FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAMSAY & WADE | [2016] FCCA 1658 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – best interests of the children – parental responsibility – equal shared parental responsibility – where parties agree that they should have equal shared parental responsibility for the children – two children aged 7 and 5 years – anger management course – whether father should attend an anger management course – time for anger management course passed – (religion omitted) Christmas Day – 7 January in each year is (religion omitted) Christmas Day – arrangements for children to spend time with the father on (religion omitted) Christmas Day – (religion omitted) Easter – arrangements for children to spend time with father on (religion omitted) Easter Sunday – Father’s Day – Mother’s Day – arrangements for Father’s Day and Mother’s Day – need to reduce conflict between parents at changeover – changeovers to be at school wherever possible – alcohol – consumption of alcohol – restriction on consumption of alcohol by father whilst children in his care – drugs – prohibited drugs – restriction on self administration of prohibited drugs whilst children in father’s care or for 24 hours beforehand – smoking – where children suffer from asthma – restriction on smoking near children – injunction for personal protection of mother or other members of maternal family – whether evidence sufficient to warrant injunction – physical chastisement of children – restraint on parties from using physical discipline on children. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B |
| Cases cited: Ramsay & Wade-Ramsay [2012] FMCAfam 1436 |
| Applicant: | MR RAMSAY |
| Respondent: | MS WADE |
| File Number: | SYC 5648 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 19-22 August, 2-3, 9 October 2014 |
| Date of Last Submission: | 9 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2016 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Reeve |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | Ms Murphy (direct brief) |
| Counsel for the Independent Children's Lawyer: | Mr Ladopoulos |
| Solicitors for the Independent Children's Lawyer: | John Spence & Associates |
ORDERS
All previous parenting Orders are discharged.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2010.
The children X and Y are to live with the Mother.
The children X and Y are to spend time with the Father as follows:
(a)during the school term, unless otherwise agreed between the Father and the Mother in writing, in a two week cycle commencing on the first Thursday immediately after the date of these Orders and recommencing on the first Thursday of each school term in 2016 and all years ending in an even number thereafter and on the second Thursday of each school term in 2017 and all years ending in…
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- Ramsay and Wade [2016] FCCA 1658
- Case
- [2016] FCCA 1658
- Decision Date
CaseChat Overview and Summary
The court was required to determine the terms of parenting orders, specifically addressing issues of parental responsibility, the children's living arrangements, and the time each parent would spend with the children. Further issues included provisions for communication between parents regarding the children's health and education, restrictions on certain behaviours of the parents, and arrangements for international travel.
The court ordered the discharge of all previous parenting orders. It established equal shared parental responsibility for the children, with the children to live with the Mother. The Father was granted specific time with the children, detailed across school terms, school holidays, and Christmas/January holiday periods, with a complex alternating schedule for even and odd-numbered years. Additional time was allocated for the children's birthdays and Father's Day, with specific provisions for the suspension of the Father's time on the children's birthdays and Mother's Day. The orders also included detailed provisions regarding communication, notification of health professionals, attendance at appointments, and the exchange of reports. Restrictions were placed on the Father concerning alcohol and drug consumption, and smoking, and on both parents regarding denigrating the other parent or their family. The Mother was permitted to obtain and retain the children's passports, with specific notice requirements for international travel.
Orders
Orders of the court
1.
All previous parenting Orders are discharged.
2.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2010.
3.
The children X and Y are to live with the Mother.
4.
