and established detailed consent arrangements for parental responsibility, living arrangements, and communication regarding the children X, Y, and Z. The proceedings were adjourned for mention on 19 March 2015, with directions for the Independent Children's Lawyer to notify the second respondent of the adjourned date and to explain the orders to the children.
Orders
Orders of the court
1.
The following final parenting orders made on 6 June 2011 be discharged: being orders 2, 4, 5, 6, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21 and 22 and the remaining orders stand.
2.
The parenting orders of 22 August 2014 stand.
3.
By consent, the father have sole parental responsibility for the children X born (omitted) 1998 (“X”) and Y born (omitted) 2000 (“Y”) (“the older children”) and:
(a) the father shall keep the mother advised of the older children’s progress including but not limited to matters of the older children’s wellbeing, health, education and extra-curricular activities;
(b) the mother shall be entitled to communicate with the father any concerns that she has or any suggestions she wishes to make for the progress and wellbeing of the older children;
(c) the parents shall consult with the older children’s school and extra-curricular sporting providers in relation to the appropriateness of the frequency and overall balance (taking into account the older children’s relationships with people significant in their lives, their developmental needs and their other obligations including schoolwork) of the older children’s actual and proposed sporting activities; and
(d) the father shall give due regard to such matters as are raised by the mother, the older children’s school and extra-curricular sporting providers but, in the event that no agreement is reached between the parents, then the father shall be the person to make the final determination or decision.
4.
By consent, X and Y shall live with and spend time with their parents in accordance with their views.
5.
The mother shall have until 31 December 2016, sole parental responsibility for the child Z born (omitted) 2005 (“Z”) and:
(a) the mother shall keep the father advised of Z’s progress including but not limited to matters of Z’s wellbeing, health, education and extra-curricular activities;
(b) the father shall be entitled to communicate with the mother any concerns that he has or any suggestions he wishes to make for the progress and wellbeing of Z;
(c) the parents shall consult with Z’s school(s) and extra-curricular sporting providers in relation to the appropriateness of the frequency and overall balance (taking into account Z’s relationships with people significant in his life, his developmental needs and his other obligations including schoolwork) of Z’s actual and proposed sporting activities; and
(d) the mother shall give due regard to such matters as are raised by the father, Z’s school(s) and extra-curricular sporting providers but in the event that no agreement is reached between the parents, then the mother shall be the person to make the final determination or decision.
6.
The father shall have from 1 January 2017, parental responsibility for Z (excluding Z’s extra-curricular sporting activities), subject to the following:
(a) the father shall keep the mother advised of Z’s progress including but not limited to matters of Z’s wellbeing, health and education;
(b) the mother shall be entitled to communicate with the father any concerns that she has or any suggestions she wishes to make for the progress and wellbeing of Z;
(c) the father shall give due regard to such matters as are raised by the mother, Z’s school(s) but in the event that no agreement is reached between the parents, then the father shall be the person to make the final determination or decision; and
(d) up until 31 December 2018, the mother shall have parental responsibility to determine Z’s extra-curricular sporting activities in relation to the appropriateness of the frequency and overall balance (taking into account Z’s relationships with people significant in his life, his developmental needs and his other obligations including schoolwork) of Z’s actual and proposed sporting activities and the father shall be entitled to communicate with the mother any concerns that he has or any suggestions he wishes to make for the progress and wellbeing of Z and the mother shall give due regard to such matters as are raised by the father, but in the event no agreement is reached between the parents, the mother shall be the person who makes the final determination or decision with respect to those extra-curricular sporting activities.
7.
The father shall have from 1 January 2019, sole parental responsibility for Z (including Z’s extra-curricular sporting activities), subject to the following:
(a) the father shall keep the mother advised of Z’s progress including but not limited to matters of Z’s wellbeing, health, education and extra-curricular activities;
(b) the mother shall be entitled to communicate with the father any concerns that she has or any suggestions she wishes to make for the progress and wellbeing of Z;
(c) the parents shall consult with Z’s school(s) and extra-curricular sporting providers in relation to the appropriateness of the frequency and overall balance (taking into account Z’s relationships with people significant in his life, his developmental needs and his other obligations including schoolwork) of Z’s actual and proposed sporting activities; and
(d) the father shall give due regard to such matters as are raised by the mother, Z’s school(s) and extra-curricular sporting providers but, in the event that no agreement is reached between the parents, then the father shall be the person to make the final determination or decision.
8.
Subject to the orders of 22 August 2014, during school term, Z shall:
(a) while not at (omitted) College (omitted) (“(omitted) College”) live with the mother each alternate week from after school on Monday until the commencement of school on the next following Monday and he shall otherwise live with the father, such order to continue in terms of the existing orders of 22 August 2014.
(b) while at (omitted) College and up until 31 December 2018, live with the mother every second weekend from school pick up time at (omitted) College, on Friday (or from the completion of any sporting activities on Saturday) until Monday morning at school (or Tuesday morning if Monday is a public holiday) and he shall, otherwise live with the father.
(c) while at (omitted) College and as and from 1 January 2019, live with and spend time with his parents in accordance with his views.
9.
For the purposes of order 10 of the orders of 22 August 2014, in the event that the mother proposes to remove the children or any of them from the Commonwealth of Australia, then provided notification of the proposed travel is given in accordance with that order, the children’s passports shall be provided to the mother by the father within 7 days after the notice is received. The mother shall then return the passports to the father within 7 days following the completion of any trip.
10.
The parents do all acts and things and sign all documents necessary to enrol Z in (omitted) College as a weekly boarder for his secondary schooling, such documents to be completed and forwarded by no later than the date specified by the school and the father is to ensure that (omitted) College records the mother’s details on any school enrolment or student action form as a relevant contact parent in any case of emergency contact.
11.
That if the mother’s time with Z in the period 30 December 2014 to 15 January 2015 was suspended as a result of the father travelling overseas with Z, then the mother shall have make up time of the same period as agreed between the parties to be effected by 30 June 2015 and if there is no agreement, the said time period will form part of the mother’s time for the next two school holiday periods after 30 June 2015 and the father’s time will be suspended until that make up time has occurred.
12.
That if a party’s time with Z is suspended for 3 days or more as a result of the other party travelling with Z, pursuant to order 10 of the orders made 22 August 2014, then that party shall have make up time for the same period as the suspended period as agreed and if there is no agreement, then that make up time shall be taken from the other party’s time in the following school holiday periods as nominated in writing by the party whose time was suspended, with such time to be fully made up within 6 months of the last day of the suspended time, to the intent that if a party’s time is suspended for less than 3 days, there is to be no make up time provided.
13.
These orders be provided to (omitted) College school and that they be deemed sufficient authority for the said school to provide any reports as to the children’s schooling or other identified issues to the mother, as requested by her.
14.
Prior to any application for discharge of the Independent Children’s Lawyer, the Independent Children’s Lawyer will forward a copy of these orders and any existent orders to the Principal at (omitted) College and meet with the children so as to explain the orders and the Court’s decision herein.
15.
The proceedings be stood over to 19 March 2015 at 9.30am for mention with the Independent Children's Lawyer to notify the Second Respondent of the adjourned date.
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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