Scott & Kent

Case [2013] FCCA 127


FEDERAL CIRCUIT COURT OF AUSTRALIA

SCOTT & KENT [2013] FCCA 127

Catchwords:
FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – whether sole parental responsibility or equal shared parental responsibility in the best interests of the child – major long-term issues –  residence – where respondent proposes that the child should live with him once he commences attending high school – where respondent proposes an almost equal time arrangement with the applicant once child commences high school – where general agreement between parties that interim residence and spend time Orders made on 16 December 2011 were wholly successful – whether proposed orders are “micro-managing parenting” – courts should take a minimalist approach in making parenting orders – courts should only intervene when the welfare of the child will be advanced by making an order.

FAMILY LAW – Children – name of child – best interests of the child – where mother has returned to former surname – where father has remarried – where mother seeks to add her surname to child’s name – no proposal to remove father’s surname – no proposal for hyphenated surname.

FAMILY LAW – Children – children’s schooling – best interests of the child the paramount consideration – compromise an erroneous approach.

FAMILY LAW – Children – travel outside Australia – whether parties should be permitted to take child outside Australia for a holiday for a period of 14 days or more – passport – whether child should be issued with an Australian passport.

Legislation:

Australian Passports Act 2005 (Cth), s.11

Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61B, 61DA, 61DB, 65DAA, 65DAC, 65DAE, 65Y, 111B

Births, Deaths and Marriages Registration Act 1995 (NSW) s.22

Family Law (Child Abduction Convention) Regulations 1986 Sch.2

Cases cited:
Beach & Stemmler (1979) 5 Fam LR Note 13; FLC 90-692
Chapman & Palmer (1978) 4 Fam LR 462; FLC 90-510
Flanagan & Handcock [2000] FamCA 150; (2001) 27 Fam LR 615; FLC 93-074
In the Marriage of Hall (1979) 5 Fam LR 609; FLC 90-713
Line & Line (1996) 21 Fam LR 259; (1997) FLC 92-729
Mahony & McKenzie (1993) 16 Fam LR 803; FLC 92-408
MRR v GR [2010] HCA 4; (2010) 263 ALR 368; 42 Fam LR 531; FLC 93-424; 84 ALJR 220
Nash & Reis [2013] FMCAfam 11
Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025
Sampson and Hartnett [2007] FamCA 1365; (2007) FLC 93-350; (2008) 38 Fam LR 315
Scott & Kent [2011] FMCAfam 1382
VR & RR [2002] FamCA 320; (2002) 29 Fam LR 39; FLC 93-099
Applicant: MS SCOTT
Respondent: MR KENT
File Number: SYC 2313 of 2009
Judgment of: Judge Scarlett
Hearing date: 3 July 2012
Date of Last Submission: 7 August 2012
Delivered at: Sydney
Delivered on: 26 April 2013

REPRESENTATION

Counsel for the Applicant: Mr Jackson
Solicitors for the Applicant: Anne Day & Associates
Counsel for the Respondent: The…

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Details
AGLC
SCOTT & KENT [2013] FCCA 127
Case
[2013] FCCA 127
Decision Date

CaseChat Overview and Summary

This case involved an application by the mother concerning parenting orders for the parties' child, [X] Kent, born in 2003. The dispute encompassed issues relating to the child's name, parental responsibility for major long-term issues, residence, time spent with each parent, schooling, and international travel. The court was required to determine the best interests of the child in relation to these matters.

The court was asked to consider whether the child's name should be changed to include the mother's surname, the allocation of sole or equal shared parental responsibility for significant long-term decisions concerning the child's education, religion, culture, health, name, and living arrangements, and the specific arrangements for the child's residence and time with each parent, particularly as the child approached high school. Further issues included the child's schooling, the ability of each parent to take the child overseas for holidays, and the issuance of an Australian passport for the child.

In its reasoning, the court applied the paramount consideration of the child's best interests. It found that the mother should have sole parental responsibility for specific major long-term issues, including education, religion, culture, health, and name, while requiring her to consult with the father on these matters. The court also ordered that the child reside with the mother and detailed specific arrangements for the child to spend time with the father, including during school terms and holidays, with provisions for communication and changeovers. The court also made orders regarding the child's schooling, permitting the mother to enrol the child at a specific high school, and allowed for international travel and the application for an Australian passport, subject to notification requirements. The court explicitly rejected a compromise approach to schooling, emphasising the best interests of the child.

Orders

Orders of the court

1.

All previous parenting Orders are discharged.

2.

The name of the child known as [X] Kent born [in] 2003 is to be [X] SCOTT KENT and the Registrar of Births, Deaths and Marriages in and for the State of New South Wales is directed to register the name [X] Scott Kent in the Births, Deaths and Marriages Register.

3.

The Applicant Mother is to have sole parental responsibility for the child [X] SCOTT KENT in respect of the following major long-term issues in relation to the child:

(a) the child’s current and future education;

(b) the child’s religion and cultural upbringing;

(c) the child’s health;

(d) the child’s name; and

(e) any changes to the child’s living arrangements that would make it significantly more difficult for the child to spend time with the father.

4.

The Mother must inform the Father within seven (7) days of any decision which she proposes to make in respect of any of the major long-term issues referred to in Order (3) above and take into consideration any views expressed by the Father in relation to any proposed decision.

5.

Each party is to have sole parental responsibility for making decisions on day-to-day matters not being major long-term issues in respect of the child [X] at all times when he is living with or spending time with that party in accordance with these orders.

6.

The child [X] is to live with the Mother.

7.

