FEDERAL CIRCUIT COURT OF AUSTRALIA
| SARGENT & SELWYN (No.3) | [2018] FCCA 2836 |
| Catchwords: FAMILY LAW – Final parenting hearing – whether or not the parties should have equal shared parental responsibility – communication between the parties – whether or not there should be an equal time arrangements – presumption rebutted – practice and procedure – interlocutory applications – s.67ZBA application – application to transfer to Family Court – application for costs certificate. |
| Legislation: Family Law Act 1975, ss.60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 60CC(3)(j) 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(1), 65DAA (2), 65DAA(5), 67BZA, 67ZBB, 121 Crimes Act 1900 (NSW) |
| Cases cited: Sargent & Selwyn [2017] FamCAFC 228 Sargent & Selwyn (No 2) [2017] FCCA 3049 Waterford & Waterford [2013] FamCA 33 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 MRR v GR [2010] HCA 4 Other resources: |
| Applicant: | MR SARGENT |
| Respondent: | MS SELWYN |
| File Number: | SYC 7405 of 2013 |
| Judgment of: | Judge Harland |
| Hearing dates: | 30 April, 1, 2 & 4 May, and 16 July 2018 |
| Date of Last Submission: | 16 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 4 October 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Ms Cantrall |
| The Respondent: | Self-represented |
| Counsel for the Independent Children’s Lawyer: | Mr Jackson |
| Solicitor for the Independent Children’s Lawyer: | Brian Samuel & Associates |
ORDERS
That the application in a case filed on 9 March 2018 is dismissed.
That the application in a case filed on 18 April 2018 is dismissed.
That the application in a case filed on 12 July 2018 is dismissed.
All previous parenting orders be discharged.
The mother have sole parental responsibility for the child [X] (“the child”) born 2012.
That the child live with the mother.
Commencing the first week of Term 4 2018, that the father spend time with the child during school terms during the first week of each fortnight from after school Thursday to before school Monday of week two (or Tuesday if the Monday is a public holiday).
That for the purposes of these orders school holidays…
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- Case
- [2018] FCCA 2836
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate parenting orders, including who would have sole parental responsibility, where the child would live, and the specific arrangements for the father's time with the child. Additionally, the court needed to address the discharge of previous parenting orders and consider various ancillary matters such as communication between parents regarding the child's welfare, medical information, school and extracurricular activities, and international travel. The court also had to consider an injunction regarding the disclosure of the mother's residential address and the discharge of the Independent Children's Lawyer.
Judge Harland discharged all previous parenting orders. The court made orders granting the mother sole parental responsibility and the child living with the mother. Specific arrangements were detailed for the father's time with the child during school terms and holidays, including provisions for special days and handover procedures. The court also issued an injunction restraining the mother from instructing the child to keep her residential address secret from the father. Further orders mandated communication protocols between the parents regarding the child's health, education, and social activities, and imposed restrictions on denigrating the other parent. Provisions were also made for obtaining an Australian passport for the child and for overseas travel.
Orders
Orders of the court
1.
That the application in a case filed on 9 March 2018 is dismissed.
2.
That the application in a case filed on 18 April 2018 is dismissed.
3.
That the application in a case filed on 12 July 2018 is dismissed.
4.
All previous parenting orders be discharged.
5.
The mother have sole parental responsibility for the child [X] (“the child”) born 2012.
6.
That the child live with the mother.
7.
Commencing the first week of Term 4 2018, that the father spend time with the child during school terms during the first week of each fortnight from after school Thursday to before school Monday of week two (or Tuesday if the Monday is a public holiday).
8.
That for the purposes of these orders school holidays are defined as follows:
(a) The school holidays commence from after school on the last day of term;
(b) Handovers shall take place on the middle day of the school holidays at 5pm;
(c) In the event there are an uneven number of days in the school holidays, the parent with the care of the child during the first half of the school holidays shall have an additional day;
(d) The school holidays end before school on first day of school term; and
(e) In the event there is a pupil free day on the first or last day of school term the pupil free day will be treated as part of the school holidays.
9.
That the father spend time with the child during school term and long summer holidays for the first half of the school holidays in 2018 and each alternate year thereafter and for the second half of the school holidays in odd years and each alternate year thereafter.
10.
