FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAMMUT & SAMMUT | [2013] FCCA 2003 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – contested residence – relocation – spend time arrangements with non-resident parent – costs of the Independent Children’s Lawyer. |
| Legislation: Federal Circuit Court Rules 2001, r.21.02 |
| Best & Best [2013] Fam CAFC 5 Collu & Rinaldo [2010] FamCAFC 53 Hardie & Capris [2010] FamCA1046 Howell & Howell [2012] FamCA 903 In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 Kest & Olsson [2012] FamCA 148 McCall & Clark [2009] FamCAFC 92 Morgan & Miles (2007) 38 Fam LR 275; [2007] FamCA 1230 MRR & GR (2010) 240 CLR 461; [2010] HCA 4 Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103 Telfer & Telfer (1996) 20 Fam LR 619; (1996) FLC 92-376 |
| Applicant: | MR SAMMUT |
| Respondent: | MS SAMMUT |
| File Number: | SYC 2512 of 2007 |
| Judgment of: | Judge Monahan |
| Hearing dates: | 27, 28 and 29 May 2013 |
| Date of Last Submission: | 28 June 2013 (written submissions) |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Not applicable |
| Solicitors for the Applicant: | Self-represented litigant |
| Counsel for the Respondent: | Mr Jackson |
| Solicitors for the Respondent: | Filewood Carty Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Sperling |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW, Campbelltown Family Law |
ORDERS
That all existing parenting orders in relation to the child X born on (omitted) 2001 (“X”) be discharged.
Parental Responsibility
Subject to paragraphs 3 herein, MR SAMMUT (“the Father”) and MS SAMMUT (“the Mother”) have equal shared parental responsibility for making decisions about major long term issues in relation to X.
The Father have sole responsibility for making major long term decisions in relation to X concerning:
(a)education; and
(b)health.
Notwithstanding paragraph 3 herein, before any long term decision in relation to X’s education and/or health is made by the Father:
(a)the Father advise the Mother by email of his proposal relating to X (including the details of any professional advice received);
(b)if the Mother wishes to comment on the Father’s proposal, within 7 days after the date on the Father’s email, she advise the Father by return email of her views;
(c)upon receipt of any return email, the Father give consideration to the Mother’s views; and thereafter he make a decision and advise the Mother by further email of the outcome immediately after making that decision.
In the event that the Mother has a proposal as to any long term decision in relation to X’s education and/or health, the Mother advise the Father by email of:
(a)her proposal, including what professional information or advice she has received and, if applicable, the name or names of any relevant educational or health professional; and
(b)upon receipt, the Father give consideration to her proposal and thereafter make a decision and advise the Mother accordingly.
Notwithstanding paragraph 3(a) herein, and unless otherwise…
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- Sammut and Sammut [2013] FCCA 2003
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- [2013] FCCA 2003
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent of equal shared parental responsibility for X, particularly concerning decisions about X's education and health. It also had to establish specific arrangements for X to live with the father and spend time with the mother, including detailed provisions for holidays and communication. Further issues included the conditions under which the mother could spend time with X, particularly concerning her mental health, and the procedures for international travel with X.
The court ordered that existing parenting orders be discharged. It established that the father and mother would have equal shared parental responsibility for major long-term decisions, with the exception that the father would have sole responsibility for decisions concerning X's education and health. However, this sole responsibility was qualified by requirements for the father to consult with the mother via email before making such decisions, allowing her a period to provide input. The court also made detailed orders regarding X living with the father and spending time with the mother, with specific conditions attached to the mother's time, including the provision of medical reports regarding her mental health. Provisions were also made for communication, travel, and the obtaining of an Australian passport for X.
Orders
Orders of the court
1.
That all existing parenting orders in relation to the child X born on (omitted) 2001 (“X”) be discharged.
Parental Responsibility
2.
Subject to paragraphs 3 herein, MR SAMMUT (“the Father”) and MS SAMMUT (“the Mother”) have equal shared parental responsibility for making decisions about major long term issues in relation to X.
