FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAPP & TAPP | [2010] FMCAfam 121 |
| FAMILY LAW – Parenting – whether equal time in children’s best interests when parents in conflicted relationship – found parents’ relationship not “highly conflicted” – the children have a close relationship with both parents and have lived in a “shared care” arrangement for some time – the parties live proximate to each other – order made for the children to spend equal time with each parent. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| T & N [2001] FMCAfam 222 C v O’N [2003] FMCAfam 154 Astor & Astor [2007] FamCA 355 |
| Applicant: | MS TAPP |
| Respondent: | MR TAPP |
| File Number: | MLC 11322 of 2007 |
| Judgment of: | Bender FM |
| Hearing dates: | 10, 11 & 12 February 2010 |
| Date of Last Submission: | 12 February 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 19 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | Pearsons Barristers & Solicitors |
| Counsel for the Respondent: | Ms Dellidis |
| Solicitors for the Respondent: | Stynes Dixon Lawyers |
ORDERS
All previous parenting orders be dismissed.
The parties have equal shared parental responsibility for their children [X] and [Y] both born [in] 2003 (“[X]” and “[Y]”).
The husband and wife have sole responsibility for making decisions regarding the day-to-day care, welfare and development for [X] and [Y] when they are in their care.
Subject to order 7 herein, [X] and [Y] live with the husband as follows:
(a)during school term:
(i)Week One: from after school Wednesday until the commencement of school Monday; and
(ii)Week Two: from after school Wednesday until the commencement of school Friday;
(b)for half of the school term holidays, which in 2010 and each alternate year thereafter shall be the first half, and in 2011 and each alternate year thereafter shall be the second half. For the purpose of these orders, the first half of the school term holiday periods commence at the conclusion of the last day of the school term and conclude at 10.00am on the day in the middle of the school term holidays and the second half of the school term holidays commence at 10.00am on the middle day of the school term holiday period and conclude at the commencement of the first day of [X] and [Y]’s next school term.
(c)during the long summer vacation:
(i)2010/2011 and each alternate long summer vacation thereafter:
A.from 10.00am on 17 December until 10.00am on 27 December;
B.
from 10.00am on 3 January until 10.00am on
10 January; then alternating weekly with changeovers to occur at 10.00am on each seventh day thereafter until the conclusion of the long summer vacation;
(ii)2011/2012 and each alternate long summer vacation thereafter:
A.from the conclusion of the last day of the school year until 10.00am on 17 December; and
B.
from 10.00am on 27 December until 10.00am on
3 January; then alternating weekly with changeovers to occur at 10.00am on each seventh day thereafter until the conclusion of the long summer vacation; and
(d)as otherwise agreed between…
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- Tapp and Tapp [2010] FMCAfam 121
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- [2010] FMCAfam 121
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CaseChat Overview and Summary
The primary legal issues before the court were the allocation of parental responsibilities and the establishment of a parenting schedule that would promote the children's welfare. The court considered evidence and submissions from both parents regarding their ability to provide for the children's physical, emotional, and educational needs. The court also had to ensure that the arrangements facilitated meaningful and ongoing relationships between both parents and the children, while minimising disruption to their daily lives and education.
The court found that it was in the best interests of the children for both parents to have equal shared parental responsibility. The court determined that the children should primarily reside with the husband during school terms and alternate long summer vacation periods, while the wife would have custody for the remainder of the time, including school holidays. The detailed schedule outlined in the orders ensured a balance between the parents, allowing for consistency and stability in the children's lives. The court also emphasised the importance of communication and cooperation between the parents, including provisions for the exchange of information about the children's health and education, and restrictions on disparaging behaviour towards each other in the presence of the children.
The court's orders provided for specific arrangements during school terms, holidays, and special occasions, ensuring that the children have a predictable and structured environment. The court also required the parents to maintain open lines of communication and to facilitate the children's contact with both parents through various means. Additionally, the court imposed measures to safeguard the children's passports and to prevent either parent from removing the children from their school without the other's consent. These orders aimed to protect the children's welfare and to foster a cooperative co-parenting relationship.
Orders
Orders of the court
1.
All previous parenting orders be dismissed.
2.
The parties have equal shared parental responsibility for their children [X] and [Y] both born [in] 2003 (“[X]” and “[Y]”).
3.
The husband and wife have sole responsibility for making decisions regarding the day-to-day care, welfare and development for [X] and [Y] when they are in their care.
4.
Subject to order 7 herein, [X] and [Y] live with the husband as follows:
(a) during school term:
(i) Week One: from after school Wednesday until the commencement of school Monday; and
(ii) Week Two: from after school Wednesday until the commencement of school Friday;
(b) for half of the school term holidays, which in 2010 and each alternate year thereafter shall be the first half, and in 2011 and each alternate year thereafter shall be the second half. For the purpose of these orders, the first half of the school term holiday periods commence at the conclusion of the last day of the school term and conclude at 10.00am on the day in the middle of the school term holidays and the second half of the school term holidays commence at 10.00am on the middle day of the school term holiday period and conclude at the commencement of the first day of [X] and [Y]’s next school term.
