FAMILY COURT OF AUSTRALIA
PRESTON & PRESTON [2011] FamCA 618
FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Whether the mother can take the children to live in New Zealand – Where the father does not agree – Where the father seeks that the children spend equal time with the mother and father – The best interests of the children is the paramount consideration – The determination of parenting orders must be done with obvious regard for the Objects and underlying Principles set out at the commencement of part VII of the Family law Act 1975 (Cth) – Order that the mother and father have equal shared parental responsibility – Order that the children live with the father in the event the mother resides permanently in New Zealand or otherwise out of Australia.
Family Law Act 1975 (Cth) Part VII, s 60CA, s 65AA, s 60CC, s 60B, s 68F(2), s 65DAA, s 61DA, s 65DAC, s 4
Cowley & Mendoza [2010] FamCA 597
MRR v GR (2010) 263 ALR 368
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Goode v Goode (2006) FLC 93-286
Marsden and Winch (No. 3) [2007] FamCA 1364
Taylor v Barker (2007) FLC 93-345
U v U (2002) 211 CLR 238
APPLICANT: Ms Preston
RESPONDENT: Mr Preston
FILE NUMBER: BRC 1308 of 2009
DATE DELIVERED: 4 August 2011
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Forrest J
HEARING DATE: 6 and 7 April 2011 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Selfridge
SOLICITOR FOR THE APPLICANT: Anthony Black Family Law Services
COUNSEL FOR THE RESPONDENT:
SOLICITOR FOR THE RESPONDENT: Orders
Parental Responsibility
(1)The mother and the father have equal shared parental responsibility for the children J born … July 1999 and B born … September 2004 (“the children”) in respect of all “major long-term issues” as defined in the Family Law Act 1975 (as amended).
(2)The parents shall each have, during all such time that the children are in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.
Co-parenting Arrangements
(3)The children shall live with, spend time with and/or communicate with, each of their parents in such manner and for such periods of time as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these orders.
(4)In the event that the mother shall reside permanently in New Zealand or otherwise out of Australia:
(a) The children shall live with the father;
(b)The mother and father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the children to communicate by telephone, ordinary mail, email and Skype (or other such similar forms of communication) with each of the parents at all such reasonable times as the children request and in any event not less than once every two days;
(c)The children shall spend time with the…
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- Preston v Preston [2011] FamCA 618
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- [2011] FamCA 618
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CaseChat Overview and Summary
The court was required to determine the nature of parental responsibility for the children, specifically in relation to "major long-term issues" and other day-to-day matters. Furthermore, the court had to establish detailed co-parenting arrangements, including where the children would live, how they would spend time with each parent, and provisions for communication between the children and the non-resident parent, particularly in the event of the mother residing overseas. The court also addressed arrangements for special occasions, the exchange of information regarding the children's education and health, and the attendance of both parents at school and extracurricular activities.
Forrest J made orders establishing equal shared parental responsibility for major long-term issues, with each parent having responsibility for day-to-day matters when the children were in their care. The court then set out specific co-parenting schedules, differentiating between the mother residing in Australia and the mother residing overseas. These orders detailed the periods the children would live with each parent during school terms and holidays, including alternating arrangements for school holidays and specific commencement dates for term-time arrangements. Comprehensive provisions were made for communication between the children and the parent with whom they were not residing, with minimum contact frequencies stipulated. The orders also included provisions for transitions between households, special occasions such as birthdays and Father's/Mother's Day, and the exchange of information concerning the children's schooling and health.
In addition to the parenting arrangements, the court ordered both parents to attend a post-separation parenting program within six months and for the mother to attend psychological therapy, with the father to share equally in the net cost. All outstanding parenting applications were dismissed. The court also included a Fact Sheet detailing the obligations created by the orders, the consequences of contravention, and sources of assistance for compliance.
Orders
Orders of the court
Parental Responsibility
(1) The mother and the father have equal shared parental responsibility for the children J born … July 1999 and B born … September 2004 (“the children”) in respect of all “major long-term issues” as defined in the Family Law Act 1975 (as amended).
(2) The parents shall each have, during all such time that the children are in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.
Co-parenting Arrangements
(3) The children shall live with, spend time with and/or communicate with, each of their parents in such manner and for such periods of time as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these orders.
(4) In the event that the mother shall reside permanently in New Zealand or otherwise out of Australia:
(a) The children shall live with the father;
(b) The mother and father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the children to communicate by telephone, ordinary mail, email and Skype (or other such similar forms of communication) with each of the parents at all such reasonable times as the children request and in any event not less than once every two days;
(c) The children shall spend time with the mother:
(i) In either New Zealand or Australia at the mother’s election for the whole of the June/July and September/October Australian school holiday periods, for one half of the end of term one school holiday period and for one half of the December/January school holiday period each year with the mother being responsible for the cost of the children’s flights and/or her own flights and also the cost of the flights of any accompanying adult as might be desired or required by airline policy;
(ii) In Australia upon the giving of not less than 21 days notice in writing in accordance with the succeeding provisions of these orders as if, during such visit by the mother, she was residing in Australia.
