FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REYNOLDS & REYNOLDS | [2011] FMCAfam 105 |
| FAMILY LAW – Children aged 5 and 3 – final arrangements for care – mother and children live in [B], South Australia – father lives in [A], Western Australia – parties’ parenting relationship poor and mistrustful – father’s relationship with children disrupted following parties’ separation in 2009 – father seeks to spend time with children at his home in Western Australia – protective concerns – sleepwalking – meaningful relationship – overseas travel – costs. |
| Family Law Act 1975, ss.4; 11C; 11E; 60CA; 60CC; 61DA; 65DAA; 65DAC; 65DAE; 117 |
| MRR v GR [2010] HCA 4 Kuebler & Kuebler (1978) FLC 90-434 Line & Line (1997) FLC 92-729 Sahin & Sahin [2008] FMCAfam 1031 Bright v Bright (1995) FLC 92-570 |
| Applicant: | MS REYNOLDS |
| Respondent: | MR REYNOLDS |
| File Number: | ADC 4378 of 2009 |
| Judgment of: | Brown FM |
| Hearing dates: | 26 October 2010 & 20 January 2011 |
| Date of Last Submission: | 20 January 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 24 February 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dickson |
| Solicitors for the Applicant: | Lynch Meyer |
| Counsel for the Respondent: | In Person |
ORDERS
The parties have equal shared parental responsibility for the children [X] born [in] 2005 and [Y] born [in] 2007 (hereinafter referred to as “the children”).
In the exercise of their equal shared parental responsibility for the children the parties are to consult with each other in respect of all major long term decisions pertaining to the children, which include but are not limited to issues about:
(a)The children’s education (both current and future);
(b)The children’s religious and cultural upbringing;
(c)The children’s health (including psychological health);
(d)The children’s names; and
(e)Any changes to the children’s living arrangements which significantly interferes with the operation of these orders, particularly with the arrangements for the children to spend time with each parent.
In the event the parties are unable to come to a joint decision about any major long term issue pertaining to the children they are to consult jointly with a family dispute resolution practitioner as defined by section 10G of the Family Law Act1975 and seek the assistance of such family dispute resolution practitioner to come to a joint decision about the major long term issue pertaining to the children in dispute between them.
The mother and father shall:
(a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children; and
(c)Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release…
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- Case
- [2011] FMCAfam 105
- Decision Date
CaseChat Overview and Summary
The primary legal issues addressed by the court included determining the respective responsibilities of the parents in making significant decisions about the children's upbringing, the specific visitation schedule, and the division of costs associated with the children's travel and other needs. The court was tasked with ensuring that the arrangement was in the best interest of the children while promoting their ongoing relationship with both parents.
The court ruled that both parents would have equal shared parental responsibility for the children, requiring them to consult with each other on all major long-term decisions. In instances where they could not reach a joint decision, they were to engage a family dispute resolution practitioner. The children would reside with the mother, but the father would have specified visitation times, including school holidays and end-of-year holidays, with detailed provisions for travel arrangements and costs. The court also included specific injunctions and conditions to ensure the children's well-being and to manage potential conflicts between the parents.
In conclusion, the court issued comprehensive orders outlining the shared responsibilities of the parents, the visitation schedule, and the financial obligations related to the children's needs, ensuring a structured and supportive environment for the children's upbringing.
Orders
Orders of the court
1.
The parties have equal shared parental responsibility for the children [X] born [in] 2005 and [Y] born [in] 2007 (hereinafter referred to as “the children”).
2.
In the exercise of their equal shared parental responsibility for the children the parties are to consult with each other in respect of all major long term decisions pertaining to the children, which include but are not limited to issues about:
(a) The children’s education (both current and future);
(b) The children’s religious and cultural upbringing;
(c) The children’s health (including psychological health);
(d) The children’s names; and
(e) Any changes to the children’s living arrangements which significantly interferes with the operation of these orders, particularly with the arrangements for the children to spend time with each parent.
3.
In the event the parties are unable to come to a joint decision about any major long term issue pertaining to the children they are to consult jointly with a family dispute resolution practitioner as defined by section 10G of the Family Law Act 1975 and seek the assistance of such family dispute resolution practitioner to come to a joint decision about the major long term issue pertaining to the children in dispute between them.
4.
The mother and father shall:
(a) Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b) Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children; and
(c) Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.
5.
The children live with the mother.
6.
The children spend time with the father as follows:
(a) From 9:30am on 18 April 2011 until 4:30pm on 19 April 2011;
(b) From 9:30am on 22 April 2011 until 4:30pm on 23 April 2011;
(c) From 9:30am on 26 April 2011until 4:30pm on 27 April 2011;
(d) From 9:30am on 11 July 2011 until 4:30pm on 13 July 2011;
(e) From 9:30am on 17 July 2011 until 4:30pm on 19 July 2011;
(f) From 9:30am on 3 October 2011 until 4:30pm on 5 October 2011;
(g) From 9:30am on 7 October 2011 until 4:30pm on 9 October 2011;
(h) From 9:30am on 20 December 2011 until 4:30pm on 27 December 2011;
(i) For periods of up to seven (7) days in each subsequent South Australia school holiday other than the end of year school holidays as specified in order 6(j) and subject to any applicable condition specified by these orders;
(j) From December of 2014 onward for half of each end of year South Australian school holiday starting with the second half in 2014/2015 and each alternate year thereafter and the first half in 2015/2016 and each alternate year thereafter; and
(k) At any other times and on any other conditions as the parties may agree from time to time.
