FEDERAL CIRCUIT COURT OF AUSTRALIA
| PENNINGTON & REDDEN (No.2) | [2018] FCCA 2867 |
| Catchwords: FAMILY LAW – Final proceedings for parenting arrangements of children aged 16 & 13 – high conflict – undefended proceedings – numerous contravention applications – wishes of children – best interests – meaningful relationship – protection from emotional harm – costs – matters to be considered. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Taylor v Taylor (1979) 143 CLR 1 |
| Applicant: | MR PENNINGTON |
| Respondent: | MS REDDEN |
| File Number: | ADC 1511 of 2011 |
| Judgment of: | Judge Brown |
| Hearing date: | 22 June 2018 |
| Date of Last Submission: | 7 July 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 5 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondent: | Ms Dickson |
| Solicitors for the Respondent: | Barnes Brinsley Shaw Lawyers |
ORDERS
The mother have the sole parental responsibility for the children [X] born 2002, [Y] born 2005 and [Z] born 2005.
The children live with the mother.
The children spend time with the father during the school term as follows:
(a)From the conclusion of sport on Sunday (or 3:00pm), whichever is the earliest, until the commencement of school on Monday, (with such time to extend to the commencement of school on Tuesday if the Monday is a public holiday);
(b)That paragraph 3(a) of the orders be subject to the child [X]’s wishes.
The children spend time with the father during the short school holiday periods as follows:
(a)As to [Z] and [Y] until they attain the age of 15 years:
(i)In 2018 and each alternate year thereafter, from the conclusion of school on the last day of the school term until 12noon on the second Saturday of the school holiday period; and
(ii)In 2019 and each alternate year thereafter, from 12noon on the second Saturday of the school holiday period until the commencement of school on the first day of the following term.
(b)As to [X] and as to [Y] and [Z] once they attain the age of 15 years:
(i)In 2018 and each alternate year thereafter from the conclusion of school on the last day of the school term for a period of four nights (with any such extension to be subject to the child’s wishes) with handover to occur at 5:00pm on the fifth day or such day as may be subject to the children’s wishes; and
(ii)In 2019 and each alternate year thereafter for four nights prior to the commencement of the school term, commencing at 5:00pm until the commencement of the school term (with any such…
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- Pennington and Redden (No.2) [2018] FCCA 2867
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- [2018] FCCA 2867
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CaseChat Overview and Summary
The court was required to determine the children's best interests, specifically addressing the weight to be given to their expressed wishes, the importance of maintaining a meaningful relationship with both parents, and the need to protect the children from emotional harm. Further issues included the allocation of parental responsibility, the specific terms of time spent between the children and each parent during school terms, holidays, and special occasions, and the appropriate communication protocols between the parents. The court also had to consider applications for costs.
Judge Brown applied the principles of the *Family Law Act 1975* (Cth), focusing on the paramountcy of the children's best interests. The court considered the history of conflict and contravention applications, noting the impact on the children. The orders reflect a determination to provide stability and structure, with significant emphasis on the children's wishes, particularly for the eldest child, in relation to time spent with the father. The court also made detailed orders regarding communication, parental conduct, and the exchange of children's belongings, including injunctions to prevent denigration and to manage the father's presence at school and extracurricular activities.
The court ordered that the mother have sole parental responsibility and that the children live with her. Specific time arrangements were detailed for the father, with provisions for school terms, short holidays, and long holidays, all subject to the children's wishes in certain respects. The orders also included arrangements for special occasions, communication protocols, and injunctions restraining specific behaviours. Finally, the court dismissed all extant applications and ordered the father to pay costs to the mother and to a psychology and mediators service.
Orders
Orders of the court
1.
The mother have the sole parental responsibility for the children [X] born 2002, [Y] born 2005 and [Z] born 2005.
2.
The children live with the mother.
3.
The children spend time with the father during the school term as follows:
(a) From the conclusion of sport on Sunday (or 3:00pm), whichever is the earliest, until the commencement of school on Monday, (with such time to extend to the commencement of school on Tuesday if the Monday is a public holiday);
(b) That paragraph 3(a) of the orders be subject to the child [X]’s wishes.
4.
The children spend time with the father during the short school holiday periods as follows:
(a) As to [Z] and [Y] until they attain the age of 15 years:
(i) In 2018 and each alternate year thereafter, from the conclusion of school on the last day of the school term until 12noon on the second Saturday of the school holiday period; and
(ii) In 2019 and each alternate year thereafter, from 12noon on the second Saturday of the school holiday period until the commencement of school on the first day of the following term.