(c) during the long summer vacation:
(i) 2010/2011 and each alternate long summer vacation thereafter:
A. from 10.00am on 17 December until 10.00am on 27 December;
B.
from 10.00am on 3 January until 10.00am on
10 January; then alternating weekly with changeovers to occur at 10.00am on each seventh day thereafter until the conclusion of the long summer vacation;
(ii) 2011/2012 and each alternate long summer vacation thereafter:
A. from the conclusion of the last day of the school year until 10.00am on 17 December; and
B.
from 10.00am on 27 December until 10.00am on
3 January; then alternating weekly with changeovers to occur at 10.00am on each seventh day thereafter until the conclusion of the long summer vacation; and
(d) as otherwise agreed between the parties.
5.
The living arrangements for [X] and [Y] pursuant to order 4(a)(i) herein shall commence and be reset on the first week of each school term.
6.
Subject to order 7 herein, at all other times [X] and [Y] shall live with the wife.
7.
[X] and [Y] shall live with their parents as follows:
(a) each alternate Easter commencing with the husband in 2010. Easter shall commence from the conclusion of school on Easter Thursday until the commencement of school Easter Tuesday. In the event Easter falls on the middle weekend of the first school term holiday, the parent with whom [X] and [Y] are to live with for Easter will have [X] and [Y] live with them from the conclusion of school at the end of term until 10.00am Easter Tuesday;
(b) if a public holiday falls on a Monday, then [X] and [Y] will remain living with the parent with whom they are living on the weekend preceding the public holiday until the commencement of school on Tuesday;
(c) if not already living with the husband, then with the husband from 10.00am Father’s Day until the commencement of school the following day;
(d) if not already living with the wife, then with the wife from 10.00am Mother’s Day until the commencement of school the following day;
(e) on [X] and [Y]’s birthday they shall remain living with the parent with whom they are living pursuant to these orders but shall spend time with the other parent from the conclusion of school until 5.30pm if a school day and from 10.00am until 2.00pm if a non-school day; and
(f) on each of the parent’s birthdays, if not already living with the parent who is having the birthday then with that parent from the conclusion of school until the commencement of school the next day if a school day or from 10.00am on the parent’s birthday until 10.00am the following day if a non-school day.
8.
All changeovers that do not occur at [X] and [Y]’s school shall be facilitated by the husband collecting [X] and [Y] from the wife’s residence at the commencement of the periods of time that [X] and [Y] live with him and the wife collecting [X] and [Y] from the husband’s residence at the conclusion thereof, or as otherwise agreed between the parties.
9.
Both parties are at liberty to arrange for [X] and [Y] to be collected from school or the other’s home by an adult third party who is known to [X] and [Y].
10.
[X] and [Y] be at liberty to communicate with their mother and father by mobile and/or landline telephone, email or by any other means at all reasonable times, and both parties will ensure that [X] and [Y] have ready access to, and shall meet the expense of these services at all times whilst [X] and [Y] are in their care.
11.
Both parties be and are hereby restrained from listening in to, or interfering with in any way, the communication between [X] and/or [Y] and the other party.
12.
For the purpose of order 9 herein, both parties shall ensure they advise the other of their current landline telephone number and notify the other in writing of any change of such telephone number seven days prior to any change to that telephone number.
13.
Each party shall advise the other of any serious illness or injury suffered by either of [X] and [Y] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
14.
Each party is free to be fully involved in the school lives of [X] and [Y], to receive copies of school reports, school newsletters, school photograph order forms and the like and to attend all parent/teacher interviews, events and functions to which parents are normally invited.
15.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X] and [Y] or any of them, and from permitting any other person so to do.
By Consent
16.
The wife shall lodge within 14 days the signed applications for the children’s passports, delivered to her this day.
17.
In the event the said applications are rejected, each of the husband and wife forthwith attend to any requisition made to successfully complete the application.
18.
Immediately upon receipt of the children’s passports, the wife shall notify in writing (including SMS) the husband of such receipt.
19.
Pending the processing of the applications, and within seven days, at equal expense, each party attend at a bank agreed between them and open a safety deposit box in their joint names requiring both parties’ signature for its operation including photographic identification.
20.
The parties shall place the passports in the said deposit box within three days of their receipt by the wife.
21.
Should either party wish to access the passports or either of them, they shall provide to the other party full details of their reason for same, including any proposed travel itinerary, flight details, accommodation, contact details and relevant dates.
22.
Neither party shall unreasonably withhold their consent to the release of the passports, and shall provide their response within 14 days.
23.
The passports or either of them shall be returned to the deposit box immediately following their use and no longer than 24 hours of access being available.
24.
The husband and wife each be and are hereby restrained from removing the children or either of them from [W] School without the written consent of the other.
25.
The parties shall each do all things required to renew the children’s passports upon expiration, loss or destruction within 14 days of a request by the other.
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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