FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHERWIN & CANTOR | [2009] FMCAfam 519 |
| FAMILY LAW – Parenting – parental responsibility – who the child is to live with and spend time with. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Firth & Firth (1988) FLC 91-971 Goode & Goode [2006] FamCA 1346 Hall & Hall (1979) FLC 90-713 HR & HJ (2003) FLC 93-162 M & K[2007] FMCAfam 26 Pasio & Pasio (1979) FLC 90-659 Sieling & Sieling (1979) FLC 90-627 |
| Applicant: | MR SHERWIN |
| Respondent: | MS CANTOR |
| File Number: | SYC 7247 of 2007 |
| Judgment of: | Kemp FM |
| Hearing dates: | 18 & 19 May 2009 |
| Date of Last Submission: | 19 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Boyle |
| Solicitors for the Applicant: | Karras Partners |
| Respondent: | Self-represented |
ORDERS
That the parties are to have equal shared parental responsibility for [X] born in 2006 (“the child”) in consultation with one another with regard to major long term issues;
That the mother is to have the sole responsibility for making the day to day decisions about matters that are not major long term issues concerning the child while he is in her care, and the father is to have the sole responsibility for making the day to day decision about matters that are not major long term issues concerning the child while he is in his care.
That until the child starts school, the child live with the parties as follows:
3.1 For 2 weeks from the date of these orders, the child live with father each week from 9am Sunday until 12pm Monday and from 9am until 5pm Wednesday.
3.2 For 2 weeks following the expiration of order 3.1, the child live with the father from 9am Sunday until 5pm Monday and from 9am Wednesday until 5pm Thursday.
3.3 For 2 weeks following the expiration of order 3.2, the child live with the father from 9am Sunday until 5pm Tuesday and from 9am until 5pm Wednesday.
3.4 Thereafter, 9am Sunday until 5pm Wednesday in week 1 and from 9am Saturday and 5pm Wednesday in week 2, on alternate weeks.
3.5 That the child live with the mother at times he does not live with the father pursuant to orders 3.1-3.4 above.
3.6 .
3.6.1That the child live with the father and mother each alternate Christmas from 10.00am 24 December until 10.00am 26 December with the child to live with the father from 10.00am 24 December 2009.
3.6.2That in the event the mother is in the Sydney Metropolitan Area on 24, 25 or 26 December in the year in which she is to have the child in her sole care on Christmas Day, then the child is to spend time with the father from 6.00pm 25 December or some other period of 24 hours which coincides with the Christmas period as specified.
3.7 That the child live with the father for three blocks of 7 consecutive night periods each year as agreed between the…
Continue reading Sherwin & Cantor
Sign in free to access the full text
- AGLC
- Sherwin & Cantor [2009] FMCAfam 519
- Case
- [2009] FMCAfam 519
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the allocation of parental responsibility, the determination of day-to-day decision-making authority, and the establishment of a parenting schedule that would facilitate the child's relationship with both parents. The court also needed to address the parties' agreement on pre-school enrolment and the potential for future changes in living arrangements.
The court reasoned that it was essential to promote the child's relationship with both parents by creating a balanced parenting schedule that allowed for substantial periods of time with each parent. The court emphasised the importance of shared parental responsibility and the need for the parents to consult with each other on major long-term issues. The court also acknowledged the importance of the child's education, religious and cultural upbringing, health, and name as major long-term issues that needed to be considered in the best interests of the child. The court further noted the importance of the parents maintaining open communication and cooperation to ensure the child's well-being.
In its orders, the court directed that both parents share parental responsibility for the child, with the mother having sole decision-making authority for day-to-day matters while the child is in her care, and the father having sole decision-making authority for day-to-day matters while the child is in his care. The court established a detailed parenting schedule that gradually increased the time the child spent with the father until the child started school. The court also addressed the parties' agreement on pre-school enrolment and the potential for future changes in living arrangements. The court emphasised the importance of the parents maintaining open communication and cooperation to ensure the child's well-being.
Orders
Orders of the court
1.
That the parties are to have equal shared parental responsibility for [X] born in 2006 (“the child”) in consultation with one another with regard to major long term issues;
2.
That the mother is to have the sole responsibility for making the day to day decisions about matters that are not major long term issues concerning the child while he is in her care, and the father is to have the sole responsibility for making the day to day decision about matters that are not major long term issues concerning the child while he is in his care.
3.
That until the child starts school, the child live with the parties as follows:
3.1 For 2 weeks from the date of these orders, the child live with father each week from 9am Sunday until 12pm Monday and from 9am until 5pm Wednesday.
3.2 For 2 weeks following the expiration of order 3.1, the child live with the father from 9am Sunday until 5pm Monday and from 9am Wednesday until 5pm Thursday.
3.3 For 2 weeks following the expiration of order 3.2, the child live with the father from 9am Sunday until 5pm Tuesday and from 9am until 5pm Wednesday.
3.4 Thereafter, 9am Sunday until 5pm Wednesday in week 1 and from 9am Saturday and 5pm Wednesday in week 2, on alternate weeks.
3.5 That the child live with the mother at times he does not live with the father pursuant to orders 3.1-3.4 above.
3.6 .
3.6.1 That the child live with the father and mother each alternate Christmas from 10.00am 24 December until 10.00am 26 December with the child to live with the father from 10.00am 24 December 2009.
