Sharpe and Sheraton

Case [2020] FamCA 250

FAMILY COURT OF AUSTRALIA

SHARPE & SHERATON [2020] FamCA 250
FAMILY LAW – CHILDREN – Interim parenting – Discrete issues as to extent of alternate weekend and school holiday time – Consideration of applicable principles – Best interests of children.
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, s 65DAA, 69ZL 
Bondelmonte v Bondelmonte  (2016) 259 CLR 662
Cimorelli & Wenlack [2020] FamCAFC 58
Dundas & Blake [2013] FamCAFC 133
Eaby & Speelman (2015) FamCA 104
Godfrey & Sanders [2007] FamCA 102
Goode & Goode [2006] FamCA 1346
Lim & Zong [2020] FamCAFC 20
Marvel & Marvel [2010] FamCAFC 101
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Sigley & Evor (2011) 44 Fam LR 439
Vallans & Vallans [2019] FamCAFC 260
APPLICANT: Mr Sharpe
RESPONDENT: Ms Sheraton
INDEPENDENT CHILDREN’S LAWYER: Ms Bevan
FILE NUMBER: PAC 2197 of 2019
DATE DELIVERED: 17 April 2020
PLACE DELIVERED: Parramatta
PLACE HEARD: Parramatta
JUDGMENT OF: Foster J
HEARING DATE: 11 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gardiner
SOLICITOR FOR THE APPLICANT: Coleman Greig Lawyers
COUNSEL FOR THE RESPONDENT: Mr Fowler
SOLICITOR FOR THE RESPONDENT: Watts McCray (NSW) Pty Ltd
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Bevan Family Lawyers

Orders

By Consent And Pending Further Order

  1. That the children X born … 2008, Y born … 2010 and Z born … 2011 live with the mother.

  2. That the children shall spend  time with the father on the following occasions, and on these occasions the mother's time is to be suspended:

    (a)On each of the children's birthdays from the conclusion of school to 5.30 pm if such birthday falls on a school day, or alternatively from 9.00 am to 1.00 pm if such birthday falls on a non–school day, should the children not already be in the father's care.

    (b)On the father's birthday from the conclusion of school (or 9.00 am if a non-school day) to the commencement of school (or 9.00 am if a non‑school day) on the following day, should the children not already be in the father's care.

    (c)On Father's Day from 5.00 pm on the Saturday prior to Father's Day to 5.00 pm Father's Day, should the children not already be in the father's care.

    (d)From 9.00 am Christmas Eve to 1.00 pm Christmas day in each odd numbered year and from 1.00 pm Christmas Day to 6.00 pm Boxing Day in each even numbered year.

    (e)Any such other time as agreed in writing between the parties from time to time.

  3. That the children shall spend time with the mother on the following occasions, and on these occasions the father's time is to be suspended.

    (a)On each of the children's birthdays from the conclusion of school to 5.30 pm if such birthday falls on a school day, or alternatively from 9.00 am to 1.00 pm if such birthday falls on a  non-school day, should the children not already be in the mother's care.

    (b)On Mother's…

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AGLC
Sharpe and Sheraton [2020] FamCA 250
Case
[2020] FamCA 250
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review heard by Foster J. The dispute involved the parenting arrangements for three children, X, Y, and Z. Pending the delivery of judgment, orders were made by consent regarding the children's living arrangements and time spent with each parent.

The court was required to determine the specific terms of interim parenting orders. These orders addressed where the children would live, the schedule for time spent with each parent, including specific arrangements for birthdays, holidays, and regular weekend and weekday contact, as well as provisions for communication regarding the children's schooling, health, and general welfare. The court also had to consider and make orders concerning parental conduct, including restrictions on criticism of the other parent, discussion of proceedings with the children, and specific prohibitions related to supervision, alcohol consumption, and the children's access to certain media and online activities.

The orders were made by consent of the parties, reflecting an agreement on the interim arrangements. The court adopted the terms of the orders previously made by the Senior Registrar on 14 November 2019, with some modifications and clarifications. These included provisions for the children to live with the mother, detailed schedules for time spent with the father on alternate weekends and Wednesdays, and specific holiday arrangements. The orders also imposed mutual restraints on the parties, such as prohibitions on denigrating each other in the presence of the children, discussing court proceedings with them, and allowing unsupervised time or access to inappropriate content.

The final orders, made pending further order, stipulated that the children X, Y, and Z would live with the mother. The orders detailed specific times the children would spend with the father, including alternate weekends and Wednesdays during school terms, and outlined arrangements for school holidays. Further provisions covered communication protocols, parental conduct, and restrictions on unsupervised time, alcohol, and access to certain media and online activities.

Orders

Orders of the court

By Consent And Pending Further Order

1.

That the children X born … 2008, Y born … 2010 and Z born … 2011 live with the mother.

2.

