FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RP & JP | [2007] FMCAfam 654 |
| FAMILY LAW – Parenting orders. |
| Family Law Act 1975 (Cth) ss.60CC(2)(a) and (b), 60CC(3)(a), (b)(i) and (ii), (c), (d), (e), (f), (g), (i), (j) and (k), and 65L Federal Magistrates Court Rules2001 (Cth) r.23.01A5(a) |
| ASR & BP [2007] FMCAfam 552 P. Parkinson, ‘Decision-making about the best interests of the child: The impact of the two tiers’ (2006) 20 AJFL 179 |
| Applicant: | R J P |
| Respondent: | J F P |
| File number: | MLM 9622 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 19 June 2007 |
| Date of last submission: | 19 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 31 August 2007 |
REPRESENTATION
| Applicant: | Mr Pearson in person |
| Counsel for the Respondent: | Mr A. Scriva |
| Solicitors for the Respondent: | Peter S Dunn & Associates |
| Counsel for the Independent Children’s Lawyer: | Ms MG McNamee |
| Solicitors for the independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
That the Father and Mother have equal shared parental responsibility.
That the Children live with the Mother.
That the Children spend time with the Father as follows:
(a)on the first, third and any fifth Saturday of each month, from 1.00 pm to 7.00 pm;
(b)on the second and fourth Sunday of each month, from 10.00 am to 5.00 pm;
(c)on each Wednesday evening from 5.30 pm to 8.30 pm; and
(d)on the following days for the following periods irrespective of any other of these orders:
(i)on the Father’s birthday from 10.00 am to 6.00 pm, unless it is:
A.a school day, in which case from 5.30 pm to 7.00 pm; or
B.on a day which the Children are otherwise spending time with the Father under orders 3 or 4, in which case in accordance with those orders;
(ii)on each of the Children’s birthday from 1.00 pm to 6.00 pm, unless it is a school day, in which case from 5.30 pm to 7.00 pm;
(iii)on Father’s Day from 10.00 am to 6.00 pm; and
(iv)on Christmas Day from 1.00 pm to 7.00 pm.
That with effect from 1 July 2008, and then only if the Father has completed the parenting programme referred to in orders (14) and (15) below, the Children spend time with the Father as follows:
(a)in lieu of order (3)(a) and (b) above, on each alternate weekend from 10.00 am on Saturday to 4.00 pm Sunday; and
(b)in lieu of order (3)(c) above, from 5.30 pm Wednesday to 8.30 am Thursday each week;
(c)on Victorian gazetted school holidays:
(i)from 9.00 am on 2 January to 9.00 am on 16 January each year during the Christmas school holidays; and
(ii)from 10.00 am on the first Saturday to 10.00 am on the second Saturday of all other school holidays,
provided that if Mother’s Day or the Mother’s birthday fall on any day within the periods…
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- AGLC
- RP and JP [2007] FMCAfam 654
- Case
- [2007] FMCAfam 654
- Decision Date
CaseChat Overview and Summary
The court was required to decide on various legal issues, including the allocation of parental responsibility, the primary residence of the children, the visitation schedule for the non-resident parent, and the methods of communication between the parents and the children. Additionally, the court had to consider the parents' capacity to provide for the children's welfare, their ability to communicate effectively, and the need for supervision and support to ensure compliance with the orders.
In reaching its decision, the court considered the evidence presented by both parties, including the children's wishes, the parents' ability to provide for the children's physical and emotional needs, and the potential impact of the proposed arrangements on the children. The court emphasised the importance of the children's welfare and the need for the parents to facilitate a positive relationship between the children and the non-resident parent. The court determined that equal shared parental responsibility was in the best interests of the children, with the children residing primarily with the mother. The court also established a detailed visitation schedule for the father, along with specific provisions for communication between the parents and the children, and the use of a communication book and a Family Consultant to support compliance with the orders.
The court made specific orders regarding the children's living arrangements, visitation schedule, communication methods, and parental responsibilities. These orders were designed to ensure the children's welfare and to facilitate a healthy relationship between the children and the non-resident parent. The orders also included provisions for the parents to participate in a parenting program and to avoid denigrating each other in front of the children. The final orders were effective from 7 September 2007, with specific provisions for the parents to provide contact details, report serious illnesses or injuries, and consult on significant decisions related to the children's welfare.
Orders
Orders of the court
1.
That the Father and Mother have equal shared parental responsibility.
2.
That the Children live with the Mother.
3.