The children X and Y are to spend time with the Father as follows:
(a) during the school term, unless otherwise agreed between the Father and the Mother in writing, in a two week cycle commencing on the first Thursday immediately after the date of these Orders and recommencing on the first Thursday of each school term in 2016 and all years ending in an even number thereafter and on the second Thursday of each school term in 2017 and all years ending in an odd number thereafter, as follows:
(i) in the first week of the two week cycle, from the conclusion of school on Thursday until the commencement of school on the following day; and
(ii) in the second week of the two week cycle, from the conclusion of school on Thursday until the commencement of school on the following Monday PROVIDED THAT if the Monday is a public holiday or a pupil free day then until the commencement of school on the Tuesday;
(b) During the New South Wales school holiday periods at the end of the first, second and third terms in each year unless otherwise agreed between the Father and Mother in writing , as follows:
(i) In 2016 and all years ending in an even number thereafter from immediately after school on the last day of the school term until 6:00pm on the second Saturday of the school holiday period; and
(ii) In 2017 and all years ending in an odd number thereafter from 6:00pm on the second Saturday of the school holiday period until the day that the children are required to attend school at the commencement of the new school term;
(c) During the Christmas/January school holiday periods, unless otherwise agreed between the parties in writing, as follows:
(i) From 9:00am until 6:00pm on 7 January in each year being (religion omitted) Christmas Day;
(ii) In the Christmas/January school holiday period at the end of the fourth school term in 2016, for two (2) periods of seven (7) consecutive nights commencing at 9:00 am on Saturday 7 January 2017 until 10:00am on the following Saturday AND at 10:00am on Saturday 21 January 2015 until 10:00am on the following Saturday;
(iii) In the Christmas/January school holiday period at the end of the fourth school term in 2017, for two (2) periods of nine (9) consecutive nights commencing at 10:00 am on Boxing Day Tuesday 26 December 2017 until 10:00am on Thursday 4 January 2018 AND at 10:00am on Saturday 13 January 2018 until 10:00am on Monday 22 January 2018;
(iv) In the Christmas/January school holiday period at the end of the fourth school term in 2018 and each alternate year thereafter being years ending in an even number from 6:00pm on Christmas Eve 24 December until 6:00pm on 10 January; and
(v) In the Christmas/January school holiday period at the end of the fourth school term in 2019 and each alternate year thereafter being years ending in an odd number from 6:00pm on 23 December until 6:00pm on Christmas Eve 24 December AND from 6:00pm on 10 January until 6:00pm on Australia Day 26 January in each odd numbered year.
5.
Unless otherwise agreed between the parties in writing, the children X and Y are to spend additional time with the Father as follows:
(a) On each of the children’s birthdays each year as follows:
(i) from immediately after school until 6:00pm if on a school day; or
(ii) from 10:00am until 2:00pm if not a school day;
(iii) on the weekend of Father’s Day from immediately after school on the Friday until the commencement of school on the Monday; and
(iv) on (religion omitted) Easter Sunday in each year from 9:00am until 5:00pm; and
(v) such other times if any as the parties shall agree in writing.
6.
Unless otherwise agreed between the parties in writing, the children’s time with the Father in accordance with Order (4) above is to be suspended on:
(a) each of the children’s birthdays in each year as follows:
(i) from 4:00pm until 7:00pm if on a school day; or
(ii) from 10:00am until 2:00pm if not on a school day,
unless the children:
(iii) have been in the Mother’s care earlier that day or the day before; or
(iv) will be in the Mother’s care later that day or the following day; and
(b) on the weekend of Mother’s Day from immediately after school on the Friday until the commencement of school on the Monday morning.
7.
For the purposes of these orders, all references to school terms and school holidays means New South Government school terms and school holidays respectively.
8.
For the purposes of facilitating the above Orders, unless otherwise agreed between the parties in writing, changeovers where the children go from the care of one parent to the care of the other parent in accordance with these Orders, will take place at the children’s school or schools if occurring at the start or end of a school day and otherwise will take place at the McDonald’s Family Restaurant at (omitted).
9.
The Father and the Mother must:
(a) provide each other with and keep each other informed of the names and addresses of the children’s treating doctors and any dentist, optometrist, psychologist, psychiatrist, counsellor, therapist or other health professional who may treat the children;
(b) inform each other in writing as soon as practicable of any appointment with any health professional in relation to either or both of the children; and
(c) ensure that the other parent is provided with a copy of any report by any treating doctor or any other health professional in relation to either or both of the children within seven (7) days of having received that report.
10.
Both the Father and the Mother will be entitled to:
(a) attend any appointments with any treating doctor or other health professional relating to either or both of the children; and
(b) discuss the child or children’s condition with the treating doctor or other health professional
PROVIDED THAT the attendances are to be at the discretion of the treating doctor or health professional.
11.
The Mother must ensure that the Father is notified as soon as practicable if, while in her care:
(a) either of the children is admitted to hospital;
(b) either of the children is involved in a medical emergency; or
(c) either of the children will be required to take medication when he or she spends time with the Father, in which case the Mother is to advise the Father of the details of the medication required to be taken and provide the Father with sufficient medication to cover the first 72 hours of the children’s time with him.
