PROUDFOOT & PROUDFOOT

[2010] FamCA 594

FAMILY COURT OF AUSTRALIA

PROUDFOOT & PROUDFOOT [2010] FamCA 594

FAMILY LAW – CHILDREN – CONSENT ORDERS – Best interests of the child – Reasonable practicability in spend time with arrangements

Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(3), 65DAA(1), 65DAA(2), 65DAA(5)

APPLICANT: Mr Proudfoot

RESPONDENT: Ms Proudfoot

FILE NUMBER: CAC 598 of 2010

DATE DELIVERED: 8 June 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks ACJ

HEARING DATE: 8 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms K. Fox

SOLICITOR FOR THE APPLICANT: Farrell Lusher Solicitors

COUNSEL FOR THE RESPONDENT: Ms L. Keogh

SOLICITOR FOR THE RESPONDENT: Friedlieb Byrne

Orders

IT IS ORDERED THAT:

1. The mother and father of the children H, born on … March 2001, M, born on … January 2003, and C, born on … July 2006, have equal shared parental responsibility for the children.

2. The children live with each of their parents during school terms as follows:

   a.In week one:

   i.with their father from after school on Monday until before school on Wednesday; and

   ii.with their mother from after school on Wednesday until before school on Monday.

   b.In week two:

   i.with their father from after school on Monday until before school on Wednesday;

   ii.with their mother from after school on Wednesday until before school on Friday; and

   iii.with their father from after school on Friday until before school on Monday AND IT IS NOTED THAT this will mean that the children remain with their father until before school on the Wednesday morning of week one, in accordance with sub-paragraph 2ai above.

3. Other than provided for in Order 2 above, the children are to spend time with their parents as follows:

   a.For half of all school holidays with each of the parents in accordance with the arrangements set out in 2a and b above during school term holidays and at Christmas time for the first half of the holidays with the father in 2010 and each alternate year thereafter and the first half of the holidays with the mother in 2011 and each alternate year thereafter;

   b.For not less than four hours on each of the children’s birthdays at times to be agreed and in absence of agreement from 10am to 2pm or alternatively from after school until 7pm if a school day, with the parent with whom the children are not otherwise living on their birthday;

   c.With the mother from 12 noon on 24 December 2010 until 2pm on 25 December 2010 and each alternate year thereafter;

   d.With the father from 12 noon on 24 December 2011 until 2pm on 25 December 2011 and each alternate year thereafter;

   e.For not less than four hours on Easter Sunday as agreed and in absence of agreement from 10am to 2pm with the parent with whom the children are not otherwise living at that time;

   f.Telephone time with the children between 7pm and 7:30pm on any night when the children are not otherwise with that parent;

   g.At such other times as agreed.

4. For the purposes of time pursuant to orders 2 and 3 above, changeover is to occur at school or approved carer as the case may be, and if this is not possible, the father is to collect the children from the mother’s residence at the commencement of time and the mother is to collect the children from the father’s residence at the commencement of her time.

5. Each parent shall authorise any day care or school that the child shall attend to advise the other parent of any information they require, copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights, and inform the other parent of any emergency, remedial or correctional treatment requirement by the child as soon as is practicable.

6. Each parent shall authorise any treating medical practitioner, dental practitioner, hospital or medical practice that the child shall attend from time to time to provide to the other parent any information regarding the child.

7. If any of the children fall ill such that one of the parents takes any of the children to the doctor, that parent shall notify the other parent of the doctor’s contact details, any medication prescribed and any treatment recommended.  Each parent shall administer such medication when it falls due, adhere to any medical treatment plan and follow any directions from the doctor for the child.  Each parent is then restrained from seeking alternate medical treatment unless the child’s condition appears to deteriorate.

8. In the event that the children suffer any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent then the parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the child/children have been taken.

9. Each parent shall advise the other parent of any change of any landline or mobile telephone numbers within twenty four hours of that change.

10. Each parent shall notify the other parent of any change of address within seven days.

11. Neither parent, their agents and servants shall denigrate the other parent to the child, in front of the child or within the child’s hearing.

12. The parties attend the Building Connections workshop run by Centacare.

13. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

14. The matter be removed from the Pending Cases Inventory.

IT IS NOTED that publication of this judgment under the pseudonym Proudfoot & Proudfoot is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:   CAC 598 of 2010

MR PROUDFOOT

Applicant

and

MS PROUDFOOT

Respondent

REASONS FOR JUDGMENT

1. In this matter, I propose to make orders by consent. However, part 1 of the orders the parties agreed to is an order that they have equal shared parental responsibility. Under the terms of s 65DAA(1) of the Family Law Act1975 (Cth), if I am to make such an order, I have to consider whether it would be appropriate in the circumstances for an order to be made either for the children to spend equal time with their parents, or substantial and significant time with their parents.[1]

   [1] Family Law Act 1975 (Cth) s 65DAA(2).

2. In this case, I propose to make an order that the children spend what would amount to substantial and significant time with each of the parents.  In those circumstances, I am obliged to make appropriate determinations, in accordance with s 65DAA.  I need to determine, as that is the case, first, that it would be in the children’s best interests that I should make such orders.[2]  I am satisfied that it would be in the children’s best interests, in the light of the material that I have received from the parents today.  I have taken into account, in coming to that conclusion, the primary considerations[3] and the additional considerations[4] in determining what is in the best interests of the children.

   [2] The best interests of the child being the paramount consideration in making any parenting order: Family Law Act 1975 (Cth) s 60CA; Family Law Act 1975 (Cth) s 65DAA(2)(a).

   [3] Family Law Act 1975 (Cth) s 60CC(2).

   [4] Family Law Act 1975 (Cth) s 60CC(3).

3. In particular, I accept that each of the parents seeks and will make work the fact that the children should have a meaningful relationship with the other parent, and I am satisfied that the arrangements that they are proposing are within the terms of s 60CC, in the best interests of the children.  Equally, given the information I have received in the parenting questionnaires from the parents and from their evidence before the Court, the orders that are proposed to be made are reasonably practicable,[5] within the definition of that term under the s 65DAA(5) of the Family Law Act 1975 (Cth).

   [5] Family Law Act 1975 (Cth) s 65DAA(2)(b).

4. Accordingly, I am prepared to make orders, which would mean that the children spend substantial and significant time with each of the parents.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Acting Chief Justice Faulks. 

Legal Associate: 

Date:  14 July 2010