(b) As to [X] and as to [Y] and [Z] once they attain the age of 15 years:
(i) In 2018 and each alternate year thereafter from the conclusion of school on the last day of the school term for a period of four nights (with any such extension to be subject to the child’s wishes) with handover to occur at 5:00pm on the fifth day or such day as may be subject to the children’s wishes; and
(ii) In 2019 and each alternate year thereafter for four nights prior to the commencement of the school term, commencing at 5:00pm until the commencement of the school term (with any such extension to be subject to the child’s wishes).
5.
The father spend time with the children during the December/January school holiday periods as follows:
(a) As to [Z] and [Y], until they attain the age of 15 years, on a week about basis as follows:
(i) In 2018 and each alternate year thereafter, from the conclusion of school until 5:00pm on the second Saturday of the school holiday period and each alternate week thereafter;
(ii) In 2019 and each alternate year thereafter, from 5:00pm on the second Saturday until 5:00pm on the third Saturday and each alternate week thereafter.
(b) As to [X] and as and from [Z] and [Y] attaining the age of 15 years:
(i) In 2018 and each alternate year thereafter, for four consecutive nights each fortnight from the conclusion of school until 5:00pm on the fifth day and each alternate fortnight thereafter; and
(ii) In 2019 and each alternate year thereafter, for four consecutive nights each fortnight from 5:00pm on the second Saturday until 5:00pm on Wednesday and each alternate fortnight thereafter.
6.
That the parties shall spend time with the children on special occasions as agreed or failing agreement as follows with such orders to override any other within orders:
(a) For Christmas:
(i) In 2018 and each alternate year thereafter, the mother shall spend time with the children from 4:00pm on 24 December until 12noon on 25 December and the father shall spend time with the children from 12noon on 25 December until 4:00pm on 26 December; and
(ii) In 2019 and each alternate year thereafter, the father shall spend time with the children from 4:00pm on 24 December until 12noon on 25 December and the mother shall spend time with the children from 12 noon on 25 December until 4:00pm on 26 December: and
(b) For Easter:
(i) The mother will spend time with the children for each (religion) Easter from 9:00am on the Friday until 4:00pm on the Monday;
PROVIDED THAT in the event (religion) Easter falls on a weekend during which the children would otherwise be in the father’s care, then by way of make-up time, the father shall spend time with the children during the weekend following (religion) Easter from the conclusion of school on Friday until the commencement of school on Monday;
(ii) The father will spend time with the children for each Western Easter from 9:00am on the Friday until 4:00pm on the Sunday;
PROVIDED THAT in the event Western Easter falls on a weekend during which the children would otherwise be in the mother’s care, then by way of make-up time, the mother shall spend time with the children during the weekend following Western Easter from the conclusion of school on Friday until the commencement of school on Monday
SAVE AND EXCEPT where such period coincides wherein the following will apply:
(iii) The mother will spend time with the children from 4:00pm on the Thursday until 4:00pm on the Saturday; and
(iv) The father will spend time with the children from 4:00pm on the Saturday until 4:00pm on the Monday;
(v) There shall be no make-up time for either party.
(c) For the children’s birthdays the party who does not have the care of the children, will instead spend time with them as follows:
(i) When such day is not a school day for a period of four hours from 12noon until 4:00pm;
(ii) When such day is a school day from the conclusion of school until 6:00pm.
(d) For the parties’ birthdays:
(i) For the mother’s birthday when the children are not spending time with the mother as set out herein, the mother shall spend time with the children as agreed between the parties or failing agreement from 9:00am until 7:00pm if a non-school day and from the conclusion of school until 7:00pm if a school day;
(ii) For the father’s birthday when the children are not spending time with the father as set out herein, the father shall spend time with the children as agreed between the parties or failing agreement from 9:00am until 7:00pm if a non-school day and from the conclusion of school until 7:00pm if a school day.
(e) For Mother’s and Father’s Day:
(i) The mother shall spend time with the children from 9:00am until 7:00pm on Mother’s Day, in the event she is otherwise no spending such time; and
(ii) The father shall spend time with the children from 9:00am until 7:00pm on Father’s Day in the event he is otherwise not spending such time.
7.
