FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SILAS & BARRY | [2009] FMCAfam 448 |
| FAMILY LAW – Parenting – unilateral relocation by mother – whether children should return – impact of location of children on meaningful relationship – high conflict between parents – change of name of children. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| D & SV (2003) Fam LR 91 Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3. |
| Applicant: | MR SILAS |
| Respondent: | MS BARRY |
| File Number: | SYC 566 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing date: | 16-17 March 2009 |
| Date of Last Submission: | 17 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Watkins |
| Solicitors for the Applicant: | Watkins Tapsell Solicitors |
| Counsel for the Respondent: | Ms Carr |
| Solicitors for the Respondent: | JNT Legal Solicitors & Conveyancers |
ORDERS
The parents have equal parental responsibility for the Children [X] born in 2004 and [Y] born in 2007 (“the Children”).
No later than the commencement of school term 3 2009, the Mother to do all things necessary to return the Children to live within a
25 kilometre radius of the [E] Post Office and thereafter to enrol the Children in a school/preschool within a 25 kilometre radius of the [E] Post Office.
Unless otherwise agreed, [X] is to continue to attend [Z] School until he relocates in accordance with this Order, and thereafter he is to attend a school that his parents agree to.
The Children live with the Mother.
The Children spend time with the Father as follows:
(a)Until the Mother has complied with Order 2 above, the Father to spend time with the Children each alternate weekend from 5.00pm Friday to 5.00pm Sunday (or Monday if a long weekend or a day when Children are not required to attend school) with changeover to occur at McDonalds at [S], unless otherwise agreed by the parties. The Father may elect to spend additional time with [Y] concluding immediately after the end of school for [X] provided he gives the Mother at least 72 hours notice of this by text message, and provided he returns [Y] to [X]’s school.
(b)Once the Mother has complied with Order 2, and commencing immediately until [Y]’s 5th birthday:
(i) From the end of pre-school/school on Friday to immediately prior to the commencement of pre-school/school on Monday each alternate weekend, with the Father to collect and deliver the Children to and from preschool/school; and
(ii) One overnight in the other week as…
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- AGLC
- Silas & Barry [2009] FMCAfam 448
- Case
- [2009] FMCAfam 448
- Decision Date
CaseChat Overview and Summary
The legal issues before the court encompassed the establishment of a framework for the parents to share equal parental responsibility, the setting of a specific geographical boundary for the children's residence, the creation of a visitation schedule that balanced the children's educational continuity with their time with the father, and the imposition of conditions to safeguard the children's well-being and the parents' ability to co-parent effectively. Additionally, the court had to consider the necessity for the father to undergo an anger management program and for both parents to participate in family dispute resolution.
The court reasoned that the children's best interests were paramount, necessitating a detailed and structured parenting plan. It found that the parents should share equal parental responsibility and that the children should reside with their mother, with the father having a prescribed visitation schedule. The court mandated specific conditions for the changeover of the children, communication between the parents, and the notification of holidays and changes in residence. Furthermore, the court ordered the father to undergo an anger management program and both parents to engage in family dispute resolution before seeking any variation of the orders.
The final orders of the court established equal parental responsibility for the children, set a 25 kilometre radius for the children's residence and schooling, outlined a detailed visitation schedule for the father, and included numerous conditions to ensure the children's welfare and the parents' cooperation in co-parenting. The court also mandated the father's participation in an anger management program and required both parents to engage in family dispute resolution before seeking any changes to the orders.
Orders
Orders of the court
1.
The parents have equal parental responsibility for the Children [X] born in 2004 and [Y] born in 2007 (“the Children”).
2.
No later than the commencement of school term 3 2009, the Mother to do all things necessary to return the Children to live within a
25 kilometre radius of the [E] Post Office and thereafter to enrol the Children in a school/preschool within a 25 kilometre radius of the [E] Post Office.
3.
Unless otherwise agreed, [X] is to continue to attend [Z] School until he relocates in accordance with this Order, and thereafter he is to attend a school that his parents agree to.
4.
The Children live with the Mother.
5.
The Children spend time with the Father as follows:
(a) Until the Mother has complied with Order 2 above, the Father to spend time with the Children each alternate weekend from 5.00pm Friday to 5.00pm Sunday (or Monday if a long weekend or a day when Children are not required to attend school) with changeover to occur at McDonalds at [S], unless otherwise agreed by the parties. The Father may elect to spend additional time with [Y] concluding immediately after the end of school for [X] provided he gives the Mother at least 72 hours notice of this by text message, and provided he returns [Y] to [X]’s school.
(b) Once the Mother has complied with Order 2, and commencing immediately until [Y]’s 5th birthday:
(i) From the end of pre-school/school on Friday to immediately prior to the commencement of pre-school/school on Monday each alternate weekend, with the Father to collect and deliver the Children to and from preschool/school; and
(ii) One overnight in the other week as agreed between the parties, but failing agreement from the end of pre-school/school on Monday to immediately prior to the commencement of pre-school/school on Tuesday with the Father to collect and deliver the Children to and from preschool/school; and
(iii) For half of each two-week school holiday period as agreed between the parents, but failing agreement, for the first half in odd numbered years and the second half in even numbered years; and
(iv) For two weeks of each Christmas school holiday period as agreed between the parents, but failing agreement for the first two weeks in odd numbered years and the last two weeks in even numbered years.
