FEDERAL MAGISTRATES COURT OF AUSTRALIA
| T & N | [2001] FMCAfam 222 |
| FAMILY LAW, CHILDREN – Application for shared and equal residence – factual elements that indicate equal sharing of time may promote best interests of child considered – hostile relationship between the parents – parents unable to communicate – hostile parental relationship – unified approach to religion and place for school – application for equal sharing of time refused – children to live primarily with one parent and spend significant time with other parent – residence/residence order made – application for authority that child travel to Lebanon refused – no pressing reason for travel – mother’s anxiety regarding climate of international uncertainty following terrorist attack on 11 September 2001 taken into account – Family Law Act 1975 (Cth) ss 60B, 65DA(2), 65E, 68F(2) – Hague Convention on the Civil Aspects of International Child Abduction. |
B and B: Family Law Reform Act (1997) FLC 92-755 followed
R and R: Children's Wishes (2000) FLC 93-000 cited
Bartholomew v Kelly [2001] (Unreported, Full Court of the Family Court
of Australia, Finn, Coleman and O’Ryan JJ, 14 August 2001) discussed
A and A: Relocation Approach (2000) FLC 93-035 cited
Forck and Thomas (1993) 16 Fam LR 516 discussed
H and H (1995) FLC 92-599 discussed
Halfiger and Halfiger-Knoll (1990) 13 Fam LR 786 discussed
Pagden and Pagden (1991) FLC 92-231 discussed
A v A (Minors) (Shared Residence Order) [1994] 1 FLR discussed
B (Minors) [1997] EWCA Civ 2418 (6th October 1997) discussed
Re: H (Child) [1999] EWCA Civ 1376 (10th May, 1999) discussed
D v D (Shared Residence Order) [2001] 1 FLR 495 discussed
Hamlyn v. Hamlyn (1999), 50 R.F.L. (4th) 398 (Nfld. U.F.C.) discussed
Smith v. Gale (1999), 49 R.F.L. (4th) 400 (Nfld. U.F.C.) discussed
Puddicombe v. Puddicombe 2000 A.C.W.S.J. LEXIS 54138 cited
Penner v. Penner (1999), 44 R.F.L. (4th) 294 (Man. Q.B.) discussed
Ness v. Ness (1999), 43 R.F.L. (4th) 363 (B.C. C.A.) discussed
Tacit v. Drost (1998), 43 R.F.L. (4th) 242 (Ont. Gen. Div.) discussed
MacDonald v. MacDonald 2001 A.C.W.S.J. LEXIS 1164 discussed
Robinson v. Filyk (1996), 28 B.C.L.R. (3d) 21 (C.A.) cited
Larden v. Larden 2001 A.C.W.S.J LEXIS 2896 cited
Gordon v. Goertz, [1996] 2 S.C.R. 27 cited
Reimer v. Appa 2001 Ont. Sup. C.J. LEXIS 664 discussed
Young v. Young [1993] 4 S.C.R. 3 cited
Line and Line (1997) FLC 92-729 cited
| Applicant: | J T |
| Respondent: | F N |
| File No: | ZP3421 of 2001 |
| Delivered on: | 30 November 2001 |
| Delivered at: | Parramatta |
| Hearing Date: | 4 & 8 October 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Ms W. Langley |
| The Applicant: | The Applicant instructed counsel directly [address] |
| Counsel for the Respondent: | Mr G. Foster |
| Solicitors for the Respondent: | McDonell Milne Toltz Solicitors |
ORDERS
That all existing parenting orders are discharged.
That other than as provided in these orders the children H T born
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- T & N [2001] FMCAfam 222
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- [2001] FMCAfam 222
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CaseChat Overview and Summary
The court had to address several legal issues, including the allocation of primary residence for the children, the distribution of parental responsibilities, and the detailed schedule for alternating care periods between the parents. Additionally, the court needed to establish provisions for school holidays, special occasions, and the mechanism for changing custody, ensuring that the transition between parents was smooth and the children's routine was minimally disrupted.
