FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAPPAN & PERKINS | [2010] FMCAfam 413 |
| FAMILY LAW – Children – best interests considerations – children’s views – school holiday time (including overseas holiday) – religious observance & non-resident parent – issues of advocacy. |
| Family Law Act 1975, ss.60B(1), 60B(1)(a), 60CC, 60CC(1), 60CC(2)(a), 60CC(3)(a), 60CC(3)(b), 60CC(3)(b)(ii), 60CC(3)(c), 60CC(3)(e), 60CC(3)(f), 60CC(3)(i), 60CC(4), 60CC(4A), 60CD, 61DA, 65DAA(1), 65DAA(2) |
| Goode v Goode (2007) 36 Fam LR 422 J.T. Gleeson SC & R.C.A. Higgins, Rediscovering Rhetoric: Law, Language and the Practice of Persuasion (Sydney: The Federation Press, 2008) |
| Applicant: | MR TAPPAN |
| Respondent: | MS PERKINS |
| File Number: | CAC 1337 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 5 March 2010 |
| Date of Last Submission: | 19 March 2010 |
| Delivered at: | Canberra |
| Delivered on: | 31 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Godtschalk |
| Solicitors for the Applicant: | Ken Cush & Associates |
| Counsel for the Respondent: | Mr J Millar |
| Solicitors for the Respondent: | Farrar Gesini & Dunn |
CONSENT ORDERS
The parents have equal shared parental responsibility in relation to the children [X], born [in] 1996 and [Y], born [in] 2000 (“the children”).
The children live with the mother.
The children spend time with the father during school times as follows:
(a)from after school at the conclusion of week 3 of each school term until before school on the Friday of week 4 of each school term;
(b)from after school at the conclusion of week 7 of each school term until before school on the Friday of week 8 of each school term.
ORDERS
Overseas Holiday
Upon providing to the Mother a detailed itinerary, the Father be permitted to take the children [X], born [in] 1996 and [Y], born [in] 2000 out of the Commonwealth of Australia for the purposes of a holiday to Europe commencing on 19 September 2010 with the children to be returned to school at the commencement of Term 4.
The Father shall provide the Mother with compensatory time with the children as agreed. If an agreement is unable to be reached, both parties have liberty to apply in this respect
Religious observance
The Father shall facilitate the children’s usual attendance at any weekly Sunday religious observance, or other usual religious observance, whenever they are in his care.
Communication
The Father may communicate by telephone with the children each Tuesday and Friday between 6:00pm and 7:00pm, or as otherwise agreed in writing.
The children be at liberty to telephone the parent with whom they are not living with…
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- AGLC
- Tappan and Perkins [2010] FMCAfam 413
- Case
- [2010] FMCAfam 413
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the interpretation and application of the Family Law Act 1975 (Cth) and the principles of equal shared parental responsibility, the best interests of the children, and the facilitation of meaningful relationships between the children and both parents. The court had to balance the rights and responsibilities of each parent, ensuring that the children's welfare was prioritised and their relationships with both parents were supported.
The court considered the submissions and evidence presented by both parties, taking into account the children's ages, the parents' ability to provide for their needs, and the potential impact of various arrangements on the children's well-being. It determined that the father could take the children on an overseas holiday to Europe, subject to providing a detailed itinerary to the mother. The court also ordered that the father facilitate the children's religious observance, allow for telephone communication between the father and the children, and set out specific arrangements for school holiday periods, Christmas and Easter celebrations, and special occasions such as birthdays and Mother's Day. Additionally, the court directed the mother to provide consent for the father to receive information about the children's activities and events directly from their school and extracurricular providers.
In conclusion, the court issued comprehensive orders that aimed to create a balanced and supportive environment for the children, fostering their relationships with both parents while ensuring their welfare and best interests were paramount. The court's decision provided a detailed parenting schedule that sought to accommodate the unique needs and circumstances of the family while upholding the principles of equal shared parental responsibility.
Orders
Orders of the court
Overseas Holiday
4.
Upon providing to the Mother a detailed itinerary, the Father be permitted to take the children [X], born [in] 1996 and [Y], born [in] 2000 out of the Commonwealth of Australia for the purposes of a holiday to Europe commencing on 19 September 2010 with the children to be returned to school at the commencement of Term 4.
5.
The Father shall provide the Mother with compensatory time with the children as agreed. If an agreement is unable to be reached, both parties have liberty to apply in this respect
Religious observance
6.
The Father shall facilitate the children’s usual attendance at any weekly Sunday religious observance, or other usual religious observance, whenever they are in his care.
Communication
7.
The Father may communicate by telephone with the children each Tuesday and Friday between 6:00pm and 7:00pm, or as otherwise agreed in writing.