That the Children spend time with the Father as follows:
(a) on the first, third and any fifth Saturday of each month, from 1.00 pm to 7.00 pm;
(b) on the second and fourth Sunday of each month, from 10.00 am to 5.00 pm;
(c) on each Wednesday evening from 5.30 pm to 8.30 pm; and
(d) on the following days for the following periods irrespective of any other of these orders:
(i) on the Father’s birthday from 10.00 am to 6.00 pm, unless it is:
A. a school day, in which case from 5.30 pm to 7.00 pm; or
B. on a day which the Children are otherwise spending time with the Father under orders 3 or 4, in which case in accordance with those orders;
(ii) on each of the Children’s birthday from 1.00 pm to 6.00 pm, unless it is a school day, in which case from 5.30 pm to 7.00 pm;
(iii) on Father’s Day from 10.00 am to 6.00 pm; and
(iv) on Christmas Day from 1.00 pm to 7.00 pm.
4.
That with effect from 1 July 2008, and then only if the Father has completed the parenting programme referred to in orders (14) and (15) below, the Children spend time with the Father as follows:
(a) in lieu of order (3)(a) and (b) above, on each alternate weekend from 10.00 am on Saturday to 4.00 pm Sunday; and
(b) in lieu of order (3)(c) above, from 5.30 pm Wednesday to 8.30 am Thursday each week;
(c) on Victorian gazetted school holidays:
(i) from 9.00 am on 2 January to 9.00 am on 16 January each year during the Christmas school holidays; and
(ii) from 10.00 am on the first Saturday to 10.00 am on the second Saturday of all other school holidays,
provided that if Mother’s Day or the Mother’s birthday fall on any day within the periods in orders (3) and (4)(a), (b) and (c) above, then irrespective of orders (3) and (4)(a), (b) and (c) above, the Children spend time with the Mother as follows:
(d) on Mother’s Day from 10.00 am to 6.00 pm; and
(e) on the Mother’s birthday from 10.00 am to 6.00 pm.
5.
That the Children shall be allowed to speak on the telephone with the parent with whom they are not living or spending time with each Monday and Friday between 6.30 pm and 7.00 pm, and the parent with whom the Children are living or spending time with shall ensure the Children are available to receive the call.
6.
That each parent facilitate any reasonable request by one or both of the Children to telephone the other parent.
7.
Change over shall occur at the W Police Station car park, with:
(a) the parties to park at opposite ends of the car park at the commencement and conclusion of time spent with each parent;
(b) neither party to approach the other; and
(c) neither party to attempt to communicate with the other, save by the means set out in order 8.
8.
The parents shall use a communication book to convey information about the Children, the communication book to be passed between the parents at change over, via the eldest of the Children.
9.
Each parent is to have and maintain a mobile telephone, and is to advise the other parent of a mobile telephone number to be used to contact that parent for the purposes of any contact required by these orders, with:
(a) the Father to advise a mobile telephone number to the Mother’s solicitors by 4.00 pm on 5 September 2007; and
(b) the Mother, via her solicitors, to advise a mobile telephone number to the Father by 4.00 pm on 6 September 2007.
10.
Each parent shall advise the other of any serious illness or injury suffered by the Children as soon as practicable within 12 hours of the occurrence of the injury or onset of the illness.
11.
That each parent is authorised by these orders to communicate directly with the Children’s school, medical and other health practitioners on any matters concerning the Child, and those persons are authorised by these orders to release the original or a copy of any reports, documents or other materials concerning the Child to each parent.
12.
Neither parent shall denigrate the other to or in the presence of the Children and neither party shall involve the Children in issues in dispute between the parents.
13.
Under s.65L of the Family Law Act 1975 (Cth) these orders be supervised by a Family Consultant appointed by the Manager, Child Dispute Services, Melbourne Registry, and further that the Family Consultant so appointed give any party to these orders any assistance reasonably required by that party in relation to compliance with, and the carrying of, these orders until 31 August 2008.
14.
That by 4.00 pm on 14 September 2007 the Father is to contact the Family Relationship Centre nearest his current residence to gain assistance in enrolling in a Parenting Orders Program for high conflict families, and that by 4.00 pm on 28 September 2007 the Father is to be enrolled in such a program at a Family Relationship Centre.
15.
That the Father shall fully participate in and complete the Parenting Orders Program referred to in order (14) and shall comply with all reasonable directions by the Program Director.
16.
The parents shall consult with respect to:
(a) the enrolment of the Children in child care, school and any changes in enrolment once enrolled;
(b) the Children’s religious upbringing; and
(c) appropriate medical, dental and other health practitioners for the Children as the need requires,
and, in the event that the parents are not able to agree in relation to the above issues the parents are to be referred to a mediator nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court for mediation in an endeavour to resolve such issues. If there are costs of the mediation, these costs are to be shared equally between the Mother and Father.
17.
The Father shall not use cannabis, nor be under its influence, whilst spending time with the Children.
18.
The Father shall be entitled to attend each alternate school function or event concerning one or both the Children and the Mother shall advise the Father of the forthcoming function or event.
19.
The Independent Children’s Lawyer be discharged.
20.
These orders operate with effect from 7 September 2007, unless otherwise stated.
21.
For the purposes of these orders “weekend” means a Saturday and a Sunday as consecutive days.
22.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A 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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