FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Stabile & Petrauskiene [2024] FedCFamC2F 1790
File number(s): NCC 3228 of 2021 Judgment of: JUDGE CARTY Date of judgment: 16 December 2024 Catchwords: FAMILY LAW – PARENTING – Applicant father seeks a final order that the three children spend equal time with each parent – Respondent mother opposes order for equal time and seeks an order that the children continue to live with her and spend time with the father – Parties agree that there will be an order that the parents have equal shared parental responsibility for the children – Consideration of whether it is in the best interests of the children and reasonably practicable for the children to spend equal time with each parent – Consideration of whether it is in the best interests of the children and reasonably practicable for the children to spend substantial and significant time with each of the parents – HELD that it is in the best interests of the children to live with the mother – HELD that it is in the best interests of the children and reasonably practicable to spend substantial and significant time with the father Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 68, Pt VII Cases cited: Goode and Goode (2006) 36 FamLR 422
Mazorski & Albright (2007) 37 Fam LR 518
Division: Division 2 Family Law Number of paragraphs: 198 Date of last submission/s: 24 January 2024 Date of hearing: 1 September 2023, 23 & 24 January 2024 Counsel for the Applicant: Mr Bithrey Solicitor for the Applicant: Berryman Partners Counsel for the Respondent: Ms Bateman Solicitor for the Respondent: Tee Legal Counsel for the Independent Children's Lawyer: Mr Taylor Solicitor for the Independent Children's Lawyer: Fielden & Associates ORDERS
NCC 3228 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR STABILE
Applicant
AND: MS PETRAUSKIENE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE CARTY
DATE OF ORDER:
16 DECEMBER 2024
THE COURT ORDERS ON A FINAL BASIS BY CONSENT THAT:
1.The parents have equal shared parental responsibility for the children X born in 2013, Y born in 2015 and Z born in 2018 (“the children”).
2.Changeovers will be as agreed in writing between the parents, and failing agreement:
(a)Where a changeover is due to occur at school or pre-school, by the parent who is due to have the care of the children collecting the children from school and the parent who has the care of the children ensuring that the children are at school to be collected by the other parent; and
(b)Where a changeover is not due to occur at school or pre-school, then changeover will occur at Suburb B McDonalds.
3.The children will communicate with each parent between 5.00pm and 6.00pm on any Wednesday or Sunday that the children are not already in the care of that parent, with the communicating parent to…
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- Stabile & Petrauskiene [2024] FedCFamC2F 1790
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- [2024] FedCFamC2F 1790
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CaseChat Overview and Summary
The legal issues before the court were whether it was in the best interests of the children, and reasonably practicable, for the children to spend equal time with each parent and whether it was in the best interests of the children, and reasonably practicable, for the children to spend substantial and significant time with each of the parents.
The court considered the best interests of the children to be the paramount consideration in making its decision. The court held that it was in the best interests of the children to live with the mother and that it was in the best interests of the children and reasonably practicable to spend substantial and significant time with the father.
The final orders included equal shared parental responsibility for the children, specific arrangements for changeovers and communication between the parents, restrictions on physical discipline and derogatory comments, travel arrangements for the children, and procedures for the children's primary healthcare and education. The court also ordered that the father would pay his share of the Independent Children's Lawyer's costs within 12 months of the date of the order.
Orders
Orders of the court
NCC 3228 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR STABILE
Applicant
AND:
MS PETRAUSKIENE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE CARTY
DATE OF ORDER:
16 DECEMBER 2024
THE COURT ORDERS ON A FINAL BASIS BY CONSENT THAT:
1. The parents have equal shared parental responsibility for the children X born in 2013, Y born in 2015 and Z born in 2018 (“the children”).
2. Changeovers will be as agreed in writing between the parents, and failing agreement:
(a) Where a changeover is due to occur at school or pre-school, by the parent who is due to have the care of the children collecting the children from school and the parent who has the care of the children ensuring that the children are at school to be collected by the other parent; and
(b) Where a changeover is not due to occur at school or pre-school, then changeover will occur at Suburb B McDonalds.