8.
The children be at liberty to telephone the parent with whom they are not living with at any reasonable time.
School Holiday Time
9.
The children spend time with their Father during school holiday periods as follows:
(a) For the first term school holiday as observed by [D] School from after school on Friday to 5:00pm on the Wednesday prior to the commencement of school ;
(b) For the second half of the mid-year school holidays with the changeover to occur on the Wednesday morning of the middle week of the June school holidays, with dates calculated with reference to the holidays observed by [D] School;
(c) For the third term school holiday as observed by [D] School from after school on Friday to 5:00pm on the Wednesday prior to the commencement of school; and
(d) In the December/January school holiday periods the children shall live with their parents on the following basis:
(i) For the first three weeks of the school holiday period as observed by [D] School with the Mother in holiday periods commencing in 2010 and each even year thereafter and then with the Father for the remainder of such school holiday periods;
(ii) With the Mother for the last three weeks of the school holiday period as observed by [D] School in holidays commencing in 2011 and each alternate year thereafter, and with the Father for the preceding period of such school holiday periods;
(iii) In respect of Christmas holiday periods changeover shall occur at 6:00pm on the Sunday at the end of the three weeks the children live with the Mother in holidays commencing in even numbered years and at 9:00am on the day three weeks prior to the first day of Term 1 (being the first day the children are required to attend school) when the child are returning to their Mother in holidays commencing in odd numbered years.
Christmas & Easter
10.
Notwithstanding these Orders:
(a) The children live with the Mother from 12:00pm Christmas Eve to 9:00am Boxing Day years ending in an odd number and the children spend time with the Father from 9:00am Boxing Day to6:00pm Boxing Day; and
(b) That the children live with the Father from 12:00pm Christmas Eve to 9:00am Boxing Day years ending in an even number and the children spend time with the Mother from 9:00am Boxing Day to6:00pm Boxing Day.
11.
Notwithstanding these Orders, the children live with he Mother for the period from 10:00am Good Friday to 4:00pm Easter Monday.
Changeover
12.
Unless otherwise agreed in writing where changeover occurs on a school day changeover shall be at the children’s school; when changeover is not on a school day it shall occur at an agreed public third party venue (eg. McDonalds). Such venue shall not include the Paternal Grandmother’s house or the driveway of the Mother’s house.
Birthdays and Other Special Days
13.
The Mother shall make the children available to spend time with the Father within one week, prior or post, each child’s and the Father’s birthdays from Friday after school until 7:30pm on Saturday.
14.
Notwithstanding these Orders the children will spend time with the Mother from 12:00pm to 6:00pm each Mother’s Day.
15.
Notwithstanding these Orders the children will spend time with the Father from 12:00pm to 6:00pm each Father’s Day.
16.
Notwithstanding these Orders, if the Mother’s birthday falls on a day when the children would otherwise be living with the Father, the following Orders apply:
(a) If the Mother’s birthday falls on a weekday, the Father shall take all reasonable steps to make the children available to spend time with the Mother for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from 4:00pm to 7:00pm on her birthday;
(b) If the Mother’s birthday falls on a weekend, the Father shall take all reasonable steps to make the children available to spend time with the Mother as agreed, but failing such agreement from 12:00pm to 7:00pm on her birthday.
17.
Notwithstanding these Orders, if the children are in the care of the Father on the birthdays of their siblings, [A] born [omitted] and [B] born [omitted] and step-father [first name omitted] born [omitted], then the following Orders shall apply, unless otherwise agreed in writing:
(a) That if the sibling or stepfather’s birthday falls on aw eek day, the Father shall take all reasonable steps to ensure that the children spend time with their siblings or stepfather having the birthday for a period of at least there hours at a time to be agreed between the parties but failing such agreement from 4:00pm until 7:00pm; and
(b) That if the sibling and stepfather’s birthday falls on a weekend, the Father shall take all reasonable steps to ensure that the children spend time with the sibling and stepfather having the birthday from 12:00pm until 5:00pm on the birthday.
Authorities
18.
The Mother shall, if necessary, provide her consent to the children’s school principals and providers of extra curricular activities (“service providers”), so as to permit information about the children’s activities and events such as school newsletter and pamphlets, to be provided direct to the Father, at his cost if any, should the Father request such information from those service providers. The information to which the Mother’s consent relates shall not include information relating to the Mother’s interaction with or relationship with those service providers, including her correspondence to or from those service providers.
Communication
19.
The parties communicate by email unless in the case of an emergency in which case they shall telephone or text the other parent.
20.
To facilitate compliance with the above Order, the parties shall keep the other informed of their email address.
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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