The child [X] is to spend time with the Father as follows:

(a) During the school term:

(i) Each Wednesday from after school until the commencement of school on the Thursday morning;

(ii) Until 2 March 2015 each alternate weekend from after school on the Friday until the commencement of school on the Monday morning, provided that if the Monday is a public holiday then the Father’s time with the child is to conclude at the commencement of school on the Tuesday morning;

(iii) From and after 3 March 2015 each alternate weekend from after school on the Friday until the commencement of school on the Tuesday morning;

(iv) For half of each of the Autumn, Winter and Spring school holiday periods in each year being the second half in 2013 and each odd-numbered year thereafter and the first half in 2014 and each even-numbered year thereafter;

(v) From 9:00am on New Year’s Day 1 January to 6:00 pm on 25 January in 2014 and 2015;

(vi) From 9:00 am on New Year’s Day 1 January to 6:00 pm on Australia Day 26 January in 2016 and each year thereafter;

(vii) From 9:00 am on Christmas Eve until 1:00 pm on Christmas Day in 2013 and each odd-numbered year thereafter;

(viii) From 1:00 pm on Christmas Day until 6:00 pm on Boxing Day in 2014 and each even-numbered year thereafter;

(ix) For the weekend that includes Father’s Day in 2013 and 2014 commencing from after school on the Friday until the commencement of school on the following Monday;

(x) For the weekend that includes Father’s Day in 2015 and each year thereafter commencing from after school on the Friday until the commencement of school on the following Tuesday;

(xi) From 9:00 am to 1:00 pm on the child’s birthday if that day should fall on a day when the child would not otherwise be spending time with the Father; and

(xii) At such other times if any as the parties shall agree.

8.

For the purposes of Order (7) above the Father’s wife MS K is permitted to collect the child from school at the commencement of the child’s time with the father and deliver the child to school at the conclusion of the child’s time with the Father.

9.

The time that the child [X] spends with the Father is to be suspended:

(a) for the weekend that includes Mother’s Day in each year; and

(b) from 1:00 pm to 5:000 pm on the child’s birthday if that day should fall on a day when the child is otherwise spending time with the Father.

10.

For the purpose of the Father spending time with the child at the times set out in Order (7) above not involving the child being collected from school or returned to school the Father or his wife is to collect the child from the Mother’s residence or such other place as the Mother may nominate at 9:00am on the first day of his school holiday time with the child and the Mother is to collect the child from the Father’s residence at 6:00pm on the last day of the Father’s time with the child.

11.

For the purposes of changeover as provided by Order (7)(above each parent must do all things necessary to ensure that the child is ready promptly to meet the other parent at the time specified.

12.

The child [X] is to have telephone communication with the Father at a time commencing between the hours of 8:00 and 8:15 pm on every night that the child is in the Mother’s care according to these Orders and the Mother must do all things reasonably necessary to facilitate the telephone communication.

13.

The child [X] is to have telephone communication with the Mother at a time commencing between the hours of 8:00 and 8:15pm on every night that the child is in the Father’s care according to these Orders and the Father must do all things reasonably necessary to facilitate the telephone communication.

14.

Neither party is to denigrate or criticise the other party or the other party’s wife or partner in the presence or hearing of the child [X].

15.

Each party is restrained by injunction from discussing these proceedings with the child [X].

16.

In the event that the child [X] requires hospitalisation or treatment by a specialist medical practitioner when in the care of one or other of the parties then that party must inform the other party as soon as is reasonably practicable and provide the other party with the details of the name and address of the hospital or medical practitioner.

17.

Each party is permitted to obtain from the child’s school copies of all school reports, newsletters, information about school photographs and other information normally provided to parents of children attending that school.

18.

Each party is permitted to attend at the child’s school for the purposes of attending in social functions, sporting events and parent-teacher interviews.

19.

The Mother is permitted to enrol the child [X] at [C] High School at [L] to commence Year 7 at the beginning of Term 1 in 2015 and the parties are to do all things and sign all documents necessary to secure the child’s enrolment at that school.

20.

In the event that the child [X] is not able to obtain a place at [C] High School to commence Year 7 in 2015 then the partiers are to do all things necessary to enrol the child at [S] College Sydney in to commence Year 7 in 2015.

21.

The mother is permitted to take the child [X] SCOTT KENT born [in] 2003 out of Australia for the purpose of a holiday in Hong Kong for a period of up to fourteen (14) days prior to 3 March 2015 and for a period of up to twenty-one (21) days from and after 3 March 2015 PROVIDED THAT she informs the Father in writing giving details of the child’s travel itinerary including flight numbers and times and an address and telephone number upon which the child may be contacted whilst out of Australia no later than three (3) months prior to the proposed date of travel.

22.

The Father is permitted to take the child [X] SCOTT KENT born [in] 2003 out of Australia for the purpose of a holiday in the Philippines for a period of up to fourteen (14) days prior to 3 March 2015 and for a period of up to twenty-one (21) days from and after 3 March 2015 PROVIDED THAT he informs the Mother in writing giving details of the child’s travel itinerary including flight numbers and times and an address and telephone number upon which the child may be contacted whilst out of Australia no later than three (3) months prior to the proposed date of travel.

23.

The child [X] SCOTT KENT born [in] 2003 is permitted to travel internationally and the Mother is permitted to apply for an Australian Passport for the said child and for this purpose the parties are to do all things and sign all documents necessary to facilitate the obtaining of a passport for the child.

24.

The parties must keep each other informed of their current home address, email address, mobile telephone number and landline telephone number if any and inform each other no later than seven (7) days prior to any change to any address or telephone number.

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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