FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SIMONS & BARNES (No.2) | [2010] FMCAfam 1094 |
| FAMILY LAW – Children – high conflict – children’s Aboriginality – mother unwilling to support child’s relationship with father – parenting capacity – relocation. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61C, 61DA, 64D, 65DAA, 65DAC Federal Magistrate Court Rules 2001, Rule 15.09 |
| Barnes & Simons [2009] FMCAfam 185 Human Rights and Equal Opportunities Commission, ‘Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families”, Commonwealth of Australia 1997 Scutt, J. A., “Even In the Best Of Homes: Violence In The Family”, McCulloch Publishing Pty Ltd., Melbourne, 1990 |
| Applicant: | MS SIMONS |
| Respondent: | MR BARNES |
| File Number: | ADC 2873 of 2008 |
| Judgment of: | Kelly FM |
| Hearing dates: | 8, 9, 10 & 11 June 2010 |
| Date of Last Submission: | 2 July 2010 |
| Delivered at: | [M] |
| Delivered on: | 7 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Milen |
| Solicitors for the Applicant: | JoAnne Milen & Associates |
| Counsel for the Respondent: | Ms D Weiner |
| Solicitors for the Respondent: | O'Keeffe Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr I Charman |
| Solicitors for the Independent Children’s Lawyer: | Ian Charman & Associates |
ORDERS
The father’s application for parenting orders with respect to the child [X] born [in] 2003 is dismissed.
The mother have sole parental responsibility for long term decisions with respect to the care, welfare and development of the child [Y] born [in] 2007.
Each party retain parental responsibility for [Y]’s day to day care, welfare and development whilst [Y] is in that parent’s care.
[Y] live with the mother.
The mother is permitted to relocate [Y]’s primary place of residence to [W] as and from 15 January 2011.
Pending the relocation to [W], [Y] shall spend time with the…
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- AGLC
- Simons and Barnes (No.2) [2010] FMCAfam 1094
- Case
- [2010] FMCAfam 1094
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were the allocation of parental responsibility for the children and the establishment of a visitation schedule for the father. The court had to balance the welfare and best interests of the children against the wishes and capabilities of the parents. It needed to decide whether the father should have any parenting orders, the extent of parental responsibility each parent should have, and the specifics of a visitation schedule that would facilitate the father's involvement in the children's lives.
The court found that the father's application for parenting orders concerning the child born in 2003 was dismissed as the child was considered to be of an age and maturity where such orders were unnecessary. Regarding the child born in 2007, the court awarded sole parental responsibility for long-term decisions to the mother while both parents retained responsibility for day-to-day care. The court also detailed a comprehensive visitation schedule for the father, taking into account school terms, holidays, and special occasions. The court mandated that the child live primarily with the mother but outlined specific times for the father to spend with the child, including during school terms, holidays, and on special days. In addition, the court required both parents to undertake personal counselling and a parenting course to improve their interpersonal skills and understanding of the child's needs. The court also imposed restrictions on communication between the parents and mandated that they register with Children’s Contact Centres and comply with their directions.
The final orders included provisions for the father’s visitation rights, the children's living arrangements, restrictions on parental conduct, and mandates for personal development and communication between the parents. This detailed schedule and set of conditions aimed to ensure the children's welfare while facilitating their relationship with both parents.
Orders
Orders of the court
1.
The father’s application for parenting orders with respect to the child [X] born [in] 2003 is dismissed.
2.
The mother have sole parental responsibility for long term decisions with respect to the care, welfare and development of the child [Y] born [in] 2007.
3.
Each party retain parental responsibility for [Y]’s day to day care, welfare and development whilst [Y] is in that parent’s care.
4.
[Y] live with the mother.
5.
The mother is permitted to relocate [Y]’s primary place of residence to [W] as and from 15 January 2011.
6.
Pending the relocation to [W], [Y] shall spend time with the father as follows:
(a) from 9.30am Sunday until 4.30pm Monday each week commencing Sunday 10 October 2010; and
(b) from 9.30am Wednesday until 9.30am Thursday of each week commencing Wednesday 13 October 2010.
7.
Upon [Y] relocating to [W] he shall spend time with the father as follows:
(a) commencing on the second weekend thereafter on each alternate weekend from 4.30 pm Friday afternoon until 4.30 pm Sunday (or Monday afternoon in the event of a public holiday) or at such other times as may be nominated through the relevant Children’s Contact Centre;
(b) upon [Y] commencing school, for one half of each short school holiday period from 12.00noon on the first Saturday until 4.00pm on the Saturday one week following;
(c) for one half of the Christmas school holidays to take place on a week about basis until [Y] has attained the age of 8 years and thereafter as follows:
(i) for the first three weeks in the school holidays commencing in December 2015 and each alternate year thereafter; and
(ii) for the last three weeks in the school holidays commencing in December 2016 and each alternate year thereafter;
(d) in the event Father’s Day falls on a weekend when [Y] would otherwise be in the mother’s care then [Y] shall spend that weekend in the father’s care in lieu of the time he would otherwise have spent in the father’s care on the next weekend which visit is otherwise suspended;
(e) in the event Mother’s Day falls on a weekend when [Y] is in the father’s care his time in the father’s care is suspended for that weekend and shall take place between the same times on the weekend immediately following.
8.