3.
The Father have sole responsibility for making major long term decisions in relation to X concerning:
(a) education; and
(b) health.
4.
Notwithstanding paragraph 3 herein, before any long term decision in relation to X’s education and/or health is made by the Father:
(a) the Father advise the Mother by email of his proposal relating to X (including the details of any professional advice received);
(b) if the Mother wishes to comment on the Father’s proposal, within 7 days after the date on the Father’s email, she advise the Father by return email of her views;
(c) upon receipt of any return email, the Father give consideration to the Mother’s views; and thereafter he make a decision and advise the Mother by further email of the outcome immediately after making that decision.
5.
In the event that the Mother has a proposal as to any long term decision in relation to X’s education and/or health, the Mother advise the Father by email of:
(a) her proposal, including what professional information or advice she has received and, if applicable, the name or names of any relevant educational or health professional; and
(b) upon receipt, the Father give consideration to her proposal and thereafter make a decision and advise the Mother accordingly.
6.
Notwithstanding paragraph 3(a) herein, and unless otherwise agreed between the parties in writing, the parties shall do all things necessary to ensure that X remains enrolled at and attends (omitted) Public School until the completion of Year 6.
7.
Each party be at liberty to attend all school and extracurricular activities of X at which parents would normally attend.
8.
Within 14 days of these orders, and within 14 days of X’s subsequent enrolment at any school, the Father do all acts and things and give all irrevocable authorities necessary to ensure that whichever school X may attend from time to time, that school forward directly to the mother copies of all of X’s school reports and merit cards, any written material pertaining to X’s academic and extra-curricular activities and order forms for school photographs.
9.
Unless he has already done so, the Father do all things necessary to ensure that within 3 months from the date of these orders, he obtain a referral from X’s general practitioner for X to attend upon a paediatrician and thereafter arrange such appointment at the earliest opportunity ensuring that he provides the paediatrician with a copy of the Report of Psychologist, Ms W dated 22 February 2013 and a copy of the report of Occupational Therapist, Ms A dated 21 December 2012.
10.
Except in the case of emergency and/or with the express written consent of the Father, the Mother be restrained from taking X to any appointments with any therapists or counsellors including but not limited to psychologists, psychiatrists, speech therapists, occupational therapists or counsellors.
11.
The Father be at liberty to disclose the details of these orders, when appropriate, to all principals and teachers of schools that X attends together with all hospital, medical, dental and other health professionals attended by X.
Live with and spend time with orders
12.
X live with the Father.
13.
X spend time with the Mother as agreed or, failing agreement, and subject to the Mother’s compliance with paragraphs 14 herein, as follows:
(a) During school terms for one weekend in February, March, May, June, August and November as agreed or, failing agreement the second weekend; and
(b) During school holidays:
(i) for one half the school holidays at the end of Terms 1 and 3 each year, and failing agreement as to which half, the first half in odd numbered years and the second half in even numbered years;
(ii) during the Term 2 school holidays
1. in even numbered years, for two weeks, commencing on the first day after the last day of school term and concluding on the Sunday prior to the commencement of Term 3; and
2. in odd numbered years, for one week commencing on the first day after the last day of school term; and
(iii) for three weeks as agreed in the December/January school holidays or, failing agreement, for the first three weeks in 2013/14 commencing on the first day after the last day of Term 4 and each alternate year thereafter and for the last three weeks in 2014/15 concluding on the Sunday prior to the commencement of Term 1 and each alternate year thereafter.
14.
Paragraph 13 herein is subject to the Mother providing to the Father, at least 5 days prior to each visit, either a satisfactory written report or telephone report from her treating general practitioner, or treating psychiatrist, or community mental health team case worker with such report to:
(a) describe of the background of the person giving the report (if they have not previously provided a report);
(b) the nature of their involvement in the Mother’s care;
(c) refer to the Mother’s looking after X unsupervised; and
(d) provide an opinion on the Mother’s current state of mental health.
