FAMILY COURT OF AUSTRALIA
| RAYMOND & HAROLD | [2009] FamCA 155 |
| FAMILY LAW – CHILDREN – Child and parenting orders – Best interests of the child – Sole parenting responsibility or equal shared parental responsibility – Time spent and communication orders – Schooling – Change of surname – Family violence – Orders of State Magistrates Court |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DA Evidence Act 1995 (Cth) s140 Crimes (Family Violence) Act 1987 (Vic) Family Violence Protection Act 2008 (Vic) |
| Re F: Litigants in Person Guidelines (2001) FLC 93-072 |
| APPLICANT: | MR RAYMOND |
| RESPONDENT: | MS HAROLD |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLF | 3001 | of | 2006 |
| DATE DELIVERED: | 4 MARCH 2009 |
| PLACE DELIVERED: | MELBOURNE |
| PLACE HEARD: | MELBOURNE |
| JUDGMENT OF: | YOUNG J |
| HEARING DATE: | 4, 5 & 6 FEBRUARY 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | IN PERSON |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | IN PERSON |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | MRS. HOOPER |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: | DONALD LAMPE |
TABLE OF CONTENTS
MR RAYMOND
REASONS FOR JUDGMENT
ISSUES
APPLICATIONS - ORDERS SOUGHT BY FATHER AND MOTHER
ORDERS SOUGHT - INDEPENDENT CHILDREN'S LAWYER
AFFIDAVITS
PREVIOUS ORDERS
BACKGROUND FACTS
LITIGANTS IN PERSON
OBSERVATION OF WITNESSES
STANDARD OF PROOF
FAMILY LAW ACT
SECTION 60CC CONSIDERATIONS
THE FATHER
FATHER’S AFFIDAVIT
THE MOTHER
MOTHER’S AFFIDAVIT
THE CHILD
FAMILY CONSULTANTS
STATE MAGISTRATES COURT – FAMILY VIOLENCE LEGISLATION
FAMILY INTERVENTION ORDERS
BEST INTERESTS OF THE CHILD - s60CC
TIME SPENT AND COMMUNICATION ORDERS
SCHOOLING
CHANGE OF SURNAME
COMMUNICATION BOOK
CHANGEOVER VENUE
CONCLUSION
ORDERS
THAT all previous child and parenting orders be discharged.
THAT the father and mother (“the parents”) have the equal shared parental responsibility for the child of their relationship S born … November 2002 (“the child”).
THAT the child live with the mother.
THAT the child spend time and communicate with the father as follows:-
a.on each alternate weekend from the conclusion of his school on a Friday until the commencement of school on Monday morning or, if that day is a gazetted public holiday or a day when school classes are not scheduled, then until the commencement of school on Tuesday morning.
b.in each other week:-
i)for…
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- Raymond & Harold [2009] FamCA 155
- Case
- [2009] FamCA 155
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the establishment of equal shared parental responsibility, the primary residence of the child, the specific schedule for the child's time with each parent, including weekends, weekdays, holidays, and birthdays, and provisions for communication between the child and the non-resident parent. The court also had to consider orders relating to the child's surname, education, medical care, parental communication, and the conduct of the parents regarding discussions about court proceedings and denigration of each other.
Young J ordered the discharge of all previous child and parenting orders. The parents were granted equal shared parental responsibility for the child, with the child to live with the mother. Detailed provisions were made for the child's time with the father, encompassing alternate weekends, specific weekday periods, Father's Day and Mother's Day arrangements, school holidays, Christmas and New Year periods, and the child's birthday. The court also mandated regular communication between the child and the non-resident parent, the use of a communication book or email for child-related matters, and specified changeover venues and times. Further orders addressed the child's surname, continued primary education at K Primary School, parental notification of address changes, and the exchange of medical and educational information. Both parents were restrained from discussing court proceedings with the child or denigrating the other parent in the child's presence. The appointment of the Independent Children’s Lawyer was discharged.
Orders
Orders of the court
1.
THAT all previous child and parenting orders be discharged.
2.
THAT the father and mother (“the parents”) have the equal shared parental responsibility for the child of their relationship S born … November 2002 (“the child”).
3.
THAT the child live with the mother.
4.
THAT the child spend time and communicate with the father as follows:-
a. on each alternate weekend from the conclusion of his school on a Friday until the commencement of school on Monday morning or, if that day is a gazetted public holiday or a day when school classes are not scheduled, then until the commencement of school on Tuesday morning.
b. in each other week:-
i) for first term 2009 from the commencement of school on Monday morning until the commencement of school on Tuesday morning; and
ii) from second term 2009 from the commencement of school Monday morning until the commencement of school on Wednesday morning.
c. on Father’s Day in each year, and if it should fall on the weekend when the child is not spending time with his father, then from 9.00 a.m. on that Sunday until the commencement of school the following morning.
d. in the event that Mother’s Day should fall on a weekend when the child is spending time with his father then he is to be returned to his mother at 9.00 a.m. on that Sunday and remain with her until the commencement of school the following morning.