Notwithstanding any other order the parties will spend time with the child on the following special days:
(a) with the mother from 5:00pm on Christmas Eve until 5:00pm on Christmas Day in 2018 and each alternate year thereafter;
(b) with the father from 5:00pm on Christmas Day until 5:00pm on Boxing Day in 2018 and each alternate year thereafter;
(c) with the father from 5:00pm on Christmas Eve until 5:00pm on Christmas Day in 2019 and each alternate year thereafter;
(d) with the mother from 5:00 pm on Christmas Day until 5:00 pm on Boxing Day in 209 and each alternate year thereafter;
(e) The child will spend time with the parent with whom he is not otherwise spending time in accordance with the holiday time provided for in these Orders from 5:00pm on the day prior to his birthday until 1:00 pm on the child’s birthday;
(f) In the event that the child is not otherwise spending time with the Father in accordance with these Orders, then he will spend time with the Father from 5:00pm on the day before Fathers’ Day until 5:00pm on Fathers’ Day in each year;
(g) In the event that the child is not otherwise spending time with the Mother in accordance with these Orders, then he will spend time with the Mother from 5:00pm on the day before Mothers’ Day until 5:00pm on Mothers’ day in each year; and
(h) In the event the child is not otherwise spending time with the mother in accordance with these order, then he will spend time with the mother to celebrate the (religious) New Year from 9:00am on 13 April to 9:00am on 15 April each year when these dates fall on a weekend or a public holiday.
11.
On days when the child does not attend school changeovers will take place at (store omitted), Suburb A.
12.
Either parent is at liberty to arrange for a nominee known to the child to collect the child on that parent’s behalf, provided that parent gives written notice via email or text 2 hours prior to the handover time.
13.
That by way of injunction, the Mother be restrained from instructing [X] to keep her residential address as representing secret information not to be disclosed to the Father.
14.
That the Mother and Father shall ensure that they keep each other informed as soon as it is reasonable practical of:
(a) Any medical problems or illnesses suffered by [X] whilst in each parent's care;
(b) Any medications that have been prescribed for [X];
(c) Any specialist medical appointments;
(d) Any significant social, school or religious functions which [X] is to attend;
(e) The details of any sporting body(ies) that [X] is involved in;
15.
That each of the parents is to provide full particulars of any medical practitioner, health service provider or institution attended by [X] and provide the other with any authority or direction necessary to enable to the other parent to obtain all necessary information concerning [X].
16.
That both parents be permitted to liaise directly with [X]’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about [X]’s progress; and provide the other with any authority or direction necessary to enable to the other parent to obtain all necessary information concerning [X].
17.
The mother shall do all acts and things necessary to enable the father to:
a) Attend all school activities, such as parent-teacher interviews, special assemblies, sports carnivals and concerts to which parents are normally invited;
b) Communicate with any of the child schools or education providers to obtain progress reports in respect to the child;
c) Obtain any information, school photographs, circulars, newsletters of the like from any of the children’s schools or education providers normally provided to parents at the sole cost of the father;
and a copy of these Orders may be produced as evidence of such authority.
18.
Both parties are permitted to attend any religious events, school events to which parents are invited, award ceremonies and final fames and/or competitions the child is participating in.
19.
In the event any child suffers any emergency or serious illness or injury when in the care of a parent such parent shall as soon as practicable notify the other parent by telephone of such occurrence and the full details of the medical professional treating such child in such event.
20.
The mother shall authorise all medical practitioners upon whom the child attends for treatment to provide the father, upon his request, with all details of the child’s attendance, prognoses and treatment at the cost of the father.
21.
In the event the mother arranges counselling and/or psychological treatment for the child, she is to provide the father with the name and contact details of the treating professional in advance of the first appointment and she is authorise that person to speak to and give information to the father.
22.
Both parents are restrained by injunction from:
a) Denigrating or criticising the other parents or any member of the other parent’s family, in the presence or hearing of the child, or permitting any other person to do so; and
b) Discussing these proceedings, or disclosing the contents of any Court document in these proceedings, to or in the presence or hearing of the child, or permitting any other person to do so.
23.
The parties are to do all acts and things necessary to obtain an Australian passport for the child six (6) months before the expiry of the child’s current passport at their joint expense and in doing so:
a) the party requiring the passport will in the first instance obtain and complete the application and thereafter provide the application to the other party;
b) within seven (7) days of receiving the application the other party will complete any necessary details on the application and return the document together with half the necessary fee;
c) if the father obtains the passport he will make the passport available to the mother within two (2) days; and
d) the mother will hold the child’s passport and will release the passport to the father for the purpose of travelling with the child as agreed between the parties from time to time or in accordance with these Orders.
24.
Either party is permitted to take the child overseas for a holiday and in doing so:
a) The travel shall be during the period that the child would be in the care of the travelling parent in accordance with these Orders;
b) The parties will ensure that so far as practical these occasions are to coincide with school holidays; and
c) Each party will give the other party as much notification as possible of their intention to travel overseas with the child, and in any event, will give not less than 6 weeks written notice of such intention.
25.
Each parent is to keep the other parent advised of a telephone contact number that he or she can be contacted on in an emergency.
26.
Each parent is to notify the other about any change of email address, residential address and/or telephone number within 24 hours of the change occurring.
27.
The appointment of the Independent Children’s Lawyer is discharged.
28.
All extant applications in this matter are otherwise 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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