3.6.2 That in the event the mother is in the Sydney Metropolitan Area on 24, 25 or 26 December in the year in which she is to have the child in her sole care on Christmas Day, then the child is to spend time with the father from 6.00pm 25 December or some other period of 24 hours which coincides with the Christmas period as specified.
3.7 That the child live with the father for three blocks of 7 consecutive night periods each year as agreed between the parties, and failing agreement as nominated by the father at least one month in advance in writing.
3.8 That the child live with the mother for three block periods of 7 consecutive nights each year as agreed between the parties, and failing agreement as nominated by the mother at least one month in advance in writing.
3.9 That during the periods described in Orders 3.7 and 3.8 hereof, the arrangements in Orders 3.4 and 3.5 hereof will be suspended.
4.
That, unless otherwise agreed in writing between the parties, the changeover point for each residence period is to be the [R] Police Station, however in the event that the changeover is to occur on a day on which the child is attending preschool or school, then the changeover is to occur at the preschool or school instead.
5.
That upon the child commencing school, the following is to occur:
i) The child is to live with each parent alternating between periods of seven consecutive nights with the changeover to occur at the conclusion of school each Friday afternoon.
ii) The parent with whom the child is not living with is to collect the child at the conclusion of school on Wednesday afternoon and return him to the resident parent at 7.30pm.
6.
Subject to order 8 below, that both parties be restrained from enrolling the child in a pre-school, daycare centre or school without the written consent of the other parent.
7.
That both parties provide a written direction to the child’s treating General Medical Practitioner’s chosen by that party to treat the child in his or her care, to forward copies of any notes or treatment advice/prescription to the other medical practitioner chosen by the other party to the effect that each medical practitioner is fully informed of the child’s treatment regime.
8.
That in respect of the issue concerning the child’s attendance at pre-school/daycare, each party is to nominate three appropriate pre-school/daycare centres so that the other party can attend and investigate those nominations and the parties are then to attend Relationships Australia or a Family Relationships Centre or some other alternative Dispute Resolution provider to assist them reach agreement about the proposed pre-school/daycare centre.
BY CONSENT:
9.
That the child live with the father each Father’s day from 9am to 5pm and with the mother each Mother’s day from 9am to 5pm.
10.
That upon the child commencing school the following is to occur:
(a) That the child is to live with each of the parties for half of all school holiday periods as agreed between the parties, however failing agreement he is to live with the father for the first half of all holidays in odd numbered years and with the father for the second half of all school holidays in even numbered years.
11.
That the non-resident parent is to be able to communicate by telephone with the child each day when he is not in his/her care.
12.
Both parties are to keep the other informed in relation to all aspects of the child’s health, including advising the other party as soon as it is practicable in the event of any medical or other emergency concerning the child, and is to keep the other party fully informed in relation to any medication which has been prescribed for the child.
13.
The parties are to each keep the other informed of the name, address and contact telephone number of any medical practitioner who treats the child or prescribes the medication or a course of treatment for the child, and shall authorise that practitioner to discuss the child’s medical condition, treatment and medications with the other party.
14.
That upon the child attending pre-school/school each parent is to ensure the preschool/school is authorised to forward to each of the parties copies of the school reports and any other information ordinarily sent to parents.
15.
Each of the parties shall keep the other informed of their current place of residence, telephone numbers (including mobile telephone numbers) and email addresses and notify the other forthwith upon any change of details.
16.
That the child spend one night from 12 noon until 12 noon, in the care of the wife and on each of the following religious holidays:
(a) Jewish New Year
(b) Yom Kippur
(c) Passover
(d) Channuka
With the mother to provide the father with not less than one month prior notice in writing of the relevant date.
17.
That each of the parties be restrained from transporting any child in a motor vehicle without using an age appropriate child restraint for each child.
18.
That both parties are hereby restrained from filming the other or arranging for any other person to film the other, on residence changeovers.
THE COURT FURTHER ORDERS
19.
No order as to costs, save leave is granted to the parties to restore the matter on 14 days written notice, to argue that some other order as to costs should be made. If such leave is not exercised within the stipulated time, it will lapse, and this order will stand as a final order.
20.
All outstanding applications (save as to costs) otherwise be dismissed.
21.
All exhibits tendered in these proceedings, be returned at the expiration of 1 calendar month unless an appeal is lodged.
22.
The solicitor who issued any subpoena collect the subpoenaed material produced and return it to the owner in 14 days.
23.
The matter be removed from the list of cases awaiting finalisation.
24.
Pursuant to section 65DA(2) 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 included in these orders.
THE COURT NOTES
25.
In the event that the parties agree the child should attend a pre-school or daycare centre then the parties are to enrol the child in a pre-school or daycare centre with a pre-school curriculum which is non-denominational and within a 15km radius of [D] unless otherwise agreed between the parties.
26.
The definition of major long term issues in accordance with section 4(1) of the Family Law Act 1975 is as follows:
(1) Major long term issues in relation to a child mean issues about the care, welfare and development of the child of a long term nature and includes (but is not limited to) issues of that nature about:-
1. the child’s education (both current and future); and
2. the child’s religious and cultural upbringing; and
3. the child’s health; and
4. the child’s name; and
5. changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent. To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long term issue in relation to the child, however the decision will involve a major long term issue if, for example, the relationship with a new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
27.
That both parties agree that they will not employ a full time carer for the child while he is their respective care.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.