15.
The Mother immediately notify the Father in writing if she changes her current general practitioner including details of the names and address of any subsequent general practitioner.
16.
Subject to paragraph 14 herein and for the purposes of facilitating time pursuant to paragraph 13 herein, the Father pre-pay airfares for X to travel as an unaccompanied minor from Sydney to (omitted) and return.
17.
Upon the Mother commencing paid employment, for the purposes of facilitating time pursuant to paragraph 13 herein, the Mother pre-pay the cost of airfares for X to travel as an unaccompanied minor from Sydney to (omitted) and the Father pre-pay the cost of airfares from (omitted) to Sydney.
Communication time
18.
Each party do all things necessary to encourage and facilitate X communicating by telephone with the party with whom he is not living with or spending time with on days and times as agreed and failing agreement on at least two occasions each per week.
Travel
19.
Pursuant to s.65Y(2) of the Family Law Act 1975, each party be permitted to travel with X out of the Commonwealth of Australia, provided such period of proposed travel takes place during the time X is living with that parent pursuant to these orders unless otherwise agreed between the parents in writing via email.
20.
In the event that either party wishes to take X on a holiday out of the Commonwealth of Australia then that party notify the other party no less than 60 days prior to the departure date of such proposed trip, and provide to the other party at this time:
(a) particulars including the proposed itinerary and proposed period of such trip;
(b) at least 10 days before departure, a final itinerary including contact telephone numbers and full street addresses of where X will be staying;
(c) copies of return airline tickets and details of flights once booked and irrespectively at least 10 days before departure; and
(d) in the event that it is the Mother who wishes to travel, she provide to the father a written report from her treating general practitioner, or treating psychiatrist, or community mental health team case worker, provided the written report is no older than 14 days and:
(i) describes the background of the person giving the report (if they have not previously provided a report);
(ii) describes the nature of their involvement in the Mother’s care;
(iii) refers to the Mother travelling overseas with X unsupervised; and
(iv) provides an opinion on the Mother’s current state of mental health.
21.
The parties forthwith apply for an Australian passport for X born on (omitted) 2001 with such passport to be retained by the Father unless it is needed by the Mother for the purposes of travel pursuant to paragraph 20 herein.
Other orders
22.
Each party ensure that the other parent is kept informed of his or her residential addresses, contact telephone number/s and email address, and each party notify the other of any changes to those details no later than 24 hours after any such changes.
23.
Each party communicate by telephone, including SMS in regard to matters of an urgent nature and otherwise communicate by email about day to day matters including arrangements for each party to spend time with X.
24.
In the event of X being hospitalised or receiving medical attention, the party who has care of X notify the other party as soon as possible.
25.
The Independent Children’s Lawyer:
(a) provide a copy of these Orders to X’s school;
(b) provide a copy of these Orders and a copy of the Family Report dated 18 January 2013 to the school counsellor at X’s school;
(c) provide a copy of these Orders to the Mother’s current general practitioner;
(d) discuss these Orders with X; and
(e) be thereafter discharged.
26.
There be no orders as to costs (including the costs of the Independent Children’s Lawyer).
27.
All extant applications before this Court be otherwise dismissed.
AND THE COURT NOTES THAT:
(A) The Father and X live in Sydney, and the Mother lives at (omitted).
(B) The Mother is not presently in paid employment, and is unable to travel to or stay in Sydney to spend time with X.
(C) The Father intends to enrol X at (omitted) School in (omitted) for high school.
(D) X currently attends upon Occupational Therapist Ms A in the (omitted) area and the parents intend for this to continue for as long as deemed necessary by the Occupational Therapist.
(E) For the purposes of paragraph 4 herein, if the Mother does not electronically respond as provided by these orders, the Father be entitled to presume that she does not wish to be involved in the decision-making process and he may decide the issue.
(F) Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Annexure A 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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