FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SIMM & FOREST and ANDERSON | [2009] FMCAfam 369 |
| FAMILY LAW – Parenting – competing applications by mother, father and paternal grandmother for the children to live with them – allegations of violence and drug use – long history of litigation – toxic relationship between mother and paternal grandmother – consideration of the importance of the paternal grandmother to the children’s educational and psychological needs – sustainability of the orders. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61C, 61DA, 64B & 65DAC |
| Church & Overton and Anor [2008] FamCA 965 R and R; Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MS SIMM |
| First Respondent: | MS FOREST |
| Second Respondent: | MR ANDERSON |
| File Number: | SYC 8196 of 2007 |
| Judgment of: | Sexton FM |
| Hearing dates: | 9, 10 & 11 March, 2 & 3 April 2009 |
| Date of Last Submission: | 3 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2009 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Counsel for the First Respondent: | Mr A. Ladopoulos |
| Solicitors for the First Respondent: | Ktenas Solicitors |
| Counsel for the Second Respondent: | Mr W. Moss |
| Solicitors for the Second Respondent: | Batey’s Family Lawyers |
| Counsel for the Independent Children’s Lawyer | Ms E. Lawson |
| Solicitors for the Independent Children’s Lawyer | Redleaf Family Lawyers |
ORDERS
All previous parenting orders in relation to [X] born in 1995 and [Y] born in 1997 be discharged.
In relation to [X]
The mother and father have equal shared parental responsibility for [X].
[X] live with the mother.
[X] communicate and spend time with the father as [X] wishes and the mother be restrained from interfering in any communication or contact that [X] may have with the father.
[X] spend time with the paternal grandmother as [X] wishes.
[X] communicate and spend time with the paternal grandmother as [X] wishes and the mother be restrained from interfering in any communication or contact that [X] may have with the paternal grandmother.
The paternal grandmother be at liberty to send a letter/email/text message to [X] every 3 months on condition she does not require a response from [X], and the mother be restrained from interfering with any such communication.
The father be at liberty to contact [X]’s school regarding her progress and welfare and receive all notes, circulars, newsletters and reports issued by [X]’s school from time to time.
In relation to [Y]
The mother and father have equal shared parental responsibility for [Y] except in relation to decisions concerning his schooling and school related activities.
The paternal grandmother and the father have equal shared responsibility for decisions concerning [Y]’s schooling and school related activities.
[Y] live with each party as follows:
(a)With the paternal grandmother:
i)From Monday after school (or 4.00p.m. Monday if a Public Holiday) until Thursday before school (or Friday before school in any week in which [Y] has an examination on…
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- Case
- [2009] FMCAfam 369
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the interpretation of "equal shared parental responsibility" as per section 60CC(2)(a) of the Family Law Act 1975, the determination of what constitutes the "best interests" of the children under section 60CC(2)(a), and the appropriate living arrangements that would allow the children to maintain meaningful relationships with both parents and the paternal grandmother. Additionally, the court had to address the implications of any potential family violence and the necessity for the children to have stability and continuity in their education and social lives.
The court, in its detailed and comprehensive judgment, concluded that the children's best interests were served by a highly structured and specific arrangement that allowed for both parents and the paternal grandmother to play significant roles in the children's lives. The court discharged all previous parenting orders and established new orders that allocated equal shared parental responsibility to the parents, with specific provisions for the paternal grandmother concerning the children's schooling and other activities. The court also provided detailed schedules for the children's time with each parent and the paternal grandmother, including specific times for holidays, weekends, and special occasions. Furthermore, the court outlined clear communication and contact protocols to ensure that the children could maintain relationships with all parties involved, while protecting them from potential interference or conflict.
In summary, the court issued a series of detailed orders that provided a balanced and structured approach to parenting the children, aiming to meet their emotional, educational, and social needs. The orders reflect the court's consideration of the children's wishes, the parents' and grandmother's roles, and the necessity for stability and continuity in the children's lives.
Orders
Orders of the court
1.
All previous parenting orders in relation to [X] born in 1995 and [Y] born in 1997 be discharged.
In relation to [X]
2.
The mother and father have equal shared parental responsibility for [X].
3.
[X] live with the mother.
4.
[X] communicate and spend time with the father as [X] wishes and the mother be restrained from interfering in any communication or contact that [X] may have with the father.
5.
[X] spend time with the paternal grandmother as [X] wishes.
6.
[X] communicate and spend time with the paternal grandmother as [X] wishes and the mother be restrained from interfering in any communication or contact that [X] may have with the paternal grandmother.
7.
The paternal grandmother be at liberty to send a letter/email/text message to [X] every 3 months on condition she does not require a response from [X], and the mother be restrained from interfering with any such communication.
8.
The father be at liberty to contact [X]’s school regarding her progress and welfare and receive all notes, circulars, newsletters and reports issued by [X]’s school from time to time.
In relation to [Y]
9.
The mother and father have equal shared parental responsibility for [Y] except in relation to decisions concerning his schooling and school related activities.
10.
The paternal grandmother and the father have equal shared responsibility for decisions concerning [Y]’s schooling and school related activities.
11.
[Y] live with each party as follows:
(a) With the paternal grandmother:
i) From Monday after school (or 4.00p.m. Monday if a Public Holiday) until Thursday before school (or Friday before school in any week in which [Y] has an examination on that Friday) each week of school term, commencing on the first Monday after these Orders are made; and
ii) From 2 p.m. on the day before school commences at the commencement of Terms 2, 3 and 4, and from 2 p.m. on the second last day before school commences at the commencement of a school year.