That the children shall spend time with the father on the following occasions, and on these occasions the mother's time is to be suspended:

(a) On each of the children's birthdays from the conclusion of school to 5.30 pm if such birthday falls on a school day, or alternatively from 9.00 am to 1.00 pm if such birthday falls on a non–school day, should the children not already be in the father's care.

(b) On the father's birthday from the conclusion of school (or 9.00 am if a non-school day) to the commencement of school (or 9.00 am if a non‑school day) on the following day, should the children not already be in the father's care.

(c) On Father's Day from 5.00 pm on the Saturday prior to Father's Day to 5.00 pm Father's Day, should the children not already be in the father's care.

(d) From 9.00 am Christmas Eve to 1.00 pm Christmas day in each odd numbered year and from 1.00 pm Christmas Day to 6.00 pm Boxing Day in each even numbered year.

(e) Any such other time as agreed in writing between the parties from time to time.

3.

That the children shall spend time with the mother on the following occasions, and on these occasions the father's time is to be suspended.

(a) On each of the children's birthdays from the conclusion of school to 5.30 pm if such birthday falls on a school day, or alternatively from 9.00 am to 1.00 pm if such birthday falls on a non-school day, should the children not already be in the mother's care.

(b) On Mother's Day from 5.00 pm on the Saturday prior to Mother's Day to 5.00 pm Mother's Day, should the children not already be in the mother's care.

(c) On the Mother's birthday from the conclusion of school (or 9.00 am if a non-school day) to the commencement of school (or 9.00 am if a non‑school day) on the following day, should the children not already be in the mother's care.

(d) From 9.00 am Christmas Eve to 1.00 pm Christmas day in each even numbered year and from 1.00 pm Christmas Day to 6.00 pm Boxing Day in each odd numbered year.

(e) Any such other time as agreed in writing between the parties from time to time.

4.

That each party is hereby authorised to obtain from the children's schools all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.

5.

That each party is hereby authorised to attend each of the children's sporting activities.

6.

That in the event of any of the children being hospitalised, suffering illnesses/injury and/or visiting a general practitioner (GP) during any period referred to in these orders, the parent caring for the children shall notify the other parent as soon as practicable after the first contact with the D Medical Centre or hospital, and in any event within two hours and both parties shall be at liberty to visit the children if hospitalised.

7.

That in the event of a party making an appointment for any of the children with a specialist or allied health professional apart from a general practitioner, that parent shall ensure the other parent is promptly notified of the appointment so as to enable the other parent to attend the appointment, should he/she wish.

8.

That the parties advise the other of any change of mobile number, home telephone number, his/her residential address and his/her email address within 24 hours of such change occurring.

9.

That each party is restrained from criticising or denigrating the other party, or his/her partner and/or family members, in the presence of, or within hearing of the children or on any social medial or other public forums.

10.

That the parties be restrained from discussing these court proceedings with the children or allowing the children to see or have access to any documents filed or created for the purposes of these proceedings.

11.

That for the purposes of changeovers if not at school, that changeover be facilitated by the mother by delivering the children to the father’s residence at the commencement of time and the father returning the children to the mother’s residence at the conclusion of time.

12.

That both parties be and are hereby restrained from:

(a) Leaving the children unsupervised at any time they are spending time with them;

(b) Drinking alcohol whilst the children are spending time with them and for a period of 12 hours beforehand;

(c) Allowing the children to access any pornographic images or content;

(d) Allowing the children to play or access games which are classified as not being suitable for children under the age of 15 years and for allowing the child Z to play or watch others playing the game “Fortnite”;

(e) Allowing the children to participate on any online, voice over internet protocol or mobile telephone network communication with any other person other than members of the children’s direct and extended family or actual school friends;

(f) Allowing the child Z to sleep in the father’s bedroom; and

(g) Permitting the children to access mobile telephones and/or internet enabled devices after 8.00 pm.

It Is Further Ordered Pending Further Order

13.

That the children, otherwise, spend time with the father as follows:

(a) During school term each alternate weekend from after school Friday (or 3.00 pm if not a school day) to before school (or 5.00 pm if not a school day) Monday commencing on the first weekend after the resumption of school term and each Wednesday from after school (or 3.00 pm if not a school day) until 7.00 pm.

(b) During NSW school holidays as follows:

(i) During the Term One 2020 mid-year school holiday period for a period of five consecutive nights commencing on the first Saturday of such holidays at 9.00 am and concluding on the following Thursday at 5.00 pm and thereafter during the mid-year school holiday periods for a period of seven consecutive nights commencing on the first Saturday of such holidays at 9.00 am and concluding on the following Saturday at 5.00 pm; and

(ii) During the Christmas school holidays for two non-consecutive periods of seven nights as agreed by the parties in writing and in default of agreement from 2 January at 9.00 am to 9 January at 5.00 pm and then from 17 January at 9.00 am to 24 January at 5.00 pm.

