THURSTON & CARDEN

[2015] FCCA 1790

FEDERAL CIRCUIT COURT OF AUSTRALIA

THURSTON & CARDEN [2015] FCCA 1790

Catchwords:
FAMILY LAW – Children – parenting orders – application to vary earlier parenting orders – where consent orders made on 29 September 2011 are ambiguous – where orders lack precision – where likelihood of confusion – one child now aged ten years – interim orders – best interests of the child – parental responsibility – equal shared parental responsibility – substantial and significant time with each parent.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 61DA, 65DAA, 70NEB

Cases cited:
Thurston & Carden [2013] FCCA 1298

Applicant: MS THURSTON

Respondent: MR CARDEN

File Number: PAC 4038 of 2010

Judgment of: Judge Scarlett

Hearing date: 24 July 2014

Date of Last Submission: 24 July 2014

Delivered at: Sydney

Delivered on: 29 June 2015

REPRESENTATION

The Applicant: In person

The Respondent: In person

ORDERS

UNTIL FURTHER ORDER

1. The Orders made by consent on 29 September 2011 are suspended.

2. The mother and father are to have equal shared parental responsibility for the long term care, welfare and development of the child X born (omitted) 2005, to include:

   (a)Major medical decisions about the child’s health;

   (b)Decisions about the school or other educational institution which the child is to attend;

   (c)Decisions about the child’s surname; and

   (d)Decisions about the child’s religious upbringing,

3. Each parent will have sole parental responsibility for the day to day issues relating to the child’s care, welfare and development including day to day medical decisions when the child is in the care of that parent in accordance with these Orders.

4. The child X will live with the mother.

5. The child X will spend time with the father as follows:

   (a)Each alternate weekend during the school term from immediately after school on Friday until the commencement of school on Monday morning PROVIDED THAT if the Monday following the weekend is a public holiday then until the commencement of school on the Tuesday morning;

   (b)For half of each of the Autumn, Winter and Spring school holiday periods being the second half in 2015 and all odd numbered years thereafter and the first half in 2016 and all even numbered years thereafter;

   (c)During the Christmas/January school holiday periods commencing in 2015 and  each odd numbered year thereafter:

   (i)from immediately after school on the last day of the school term until 9:00 am on 20 December;

   (ii)and each alternate week from 5:00 pm on 4 January until commencement of school on the first day that the child is required to attend classes at the commencement of the first school term;  

   (d)During the Christmas/January school holiday periods commencing in 2016 and each even numbered year thereafter:

   (i)From 9:00 am on 20 December until 5:00 pm on 4 January; and

   (ii)Each alternate week commencing at 5:00 pm on 11 January until the commencement of school on the first day that the child is required to attend classes at the commencement of the first school term;

   (e)If Father’s Day occurs on a weekend when the father is not spending time with the child in accordance with these Orders then from 6:00 pm on the Saturday immediately before Father’s Day until the commencement of school on the following Monday;

   (f)On the child’s birthday from immediately after school until 7:30 pm if the child’s birthday falls on a school day and from 10:00 am until 2:00 pm if the child’s birthday falls on a weekend or a public holiday PROVIDED THAT if the child’s birthday falls on a day when the child would otherwise be spending time with the father in accordance with Order (a) above then the provisions of Order (a) will apply.

   (g)On the father’s birthday from immediately after school until 7:30 pm if the father’s birthday falls on a school day and from 10:00 am until 2:00 pm if the father’s birthday falls on a weekend or a public holiday PROVIDED THAT if the father’s birthday falls on a day when the child would otherwise be spending time with the father in accordance with Order (a) above then the provisions of Order (a) will apply.

6. For the avoidance of doubt the father’s time with the child on weekends in accordance with Order (5)(a) above will recommence after the start of the school term as follows:

   (a)If the child has spent the last week of the immediately preceding school holiday period with the mother, the father’s time will recommence on the first weekend of the school term; and

   (b)If the child has spent the last week of the immediately preceding school holiday period with the father, then the father’s time will recommence on the second weekend of the school term.

7. For the avoidance of doubt school holidays for the purpose of Order (5)(b) above will be deemed to commence immediately after school on the last day when the child is required to attend classes at the end of the school term  and will be deemed to end at 5:00 pm on the day before the commencement of school on the first day that the child is required to attend classes at the start of the school term (and thus a “pupil free day” for the teaching staff of the school will be regarded as a part of the school holiday period and not as a day in the school term).