(c) Thereafter, commencing on [Y]’s 5th birthday:
(i) From the end of pre-school/school on Thursday to immediately prior to the commencement of pre-school/school on Monday each alternate weekend with the Father to collect and deliver the Children to and from preschool/school; and
(ii) One overnight in the other week as agreed between the parties, but failing agreement from the end of pre-school/school on Monday to immediately prior to the commencement of pre-school/school on Tuesday with the Father to collect and deliver the Children to and from preschool/school; and
(iii) For half of all school holidays as agreed between the parents, but failing agreement for the first half in odd-numbered years and the second half in even-numbered years.
(d) From 4.00pm Christmas Day until 4.00pm on Boxing Day commencing 2009 and each alternate year thereafter; and
(e) From 4.00pm on Christmas Eve until 4.00pm on Christmas Day commencing 2010 and each alternate year thereafter;
(f) Each Father’s Day from 9.00am to 5.00pm if the Children are not otherwise with the Father.
(g) At all other times as agreed between the parties.
6.
On each of the Children’s birthdays, the Children are to spend time with the parent they are not residing with from 4.00pm to 6.00pm on a school day, or 3.00pm to 6.00pm on a non-school day.
7.
The Father’s time with the Children is to be suspended from 9.00am to 5.00pm on Mother’s Day and the Mother’s time is suspended from 9.00am to 5.00pm on Father’s Day.
8.
Orders for the Father to spend time with the Children during school term are suspended during school holidays and recommence thereafter on the first weekend after the resumption of school holidays as per the cycle that existed immediately prior to the holidays in question.
9.
Unless the Children are being collected from and returned to their school and/pr pre-school, and unless the parents otherwise agree, changeover is to occur at McDonalds at [S].
10.
Both parties have liberty to communicate with the Children by telephone at all reasonable times, such time to be not later than 7.00pm.
11.
Both parties be at liberty to forward letters, emails, mail and other items and any items to the Children with the items to be given to the Children unopened.
12.
In respect of [Y], the Mother be restrained from using as his middle name “[full name omitted]” in place of “[shortened form omitted]” to the intent that [Y] be known as [Y].
13.
The parents provide to each other notice of their intention to take the Children on holidays at least one (1) month prior to departure, and provide the other party with contact details and, if applicable, a detailed itinerary at least ten (10) days prior to departure.
14.
The parents inform each other about any change in residence or phone number seven (7) days prior to any such change.
15.
The Mother do all acts and things necessary to authorise the Children’s pre-school/school to provide copies of all reports, newsletters and other documents pertaining to the Children’s schooling.
16.
The parents notify each other as soon as reasonably practicable of any medical issue involving the Children whilst in their respective care wherein either of the Children are required to attend a hospital or a medical practice and should the Children be prescribed medication, it is the responsibility of that party to obtain such medication which is to be provided to the other party at changeover.
17.
If at any time either party is unable to care for the Children due to work, illness or other commitments, the other party is to be consulted at the earliest occasion and provided with the first opportunity to care for the Children before any other person/persons are consulted.
18.
Parties are hereby restrained from:
(a) Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the Children’s hearing.
(b) Discussing any proceedings between the parents in the presence or hearing of the Children or permitting any other person to do so.
19.
The Father must within 14 days contact Relationships Australia on (02) 8874 8010 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment as to suitability for an anger management program.
20.
In making his appointment, the Father is to state that his attendance is pursuant to an Order of the Federal Magistrates Court.
21.
The Father is to cooperate with providing intake information and details to Relationships Australia and must attend the intake appointment at any reasonable location nominated by Relationships Australia and complete the assessment.
22.
If assessed as suitable the Father must attend (as the provider directs) as soon as practicable.
23.
The Father shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.
24.
Relationships Australia is to notify the Court within 21 days whether the Father has contacted them and made arrangements for the intake assessment appointment.
25.
The parties must within 14 days contact Relationships Australia on (02) 8874 8010 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.
26.
In making their appointment, parties are to state that their attendance is pursuant to an Order of the Federal Magistrates Court.
27.
Parties are to cooperate with providing intake information and details to Relationships Australia and must attend the intake appointment at any reasonable location nominated by Relationships Australia and complete the assessment.
28.
If assessed as suitable and Relationships Australia nominates counselling, mediation including child inclusive mediation or a post-separation parenting course to attend, the parties must attend (as the provider directs) as soon as practicable.
29.
The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.
30.
Parties have leave to provide a copy of the Family Report in these proceedings to Relationships Australia.
31.
Relationships Australia is to notify the Court within 21 days whether each party has contacted them and made arrangements for the intake assessment appointment.
32.
That in the event the parents cannot reach a joint decisions about:-
(a) a major long-term issue involving the Child; or
(b) the interpretation of these Orders; or
(c) the implementation of these Orders; or
(d) the enforcement of these Orders; which involve the child,
each of the parents will do all things necessary to participate in Family Dispute Resolution at an Organisation recognised under the Family Law Act.
33.
That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the Children or of the parties, each of the parents is to take the following steps:-
(a) The Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act; and
(b) The Father and the Mother shall each participate in Family Dispute Resolution with an Organisation recognised under the Family Law Act.
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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