3. The children will communicate with each parent between 5.00pm and 6.00pm on any Wednesday or Sunday that the children are not already in the care of that parent, with the communicating parent to call the other parent’s mobile phone to initiate the call and the facilitating parent to ensure that their mobile phone is switched on and charged and that the children are ready to receive the communicating parent’s call.
4. Pursuant to section 68B of the Family Law Act 1975 (Cth) the parents are each hereby restrained by way of injunction from:
(a) Physically disciplining the children or any of them and from allowing any other person to physically discipline the children or any of them.
(b) Directing or allowing any other person to direct the children or any of them, to physically discipline or punish themselves.
(c) Denigrating or bad-mouthing the other parent, their partner or any member of the children’s extended family in either household in the presence of or within hearing of the children.
5. Each parent is at liberty to travel internationally with the children X (born in 2023), Y (born in 2015) and Z (born in 2018) (“the children”) during any time that they would ordinarily be spending with the children provided that the Department of Foreign Affairs and Trade does not advise against travel to such destination and provided that the Commonwealth of Australia maintains a High Commission or Embassy in such Country.
6. Should either parent propose to travel outside the Commonwealth of Australia with the children then they will, at least sixty (60) days prior to the intended departure date, write to the other parent and provide the following details:
(a) Proposed departure and return dates.
(b) Flight details, including airline(s), and a copy of forward and return flight details.
(c) An itinerary of where the children will be staying and name(s) of any other person(s) attending.
(d) Contact details for all accommodation.
(e) Proof of travel insurance with medical and medivac cover for the children.
(f) If the proposed travel occurs during time that the children would ordinarily live or spend time with the non-travelling parent then the travelling parent will propose make-up time to be agreed between the parents prior to any travel taking place.
7. The mother and the father will do all acts and sign all documents required for each of the children to be issued with an Australian travel document (including a Passport) or for such travel document to be renewed, within fourteen (14) days of a written request by the other parent and the travel document for each child will be held in safe custody by the mother.
8. The mother will release each child’s travel document to the father within twenty-one (21) days of a written request by the father, and the father will return each travel document to the mother within fourteen (14) days of returning to the Commonwealth of Australia.
THE COURT FURTHER ORDERS ON A FINAL BASIS THAT:
9. The children live with the mother.
10. The children will spend time with the father at all such times as agreed in writing between the parents and failing agreement:
(a) Until the commencement of Term 3 in 2025, during each school term, each alternate week from after school or 3.00pm on Thursday until the start of school or 9.00am on the following Monday commencing on the first Thursday after the children return to school at the start of the new school term and each alternate week thereafter.
(b) From the commencement of Term 3 2025 and during each school term, each alternate week from after school or 3.00pm on Thursday until the start of school or 9.00am on the following Tuesday; and
(c) The time in Order 10(b) hereto will commence on the first Thursday of each new school term in even numbered years and on the second Thursday of each new school term in odd numbered years,
(d) During the terms 1, 2 and 3 school holiday period as follows:
(i) For the first half of the school holiday period in even-numbered years, commencing from after school on the last Thursday of the school term until 3.00pm on the second Saturday of the school holiday period: and
(ii) For the second half of the school holiday period in odd-numbered years from 3.00pm on the second Saturday of the school holiday period until 9.00am or the start of school on the first day of the new school term.
(e) During the term 4 school holiday period which commences in 2024 on an alternate weekly basis as follows:
(i) From after school or 3.00pm on 20 December 2024 until 4.00pm on 27 December 2024;
(ii) From 4.00pm on 3 January 2025 until 4.00pm on 10 January 2025; and
(iii) From 4.00pm on 17 January 2025 until 4.00pm on 24 January 2025.
(f) During the term 4 school holiday period commencing in 2025 and each year thereafter, for one half the school holiday period as follows:
(i) In odd numbered years, commencing at 3.00pm on the day that falls at the mid-point of the school holidays, and if there is an odd number of days in the school holiday period then the children will spend the additional day in the care of the father, until the date that falls two clear days before any of the children are required to attend school for the first day of the new school term.