The court determined that the best interests of the children were served by a detailed parenting plan that allocated the primary residence to the father but provided the mother with specific periods of care. The plan included alternate weekends, school holidays, and special occasions, ensuring that both parents had significant periods of care and involvement in the children's lives. The court also outlined specific responsibilities for each parent concerning the children's day-to-day care, welfare, and development, as well as their long-term care. Furthermore, the court emphasised the importance of cooperation between the parents in notifying each other of any relevant health or welfare professionals involved with the children and restrained either party from removing the children from Australia without the other's consent.
The final orders included discharging all existing parenting orders and establishing a new schedule for the children's residence with each parent. The orders detailed specific periods for the children to live with their mother, including alternate weekends, school holidays, and special occasions, while the father would have primary residence for the rest of the time. The court also outlined the responsibilities of both parents concerning the children's care and development, the mechanisms for transitioning between parents, and the prohibition on removing the children from Australia.
Orders
Orders of the court
1.
That all existing parenting orders are discharged.
2.
That other than as provided in these orders the children H T born
2 November 1989 and A T born 13 April 1992 (“the children”) live with the father.
3.
That the mother be responsible for the day to day care, welfare and development of the children when they are in her care.
4.
That the father be responsible for the day to day care, welfare and development of the children when they are in his care.
5.
That the father and mother be jointly responsible for the long term care, welfare and development of the children.
6.
That the children live with the mother:
(a) From 5.30pm Friday until the commencement of school Monday each alternate weekend commencing 7 December 2001.
(b) From 5.30pm Monday until the commencement of school Tuesday each alternate week, commencing 17 December 2001.
(c) For the first half of the Easter, Winter & Spring school holiday period in each year ending with an odd number commencing at 9.00am on the first day of the school holiday period and concluding at 2.00pm on the middle day of the holiday period.
(d) For the second half of the Easter, Winter & Spring school holiday period in each year ending with an even number commencing at 9.00am on the middle day of the school holiday period and concluding at 2.00pm on the last day of the holiday period.
(e) For one half of each Christmas school holiday period, the first half in 2001/2002 and the second half in 2002/2003 alternating each year thereafter.
(f) On the weekend including Mother’s Day from 3.00PM on the Saturday until 5.00PM Sunday.
(g) On public holidays, adjacent to any day the children are in the mother's care. If the public holiday is a Friday the residence period shall start at the usual time on the Thursday and if it is a Monday shall conclude at the usual time on the Monday.
(h) For one half of the Islamic festival Eid Fater.
(i) For one half of the Islamic festival Eid Adhar.
(j) At other times as agreed between the parties.
7.
SCHOOL HOLIDAY RESIDENCE:
1. SHALL commence at 9.00AM
2. SHALL conclude at 2.00PM
3. WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes.
4. Pupil free days are deemed to be school holidays.
8.
Alternate weekend and alternate Monday residence is suspended during school holidays.
9.
On the weekend that includes father’s day the children shall live with the father.
10.
That for the purpose of changeover, the mother shall collect or cause a family member to collect the children from the father’s home at the commencement of her residence periods. On those occasions when the children are to attend school immediately from the mother’s care, the mother shall be responsible for ensuring that the children are delivered to school.
11.
Excluding those occasions when the children go to school directly at the end of residence periods with the mother, the father shall collect or cause someone to collect the children from the mother’s home at its end.
12.
That each of the parties be entitled to obtain directly from any school attended by any of the children or from any health or welfare professional or other professional attended by any of the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
13.
That the father and the mother, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the children H T born 2 November 1989 and A T born 13 April 1992 from the Commonwealth of Australia. It is requested that the Marshal of the Court and all agents of the Australian Federal Police and all police forces and services of various states and territories of Australia are required and empowered to give effect to these orders to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
14.
THAT 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.
15.
That all outstanding applications are otherwise dismissed.
16.
That all exhibits are to be returned at the expiration of one calendar month unless an appeal is lodged.
17.
That the person who caused any subpoena to issue uplift any documents produced under subpoena and return them to their owner within 14 days.
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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