(b) With each of the father and the mother:
i) In each alternate week from after school Thursday until before school Monday (or 4.00p.m. Monday if a Public Holiday) or from Friday after school if [Y] has an examination on the Friday of that week, such time to commence with the father on the first weekend after these orders are made;
ii) Subject to Order (11)(a)(ii), for half the Christmas school holidays, being the first half with the father in 2009 and alternate years ending in an odd number, and being the second half with the father in 2010 and alternate years ending in an even number.;
iii) For half of each term 1, 2 and 3 school holiday period ending at 2 p.m. on the last full day before the school term commences, being the first half with the father in 2009 and alternate years ending in an odd number, and being the second half with the father in 2010 and alternate years ending in an even number.
12.
[Y] spend additional time with each parent as follows:
(a) At Christmas, as agreed between the mother and father, but failing agreement:
(i) [Y] spend time with the father from 5.00p.m. on Christmas Eve until 1.00p.m. on Christmas Day in 2009 and every odd numbered year thereafter and from 1.00p.m. on Christmas Day until 5.00p.m. on Boxing Day in 2010 and every even numbered year thereafter;
(ii) [Y] spend time with the mother from 1.00p.m. Christmas Day until 5.00p.m. on Boxing Day in 2009 and every odd numbered year thereafter and from 5.00p.m. on Christmas Eve until 1.00p.m. on Christmas Day in 2010 and every even numbered year thereafter.
(b) [Y] spend the Mother’s Day weekend with the mother from 6.00p.m. on the evening before Mother’s Day until before school on Monday, and with the father from 6.00p.m. on the evening before Father’s Day until before school on Monday, whatever any other order provides.
13.
Changeovers during the school week to occur to and from school.
14.
Changeovers between the two parents occur as arranged between the parents.
15.
Changeovers between the paternal grandmother and each parent, when [Y] is not at school, occur outside the home of the father and the mother be restrained from attending those changeovers.
16.
The paternal grandmother collect and deliver [Y] to school on days he is living with her and each parent be restrained from attending [Y]’s school at those times.
17.
[Y] be at liberty to telephone the mother at any time when with the father or the paternal grandmother and to be given privacy for that purpose.
18.
[Y] be at liberty to telephone the father at any time when with the mother or the paternal grandmother and be given privacy for that purpose.
19.
[Y] be at liberty to telephone the paternal grandmother at any time when with the father or with the mother, and be given privacy for that purpose.
20.
The mother be restrained from interfering with any arrangements made by the father with the paternal grandmother for the care of [Y] when [Y] is living with the father.
21.
The paternal grandmother be permitted to telephone [Y] on his birthday and on Christmas Day whether [Y] is living with his mother or his father on those days, and each parent ensure [Y] speaks to his grandmother on those days.
22.
The mother and father be permitted to telephone [Y] on his birthday if living with the other parent or with the paternal grandmother.
23.
Each party ensure [Y] attends all his sporting and extra-curricular activities when [Y] is living with that party, including matches and practices.
24.
Each party be at liberty to attend all school functions and sporting activities in which [Y] participates irrespective of whether those events and sporting activities fall on the days in which [Y] normally spends time with that party.
25.
Each party communicate all information to the other parties concerning [Y]’s school functions and extracurricular activities, such communication to occur by telephone or email.
26.
The mother and the father and the paternal grandmother be at liberty to contact [Y]’s school regarding his progress and welfare and receive all notes, circulars, newsletters and reports issued by [Y]’s school from time to time.
27.
The paternal grandmother and the mother be restrained from approaching the other or attempting communication with the other if attending the same event for [Y].
28.
To the extent these orders are inconsistent with any family violence order, these orders prevail.
29.
All parties be restrained from denigrating any party in the presence and/or hearing of the children, and take all reasonable steps to ensure that no other person denigrates any of the parties in the presence and/or hearing of the children.
30.
Each party keep the other parties informed of their respective residential address, residential telephone number and mobile telephone number and to advise the other party within 48 hours of any change of address or telephone number.
31.
[Y] complete his primary school education at [L] School, and undertake his high school education at [E] School if selected for that school, or otherwise at [G] School, unless otherwise agreed by the paternal grandmother and the father in consultation with [Y].
32.
Each party notify the other parties as soon as practicable of any serious illness, injury or medical emergency in respect of the children.
33.
The paternal grandmother forthwith arrange to attend counselling at a Family Relationships Centre or at Relationships Australia, Centacare, Unifam or Interrelate to address ways to support [Y]’s adjustment to these arrangements, and to continue with such counselling as recommended by the Agency.
34.
The paternal grandmother arrange confidential counselling for [Y] outside school within 4 weeks of the date of these Orders to assist him to adjust to the changes in his living arrangements, and [Y] to continue in counselling at a frequency recommended by his counsellor.
35.
The paternal grandmother provide a sealed copy of these Orders and Reasons to her counsellor and to [Y]’s counsellor.
36.
The Independent Children’s Lawyer provide a sealed copy of these Orders to the Principal of [Y]’s current school with a request that the Orders be on-forwarded to the Principal of [Y]’s school at the commencement of 2010.
37.
The appointment of the Independent Children’s Lawyer continue for a period of 2 calendar months to ensure these orders are implemented and in particular to provide recommendations to the paternal grandmother as to appropriate counsellors if necessary.
38.
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 set out in Annexure A and these particulars are included in these orders.
39.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
40.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
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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