(c) At such other times as the parties may agree in writing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 11 February 2020 the application for review was heard and on that day judgment was reserved. Pending judgment orders were made by consent as follows:PENDING DELIVERY OF JUDGMENT, IT IS ORDERED THAT(1)The children X born in 2008, Y born in 2010 and Z born in 2011 live with the mother.The children spend time with the father as provided for in Order 1.1 made by the Senior Registrar on 14 November 2019 and that the children spend specified time with the mother as provided for in Order 1.2 of the orders made by the Senior Registrar on 14 November 2019 as follows:(2)That the children shall spend additional time with the father on the following occasions, and on these occasions the mother's time are to be suspended: (a)On each of the children's birthdays from the conclusion of school to 5.30 pm if such birthday falls on a school day, or alternatively from 9.00 am to 1.00 pm if such birthday falls on a non–school day, should the children not already be in the father's care.(b)On the father's birthday from the conclusion of school (or 9.00 am if a non-school day) to the commencement of school (or 9.00 am if a non-school day) on the following day, should the children not already be in the father's care.(c)On Father's Day from 5.00 pm on the Saturday prior to Father's Day to 5.00 pm Father's Day, should the children not already be in the father's care. (d)From 9.00 am Christmas Eve to 1.00 pm Christmas day in each odd numbered years and from 1.00 pm Christmas Day to 6.00 pm Boxing Day in each even numbered year.(e)Any such other time as agreed in writing between the parties from time to time. (3)That the children shall spend additional time with the mother on the following occasions, and on these occasions the father's time is to be suspended. (a)On each of the children's birthday from the conclusion of school to 5.30 pm if such birthday falls on a school day, or alternatively from 9.00 am to 1.00 pm if such birthday falls on a non-school day, should the children not already be in the mother's care.(b)On Mother's Day from 5.00 pm on Saturday prior to Mother's Day to 5.00 pm Mother's Day, should the children not already be in the mother's care. (c)On the mother's birthday from the conclusion of school (or 9.00 am if a non-school day) to the commencement of school (or 9.00 am if a non-school day) on the following day, should the children not already be in the mother's care. (d)From 9.00 am Christmas Eve to 1.00 pm Christmas day in each even numbered years and from 1.00 pm Christmas Day to 6.00 pm Boxing Day in each odd numbered year. (e)Any such other time as agreed in writing between the parties from time to time. (4)During school term the children spend time with the father each alternate weekend commencing Friday, 21 February 2020 from after school or if a non-school day from 3.00 pm Friday until 5.00 pm Sunday and on each Tuesday from after school or if a non-school day 3.00 pm until 7.00 pm.Orders in terms of paragraph 2, 3, 4, 5, 6 and 7 of the orders made by Senior Registrar on 14 November 2019.(5)That each party is hereby authorised to obtain from the children's schools all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited. (6)That each party is hereby authorised to attend each of the children's sporting activities. (7)That in the event of any of the children being hospitalised, suffering illnesses/injury and/or visiting general practitioner (GP) during any period referred to in these orders, the parent caring for the children shall notify the other parent as soon as practicable after the first contact with the D Medical Centre or hospital, and in any event within two hours and both parties shall be at liberty to visit the children if hospitalised. (8)That in the event of a party making an appointment for any of the children with a specialist or allied health professional apart from a general practitioner, that parent shall ensure the other parent is promptly notified of the appointment so as to enable the other parent to attend the appointment, should he/she wish.(9)That the parties advise the other of any change of mobile number, home telephone number, his/her residential address and his/her email address within 24 hours of such change occurring. (10)That each party is restrained from criticising or denigrating the other party, or his/her partner and/or family members, in the presence of, or within hearing of the children or on any social media or other public forums. (11)The parties be restrained from discussing these court proceedings with the children or allowing the children to see or have access to any documents filed or created for the purposes of these proceedings.(12)For the purposes of changeovers if not at school, that changeover be facilitated by the mother by delivering the children to the father’s residence at the commencement of time and the father returning the children to the mother’s residence at the conclusion of time.(13)Both parties be restrained from:(a)Leaving the children unsupervised at any time they are spending time with them;(b)Drinking alcohol whilst the children are spending time with them and for a period of 12 hours beforehand;(c)Allowing the children to access any pornographic images or content;(d)Allowing the children to play or access games which are classified as not being suitable for children under the age of 15 years and for allowing the child Z to play or watch others playing the game “Fortnite”;(e)Allowing the children to participate on any online, voice over internet protocol or mobile telephone network communication with any other person other than members of the children’s direct and extended family or actual school friends;(f)Allowing the child Z to sleep in the father’s bedroom; and(g)Permitting the children to access mobile telephones and/or internet enabled devices after 8.00 pm.

Ratio Decidendi

Legal Principle Established

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