12.
The Father must ensure that the Mother is notified as soon as practicable if, while in his care:
(a) either of the children is admitted to hospital;
(b) either of the children is involved in a medical emergency; or
(c) either of the children will be required to take medication when he or she returns to the care of the Mother, in which the Father is to advise the Mother of the details of the medication required to be taken and provide the Mother with sufficient medication to cover the first 72 hours after the children return to her care.
13.
By this Order, any school which the children are attending from time to time is authorised to provide both the Father and the Mother with a copy of all reports, circulars, notices and documents in relation to either of the children including copies of all school reports, reports on school progress and behavioural issues, information about school photographs, newsletters and notices received in relation to functions, parent teacher nights and similar activities to which parents of children attending the school are normally invited as well as any information which may be sought from time to time by the Father or Mother in relation to either or both of the children.
14.
Both the Father and the Mother are permitted to attend:
(a) any school event relating to either of the children to which parents are ordinarily invited; and
(b) any of the children’s extracurricular activities to which parents are ordinarily invited.
15.
The Father and the Mother must notify each other in writing of any change to their telephone contact numbers within three (3) days of any change occurring.
16.
The Father and the Mother must notify each other in writing of any proposed change to their place of residence no less than fourteen (14) days prior to the proposed change.
17.
For the purposes of communicating information about the care of the children or issues relating to parental responsibility between the parties, the Father and Mother are to:
(a) communicate by telephone or text message for matters of an urgent nature; and
(b) otherwise communicate by writing or email.
18.
The Mother must take all reasonable steps to ensure that her brother Mr N is not present at changeovers.
19.
For a period of six (6) months from the date of these Orders, the Father must take all reasonable steps to ensure that the children or either of them are not left in the presence of Ms V unless he or one of the following adults is present:
(a) the paternal grandmother, Ms M;
(b) the paternal grandfather, Mr T; or
(c) the paternal aunt, Ms N.
20.
The Father and Mother:
(a) must ensure that the children attend:
(i) any regular medical or health appointments; and
(ii) any regular extracurricular activities which have already been arranged or in which they have already been enrolled as at the date of these Orders; but
(b) are restrained from:
(i) re-enrolling either of the children in such activities; or
(ii) enrolling either of the children in any further extracurricular activities
if those activities would involve the children being required to attend at a time when they are in the care of the other parent unless the other parent has agreed in writing to the children participating in those activities.
21.
The Father and the Mother are restrained from discussing with either of the children or permitting any third person to discuss:
(a) the alleged incident between X and his cousin on 2 July 2012;
(b) these proceedings; or
(c) the Reasons for this Decision.
22.
The Father is restrained from:
(a) consuming alcohol at any time when the children are in his care, or for twelve (12) hours beforehand; and
(b) administering to himself any prohibited drug, at any time when the children are in his care or for twenty-four (24) hours beforehand.
23.
The Father is restrained from smoking tobacco in the presence or the near vicinity of the children or either of them at any time when they are in his care.
24.
The Father and the Mother are restrained from speaking to or about the other parent or a member of the other parent’s immediate family in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the children or either of them or permitting any third person to do so.
25.
Neither party is to use any form of physical discipline or physical chastisement on either of the children or permit any third person to do so.
26.
Where possible and except in cases of emergency, the parties are to ensure that the children should receive medical treatment from their usual doctor, Dr E, when they require medical attention.
27.
The Mother is permitted to obtain Australian passports for each of the children and the father is to do all things necessary to complete any passport application within fourteen (14) days of receipt.
28.
The mother is permitted to retain possession of the children’s passports when issued.
29.
In the event that either party wishes to travel internationally with the children or either of them:
(a) The party wishing to travel with the children must give the other party no less than sixty (60) days’ notice of his or her intention to travel internationally with the children or either of them;
(b) The party wishing to travel with the child or children must provide to the other party no less than four (4) weeks prior to the date of intended travel copies of all flight information, itineraries, accommodation information, addresses and contact details of where and with whom the child or children will stay whilst out of Australia; and
(c) The other party must give written notice to the party wishing to travel with the child or children no later than two (2) weeks prior to the date of intended travel whether or not he or she consents to the child or children travelling internationally.
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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