(5) In the event that the mother resides in Australia:
(a) The children shall live with the father during school term from after school Friday until the start of school the following Wednesday, each alternate week and they shall live with their mother during school term at all other times;
(b) The children shall live with their father during half of all school holidays and they shall live with their mother during the other half of all school holidays;
(c) The half of the school holidays that the children shall live with the father shall be the first half of all remaining 2011 school holiday periods and for the second half of all 2012 school holiday periods, alternating as such from year to year thereafter;
(d) The periods that the children shall live with the father during school term shall commence for the remainder of 2011 on the first Friday after the commencement of school each term and in 2012 on the second Friday after the commencement of school each term, alternating as such from year to year thereafter;
(e) The mother and the father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the children to communicate with the parent with whom they are not living by telephone, ordinary mail, email and Skype (or other such similar forms of communication) at all such reasonable times as the children might request and:
(i) With the father, not less than three times during each of the periods that they live with the mother during school term and not less than two times each week during each of the periods that they live with the mother during school holidays;
(ii) With the mother, not less than two times during each of the periods that they live with the father during school terms and not less than two times each week during each of the periods that they live with the father during school holidays.
(6) Transitions of the children between the households of the mother and the father shall take place as agreed in writing between the parties and, failing further or other agreement:
(a) During school term by way of the father collecting the children from school or after school hours care at the commencement of the period during which they are to live with him and returning them to school or before school hours care at the conclusion of that period during which they are to live with him and by the mother collecting the children from school or after school hours care at the commencement of the period during which they are to live with her and delivering the children to school or before school hours care at the conclusion of the period during which they are to live with her;
(b) During school holidays the children shall be collected from school or after school hours care at the end of school term by the parent with whom they are living during the first half of the holidays and then delivered to the home of the other parent at the end of the first half of the holidays and they shall be delivered to school or before school hours care on the first day of term at the end of the school holidays by the parent with whom they are living during the second half of those holidays.
(7) Notwithstanding the previous orders, the children shall spend time with the parent with whom they are not living on special occasions as follows:
(a) On the birthday of each child:
(i) If a school day, from after school until 6.00 pm;
(ii) If a non-school day, from 1.00 pm until 6.00 pm;
(iii) With that parent to be responsible to collect and return the children from and to the other parent;
(b) With the father on Father’s Day from 9.00 am until 5.00 pm if they are not otherwise with him pursuant to these orders with the father to be responsible for collecting and returning the children from and to the mother;
(c) With the mother on Mother’s Day from 9.00 am until 5.00 pm if they are not otherwise with her pursuant to these orders with the mother to be responsible for collecting and returning the children from and to the father.
(8) The mother and father do all such things and sign all such documents as are necessary so as to authorise the schools attended by the children to give each parent information about the children’s educational progress and any other related activities and supply them with copies of reports, photographs, certificate and awards obtained by the children (at each parent’s own costs) and failing provision of such authority this order shall of itself operate as such authority in each case.
(9) The mother and the father shall:
(a) Keep the other parent informed at all times of their residential address, email address and landline telephone contact number;
(b) Keep the other parent informed of the names and addresses of any and all treating, medical and other allied health practitioners who may be treating the children and authorise those practitioners to provide the other parent with all such information in their possession relevant to the child or children and failing the provision of any such authority by either parent, this order of itself shall operate as such an authority;
(c) Inform the other parent as soon as practicable of any medical condition, significant health issue or significant illness suffered by either of the children.
(10) The mother and the father shall be at liberty to attend any and all school based and extracurricular activities undertaken by the children or either of them that parents are welcome to attend and each party shall do all things and sign all documents reasonably necessary to ensure that the attendance of each parent is authorised.
(11) The mother is at liberty to take the children to New Zealand during any of the time that they live with her pursuant to these orders.
Counselling and similar provisions
(12) The mother and the father shall each separately attend and complete a post separation parenting orders program conducted by a s 65LB provider of such programs.
(13) Each the mother and the father shall be personally responsible to access details of such programs through a family relationship centre in their residential proximity and for making contact with a provider of such programs and enrolling in and completing such a program at their own expense, if any.
(14) Each the mother and the father shall complete such a post parenting orders program within six (6) months of the date of these orders and each shall provide evidence in writing at the completion of such a program to the other party.
(15) The mother shall attend upon a therapist of her choice and obtain such psychological therapy as the mother and her therapist of choice consider appropriate consequent upon the making of these orders.
(16) The father and the mother shall share equally in the net cost to the mother, after any Medicare and private health insurance rebates, of all such psychological therapy undertaken by the wife pursuant to the previous order with the father to pay the wife his share of such cost within fourteen (14) days of receipt of her written request for same, which written request will include copies of necessary invoices and details of any Medicare and/or private health insurance rebates received by the wife in respect thereof.
Dismissal of other parenting applications
(17) All outstanding applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.
Other orders
(18) All subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
(19) 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.
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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