The parties shall facilitate the children contacting the other parent when the children are in their care, as and when the children may request the same and with such contact at first instance to be via landline telephone and if not available then mobile telephone.
8.
The parties shall complete and exchange by e-communication, such communication to contain all relevant information in respect of ay issue pertaining to the care, welfare, development, health and education of the said children that should reasonably be brought to the other’ attention (with each party to ensure that they maintain a current and working email address and provide the same to the other party).
9.
The parties shall otherwise communicate by way of email or SMS with each other SAVE AND EXCEPT in the event of an emergency.
10.
Each party shall:
(a) Forthwith inform the other of any serious accident, or illness of the said children and in the event of hospitalization, each parent shall be entitled to attend at the hospital in order to spend time with the child or children;
(b) Forthwith inform the other of the name, address and contact details of any relevant treating medical professional and each parent is hereby authorized to consult with the medical practitioner in respect of the treatment of the child or children;
(c) Authorise the children’s school to release to the other parent copies of all school newsletters, school reports, school photographs and the like.
11.
Each party do ensure that the children complete all specified homework whilst they are in their care.
12.
Each party be restrained and an injunction granted restraining each party from:
(a) Denigrating the other to the children of in the presence of the children or allowing any other person to do so;
(b) Discussing the proceedings with the children or permitting other persons to do so.
13.
Each party shall facilitate the movement of the said children’s books, toys and belongings between each home SAVE AND EXCEPT for any such items not permitted by the said children’s school to be on school grounds.
14.
The father be restrained and an injunction granted restraining the father from attending inside the grounds of the school attended by any of the children including but not limited to School 1 Primary School and School 2 High School.
15.
The father be restrained and an injunction granted restraining him from attending at any extracurricular activities attended by the children including but not limited to school sport and club sport SAVE AND EXCEPT that the father be permitted to deliver the child [Z] to the (sports) at the commencement of each (sports) game and to return to collect the said child at the conclusion thereof PROVIDED THAT the father shall vacate the (sports) after such delivery and he shall not remain at the (sports) for the duration of the game.
16.
The father be restrained and an injunction granted restraining the father from denigrating the mother’s late partner Mr A to the children or in the presence of the children or allowing any other person to do so.
17.
As to communication:
(a) The father facilitate the children speaking to the mother on [X]’s mobile telephone at 8:00am each morning when the children are in the father’s care;
(b) The father facilitate the children speaking with the mother on [X]’s mobile telephone at 7:00pm when the children are in the father’s care.
18.
In respect of any handovers that are scheduled to occur at school:
(a) The father shall deliver and collect the children from the front gate of the school and outside of the school grounds;
(b) The father shall ensure that he does not exit his motor vehicle while delivering the children to school or whilst waiting to collect the children after school.
19.
The father shall ensure that the children attend all extracurricular activities, schooling activities and social events (including birthday parties) as nominated by the mother during the time that the children spend with the father UPON NOTING THAT the mother will not respond to any invitation to any party that occurs in the father’s time.
20.
In respect of the delivery of the children to their extracurricular activities referred to in paragraph 19 herein or the collection of the children from activities referred to in paragraph 19 herein:
(a) The father shall deliver or collect the children from the front gate of the school or venue to be attended by the children;
(b) The father shall ensure that he does not exit his motor vehicle whilst delivering the children to the school or the said venue and while collecting the children from the school of the said venue SAVE AND EXCEPT that the father be permitted to deliver the child [Z] to the (sports) at the commencement of each (sports) game and to return to collect the said child at the conclusion thereof PROVIDED THAT the father shall vacate the (sports) after such delivery and he shall not remain at the (sports) for the duration of the game.
21.
Any handovers not scheduled to occur at school do occur at the parties’ respective residences ON CONDITION THAT they do not enter the residential property of the other SAVE AND EXCEPT in the event that they are delivering the children’s bags/sports equipment in the absence of the children.
22.
Within 28 days, each party is to make payment to Psychology and Mediators the sum of $1,416.00.
23.
Within 28 days the father is to pay to the mother on account of costs:
(a) The sum of $2554.00 on account of the outstanding costs order made on 6 April 2016;
(b) The sum of $5,000.00 on account of the mother’s costs of and incidental to the contravention applications filed 2 June 2016, 25 July 2016 and 6 October 2018;
(c) The sum of $5,000.00 in respect of the current proceedings.
24.
All extant applications be dismissed.
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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