In the event the parties are living in the same town after January 2011 then the following orders (9) – (15) will apply.
9.
[Y] shall spend time with the father as follows:
(a) each alternate weekend from 10.00am Friday until 5.30pm Sunday (or Monday in the event of a public holiday) PROVIDED THAT upon [Y] commencing school the alternate weekend visits will commence at the conclusion of school on Friday and conclude at the commencement of school on Monday (or Tuesday in the event of a public holiday);
(b) each intervening week from 9.30am (or the commencement of school) on Thursday until 9.30am (or the commencement of school) on Friday;
(c) upon [Y] commencing school, for one half of each short school holiday period from 12.00pm on the first Saturday until 4.00pm on the Saturday one week following;
(d) for one half of the Christmas school holidays to take place on a week about basis until [Y] has attained the age of 8 years and thereafter as follows:
(i) for the first three weeks in the school holidays commencing in December 2015 and each alternate year thereafter; and
(ii) for the last three weeks in the school holidays commencing in December 2016 and each alternate year thereafter;
(e) the time specified in subparagraph (a) and (b) is otherwise suspended during each school holiday period and shall resume in the same rotation in each school term.
10.
In the event that [Y] is otherwise in the mother’s care on Father’s Day then he shall spend time in the father’s care from 5.00pm on the Saturday until 4.00pm on Father’s Day.
11.
In the event [Y] is otherwise in the father’s care on the Mother’s Day weekend his time with the father will conclude at 10.00am on the Sunday.
12.
For the purposes of [Y]’s birthday each year he shall spend time with the father from 3.30pm until 6.30pm if his birthday falls on a school day and for a period of 4 hours at times to be agreed between the parties if his birthday falls on a weekend day.
13.
In the event [Y]’s birthday falls on a weekend when he is in his father’s care he shall spend time with the mother for a period of 4 hours at times to be agreed between the parties.
14.
That for the purposes of Christmas each year:
(a) [Y] spend time with the mother from 6.00pm Christmas Eve until 12.00noon Christmas Day and with the father from 12.00noon Christmas Day until 10.00am Boxing Day in 2010 and each alternate year thereafter; and
(b) [Y] spend time with the father from 6.00pm Christmas Eve until 12.00noon Christmas Day and with the mother from 12.00noon Christmas Day until 10.00am Boxing Day in 2011 and each alternate year thereafter.
15.
In the event [Y] is in the father’s care on [X]’s birthday [date omitted] then he shall spend time with the mother from 3.30pm until 6.30pm if a school day and a period of 4 hours if a weekend day at times to be agreed between the parties.
16.
While [Y] is living in [M], handovers take place through the [A] Children’s Contact Centre where possible or otherwise inside the [M] Police Station.
17.
Upon [Y] relocating to [W] handovers continue to take place in [M] until April 2011 and thereafter as follows:
(a) the father shall travel to [W] to collect [Y] at the commencement of each occasion, with handovers to take place through a Contact Centre in [W] or if such a Contact Centre is not available, inside the [W] Police Station; and
(b) the mother shall travel to [M] to collect [Y] at the conclusion of each occasion, with handovers to take place at the [A] Children’s Contact Centre or if the Contact Centre is not available, inside the [M] Police Station.
18.
The parties are restrained from:
(a) abusing, criticising or denigrating the other party in the presence of either child and from allowing any other person to do so; and
(b) abusing, criticising, harassing or denigrating the other parent at handover or at any other time;
(c) communicating with the other parent save and except for the purposes of discussing issues with respect to [Y]’s welfare or otherwise in accordance with these orders;
(d) from consuming alcohol to excess whilst either child is in their care; and
(e) from consuming or being under the influence of illegal substances whilst either child is in their care.
19.
The mother is restrained from changing the children’s place of residence from [W] without providing the father with at least 8 weeks written notice.
20.
The parties shall communicate with each other in a polite and respectful tone regarding parenting issues as follows:
(a) by establishing a communication book to exchange relevant information about [Y]’s health, welfare and development with the book to be handed over at each changeover; and
(b) by way of text message or email where appropriate.
21.
Each party provide the other with at least 7 days written notice of any change to their residential address, telephone number or email address.
22.
Each party notify the other in the event of any medical emergency relating to [Y].
23.
The mother notify the father with respect to:
(a) any kindergarten or school at which [Y] is enrolled;
(b) the name of the health service or general practitioner attending to [Y]’s health needs; and
(c) details of any specialist medical practitioners that may provide care for [Y] from time to time.
24.
Both parents are at liberty to communicate with any kindergarten or school at which [Y] may be enrolled and to receive all reports and notices that are generally made available to parents.
25.
Both parents are at liberty to communicate with any health professional providing care for [Y] and to receive copies of all written reports prepared in relation to [Y].
26.
Both parents shall register with the relevant Children’s Contact Centres within 21 days and shall comply with all reasonable directions from staff at the Centre.
27.
Both parties shall undertake personal counselling in an endeavour to develop better interpersonal skills, to reduce the impact of their hostility upon the children and to minimise the risk of the children being exposed to family violence whilst in that parent’s care.
28.
Both parents shall undertake a parenting course directed to improving their parenting skills and their understanding of [Y]’s developmental needs.
29.
The appointment of the Independent Children’s Lawyer is discharged.
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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