(ii) In even numbered years, commencing from after school on the last day that pupils are required to attend school until 3.00pm on the day that falls at the mid-point of the school holiday period, and if there is an odd number of days in the school holiday period then the children will spend the additional day in the care of the Father.
(g) On the following special occasions:
(i) On each child’s birthday, if the children are not otherwise due to spend time with the father that day, from after school or 3.00pm until 7.00pm.
(ii) If the children are not otherwise in the care of the father on the Father’s Day weekend, from 3.00pm Saturday until 3.00pm on Father’s Day.
(iii) On Christmas Day in even-numbered years from 3:00pm on Christmas Eve until 3:00pm on Christmas Day.
(iv) On Christmas Day in odd-numbered years from 3:00pm on Christmas Day until 3:00pm on Boxing Day.
11. The children’s time with the father is suspended on the following special occasions and the children will live with the mother:
(a) On each child’s birthday, if the children are not otherwise due to live with the mother on such birthday, from after school or 3.00pm until 7.00pm.
(b) If the children are not otherwise in the care of the mother on the Mother’s Day weekend, from 3.00pm Saturday until 3.00pm on Mother’s Day.
(c) On Christmas Day in even-numbered years from 3:00pm on Christmas Day until 3:00pm on Boxing Day.
(d) On Christmas Day in odd-numbered years from 3:00pm on Christmas Eve until 3:00pm on Christmas Day.
12. Each parent will notify the other parent as soon as reasonably practicable in the event of any of the following happening:
(a) The attendance of the NSW Ambulance Service, NSW Police or NSW Department of Communities and Justice in relation to the children or any member of the parent’s household.
(b) Any of the children being required to attend an Emergency Department for triage or treatment.
(c) Any of the children being prescribed medication which they are required to consume whilst in the other parent’s care.
(d) Any of the children being diagnosed with a serious health condition or being involved in a serious adverse health event that requires their attendance on a healthcare practitioner for multiple appointments.
(e) An appointment being made for any of the children with a clinical specialist, and in such event the parent making the appointment will immediately provide the details of the appointment and the name and contact details of the specialist to the other parent.
(f) An appointment being made with a NDIS organisation to negotiate a NDIS plan for any of the children.
13. These Orders are sufficient authority for each parent to obtain, at their own expense, information about each child’s health, healthcare, diagnoses, treatment, NDIS file and therapeutic interventions, from any healthcare practitioner, allied healthcare practitioner or NDIS provider upon whom the child attends.
14. Unless otherwise agreed in writing between the parents, the children's primary health care provider will be C Clinic, and each parent must ensure that as far as reasonably practicable the children’s primary healthcare is provided by C Clinic, and in the event one of the children is required to attend upon another medical practice or General Practitioner, then the presenting parent must request that the records of such attendance are forwarded to the child’s primary healthcare provider.
15. These Orders are sufficient authority for each parent to obtain, at their own expense, information which is available from any school or educator pertaining to each child including school reports, school photos and Learning Support Plans.
16. These Orders are sufficient authority for each parent to attend any educational or extracurricular activity and event to which parents and members of the community are normally invited.
17. Unless the parents reach agreement as to the use of a co-parenting app, the parents will use text message or email to communicate with the other parent about parenting matters and each parent must ensure that their communication with the other parent is respectful and child focused.
18. Each parent must keep the other parent promptly informed about any change to their mobile phone number or email address.
19. Each parent is at liberty to travel intrastate and interstate with the children during any period that the children are ordinarily living with or spending time with that parent.
AND BY CONSENT THE COURT FURTHER ORDERS THAT:
20. Within 12 months of the date of these Orders, the applicant father will pay the sum of $6,507.50 being his share of the costs of the Independent Children’s Lawyer with such costs to be paid directly to the Legal Aid NSW and any queries, proposed payment plans or payment arrangements may be directed to Legal Aid NSW.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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