7.
The time specified in order (6)(a) to (e) take place at either [B] or [C] in the State of South Australia on condition that the father notify the mother in writing of the address at which he proposed to spend time with the children 28 days prior to the time specified in these orders.
8.
The time specified in order (6)(f) and (g) take place in [A], Western Australia with the mother to be responsible for her costs of travel and the costs of the children’s travel between South Australia, Western Australia and return and with the mother to be available to collect the children from the father for the period between 4:30pm on 5 October 2011 until 9:30am on 7 October 2011.
9.
The time specified in order 6(i) and (j) may take place in [A] Western Australia subject to the conditions relating to the children’s travel set out in these orders.
10.
The father be responsible for his costs of travel and any necessary accommodation expenses arising pursuant to him spending time with the children as a consequence of spending time with the children pursuant to orders (6)(a) to (e) hereof.
11.
It will be a condition of the father spending time with the children pursuant to order (6)(h), (i) and (j) that he has spent time with the children in accordance with the provisions of orders (6)(a) to (g) in the sense that he has spent graduated periods of time with the children, in South Australia, unless the parties agree otherwise. In particular it is open to the parties to transpose the provisions of orders 6(a) to (g) to other school holiday periods subject to financial considerations.
12.
The father give the mother fifty-six (56) days notice, in writing, of his intention to take time with the children pursuant to order (6)(i) and (j) hereof and advise her of the arrangements made by him for the children to travel between Adelaide, Perth and return.
13.
The father accompany the children, during all air flights between Adelaide, Perth and return, at his own expense, in order to facilitate him spending time with the children pursuant to these orders, other than the time specified in order 6(g) and 6(j) until such time as the child [Y] has attained the age of seven years.
14.
In the event the mother believe the children need to be accompanied on any air travel between Adelaide, Perth and return after [Y] has attained the age of seven years she shall be responsible for the costs of such accompaniment.
15.
The mother be responsible for the costs of the children travelling between their home and Adelaide in order to facilitate the father spending time with the children pursuant to orders 6(h), (i) and (j) hereof.
16.
The parties share equally the costs of the children’s air flights between Adelaide, Perth and return in order to facilitate the father spending time with the children pursuant to these orders (other than the time specified in order 6(g), (i) and (j)) until such times as [Y] has attained the age of seven years at which time the father will be responsible for paying for all of the children’s necessary travel expenses between Adelaide, Perth and return.
17.
The father make all necessary arrangements to book and pay for the costs of the children’s travel between Adelaide, Perth and return fifty six (56) days prior to the date specified for the children to depart Adelaide and provide the mother with flight details, including dates and times of departure and arrival in writing immediately following the booking, with the mother to reimburse the father her half of the children’s travel expenses arising from order 6(h) and the periods arising from order 6(i) hereof in respect of the holidays occurring prior to the seventh birthday of the child [Y], fourteen (14) days prior to the children’s departure from Adelaide arising from these orders.
18.
The father be responsible for booking and paying for the children’s return airfares between Adelaide, Perth and return to facilitate him spending time with the children pursuant to order 6(j) hereof and he provide the mother with 56 days written notice with flight details etc.
19.
In carrying out his responsibilities to make the children’s necessary travel arrangements pursuant to order 15 hereof the father shall use his best endeavours to obtain the cheapest possible economy air tickets for the children between Adelaide, Perth and return.
20.
The mother will be entitled to spend the first half of the Christmas school holiday period in 2012/2013 with the children but otherwise the father will be entitled to arrange to spend time with the children for a period of seven (7) consecutive days during the first half of the end of year school holiday in 2013/2014 pursuant to order 6(i) hereof so that such period includes Christmas Eve, Christmas Day and Boxing Day.
21.
The mother provide the father with details in writing of the children’s dietary needs, particularly any food allergies from which they suffer prior to each period of time the children spend with the father and the father is ordered to abide by these dietary restrictions and requirements.
22.
An injunction issue and the father be restrained from drinking any more than three (3) standard alcoholic drinks as defined by the Commonwealth Department of Health & Aging during each twenty-four (24) hour period the children are in his care.
23.
The mother is permitted to travel with the children outside of the Commonwealth of Australia subject to the following conditions:
(a) She shall give the father at least twenty-eight (28) days notice in writing of her intention to travel overseas with the children and concurrently with such notice she will provide the father with a comprehensive itinerary which will include the departure and return dates of the children’s travel outside of Australia and the country or countries which the mother and children will be travelling to and the approximate dates on which the children will arrive and depart from each such country as well as contact details for the children during such travel.
24.
The father is directed to sign the necessary passport renewals for the children to give effect to these orders.
25.
The parents authorise by this order, the schools, kindergartens and day care centres attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at the expense of the parent requesting same).
26.
During the time the children are with either parent, that parent shall:
(a) Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b) Speak of the other parent respectfully; and
(c) Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that other persons do not denigrate or insult the other parent in the presence or the hearing of the children.
27.
Each parent be at liberty to attend at the children’s school, pre-school or kindergarten for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.
28.
All other 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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