e. for one half of each of the term school holiday periods commencing Term 1, 2009 at dates and times to be agreed upon in writing forty-two (42) days in advance between the parents or failing such written agreement as follows:-
i. in even numbered years for the first half of term school holidays to commence at the conclusion of classes on the last day of school and to conclude at 5.00 p.m. on the day which is the mid point of the total number of days of such holidays, and in each alternate year thereafter;
ii. in each odd numbered year, and alternate years thereafter, for the second half of school term holidays to commence at 5.00 p.m. on the mid point day of the total number of days of such holidays and to conclude at the commencement of school on the first school day of the following term.
f. in each calendar year from 9.00 a.m. Boxing Day, 26 December, until 9.00 a.m. 28 December (and with the mother to have in each calendar year the period 9.00 a.m. 24 December until 9.00 a.m. 26 December, inclusive).
g. in the 2009/2010 long summer holidays for a period of sixteen (16) days commencing 9.00 a.m. Monday 11 January and concluding 9.00 a.m. Wednesday 27 January (and, subject to paragraph (f) herewith the mother to have the balance of all other days of these long holidays).
h. from the 2010/2011, and thereafter unless varied by the prior written agreement of the parents, long summer holidays for a period of eighteen (18) days commencing on 9 January and concluding at 9.00 a.m. on 27 January inclusive.
i. on the child’s birthday, … November, he is to spend a period of two (2) hours between 4.00 p.m. and 6.00 p.m. with the parent with whom he is not residing with on that day.
j. when the birthday of either parent occurs on a day when the child is with the other parent, then for a period of two (2) hours at times to be arranged in writing or by e-mail between the parents or, if in default of agreement, between 4.00 p.m. and 6.00 p.m. on that day.
k. for such other times as the parents may be able to agree on.
5.
THAT the alternate weekend time spent with periods as provided for in paragraphs 4(a) and 4(b) hereof are to be suspended during all school holidays and are then to recommence immediately upon the resumption of school and in the continuing order of what alternate weekend timetable existed at the time of this suspension for holiday purposes.
6.
THAT the parents are to establish and support meaningful telephone communications between the child and the parent with whom he is then not spending time on each Saturday between 6.00 p.m. and 7.00 p.m., and twice weekly at that time period during all periods of school holidays.
7.
THAT the parents use a communication book or email for all discussion, notification and advice of medical, education and personal notes concerning the child and exchange that book regularly.
8.
THAT the changeover venue on all occasions during school terms are to occur at the child’s school and otherwise in school holidays at the McDonalds store at E and the parents are to be punctual and polite in their attendance at the times specified for changeover in these orders.
9.
THAT if either parent is unable to attend at changeover then they may nominate an adult, known to the child, to attend on their behalf to collect or return the child at the McDonald’s store.
10.
THAT the child is to retain the name and remain known under his registered birth name, S RAYMOND, and he is to be enrolled at school and at all other events by that name and the, mother her servants and agents, are restrained from any change of surname or substitution of any other given name for the child.
11.
THAT any new passport for the child issue in the name of S RAYMOND.
12.
THAT the child continue his primary education at K Primary School and both parents be and are hereby injuncted from removing the child from attendance at that school unless they are in full agreement or by Court order.
13.
THAT if either parent is to change their residential address and move to a location outside of the zone established for the K Primary School they are to give the other party no less than forty two (42) days prior written notice together with a full explanation for the reasons for such change of address and every effort is made to continue the child’s schooling at K Primary School.
14.
THAT the parents are to keep each other advised of any illness or injury sustained by the child whilst in their care and provide full particulars of any treatment received or required by him together with the name and contact details of any medical provider.
15.
THAT both parents are restrained from taking or permitting the child to be seen by any treating health professional, save for any medical emergency or routine illness without the prior written agreement of the other party or Court order.
16.
THAT the parents keep each other advised (punctually) of any change of residential address, telephone number or email address.
17.
THAT the father, at his expense, provide a mobile telephone and number to the child which he is able to use to contact both of his parents as he may choose so to do.
18.
THAT a sealed copy of this order be forthwith served by the solicitor for the father upon the Principal of K Primary School, or such other school the child may hereafter attend.
19.
THAT the K School, or such other school the child may hereafter attend, be requested to provide to both parents copies of all school reports, newsletters and other available information prepared for parents.
20.
THAT both parents be restrained from:-
a. discussing the Family court proceedings with the child; and
b. from denigrating the other parent or members of the other family in the presence or the hearing of the child.
21.
THAT the appointment of the Independent Children’s Lawyer be forthwith discharged.
22.
THAT all other orders sought by the father in his application for orders filed 5 December 2008 and likewise the further orders sought by the mother in her amended response filed 20 January 2009 be otherwise dismissed and all proceedings be removed from the list of cases awaiting hearing in the docket of the Honourable Justice Young.
23.
THAT pursuant to Sections 65DA(2) and 62B the particulars and 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 those 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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