8. Notwithstanding the provisions of the above Orders the father’s time with the child X will be suspended:

   (a)On the weekend that includes Mother’s Day from 6:00 pm on the Saturday immediately before Mother’s Day until the commencement of school the following Monday morning;

   (b)On the child’s birthday if the birthday falls on a weekend or a public holiday when the child would otherwise be in the care of the father in accordance with these Orders from 10:00 am until 2:00 pm; and 

   (c)On the mother’s birthday from immediately after school until 7:30 pm if the mother’s birthday falls on a school day and from 10:00 am until 2:00 pm if the mother’s birthday falls on a weekend or a public holiday.    

9. All changeovers where the child X goes from the care of one parent to the care of the other parent will take place at the child’s school when the father’s time with the child commences immediately after school and concludes at the commencement of school.

10. All other changeovers will take place at the (omitted) Railway station or such other place as the parties may agree in writing and for this purpose “writing” includes by email.

11. The father is to have telephone contact with the child on Tuesday and Thursday of each week for which purpose the mother is to telephone the father’s mobile telephone number between the hours of 6:30 and 7:00 pm and thereafter hand the telephone to the child so that she may speak directly to the father.

12. The father may telephone the mother for the purpose of speaking to the child at a reasonable hour on either a Saturday or a Sunday evening when the child is in the care of the mother.

13. Each party must allow the child to speak to the other party on the telephone in privacy.

14. The parties are restrained by injunction from abusing, criticising or denigrating the other party in the presence or hearing of the child X or permitting any third person to do so.

15. The parties are restrained by injunction from discussing these Court proceedings with the child or showing her any Court documents.

16. The parties must inform each other as soon as is reasonably possible if the child is too ill to attend school or suffers an illness or injury requiring treatment by a medical practitioner or at a hospital.

17. Both parents are entitled to attend any school social, sporting or educational event involving the child including but not limited to theatre performances, sporting events, school activities such as prize-giving ceremonies, concerts, special assemblies and Christmas parties and other activities to which parents of children attending the child’s school are normally invited to attend for which purpose each parent must inform the other parent of the activity a reasonable time beforehand.

18. Each party must inform the other party of their residential address, landline and mobile telephone numbers, their email address and a telephone number at their workplace which is to be used for emergency purposes only and advise each other of any change to any of those details within 48 hours of the change occurring.

19. Each party authorises any medical practitioner, dentist or other health professional who treats the child for any purpose or any hospital at which the child receives either outpatient or inpatient treatment to provide to the other party any information about the child’s health or condition upon reasonable request by the other party.

20. Each party is permitted to obtain from the child’s school all information about the child’s attendance and performance at the school, by means of school reports, attendance at parent/teacher interviews and direct inquiry of members of the school staff at all reasonable times.

21. The Application is adjourned to Monday 1 February 2016 for further mention at 10:00 am.

IT IS NOTED that publication of this judgment under the pseudonym Thurston & Carden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PAC 4038 of 2010

MS THURSTON

Applicant

And

MR CARDEN

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the mother of a girl called X to vary parenting orders made on 29 September 2011. The father has filed a Response in which he, too, seeks to vary the Orders.

2. The Application arose as a result of Contravention proceedings brought by the mother last year (Thurston & Carden[1]). In those proceedings, one of the Counts alleging a contravention by the father of the Orders made on 29 September 2011 was found proved. The others were dismissed.  

   [1] [2013] FCCA 1298

Ambiguity of the Earlier Orders

1. It became clear during the proceedings that the Consent Orders of 29 September 2011 lacked the clarity that such Orders should have and failed to cover obvious events, such as birthdays and Mother’s Day. I commented in the decision, at paragraphs [97] to [99]:

   97.   In my view, the Applicant was correct when she told the Court at the hearing that, whatever the outcome, it is clear that the Orders are “a bit ambiguous”. That is clearly the case. The current Orders are in my view inadequate for the requirements of the parties, who appear to have a low degree of communication with each other and a high degree of suspicion of each other’s ability and motives.

   98. Whilst this situation is not good for either parent, the one whose interests really need to be considered is their daughter. The current orders do not appear to me to be in her best interests, and the Court is required by s.60CA of the Family Law Act 1975 to regard the best interests of the child as the paramount consideration when making a parenting order.

   99.    The current Orders are deficient for a number of reasons, as shown by this case.[2]

   [2] [2013] FCCA 1298 at [97]-[99]

Adjournment of the proceedings to allow for an application for a further parenting order

1. The proceedings before the Court were therefore adjourned under the provisions of s. 70NEB(1)(c) of the Family Law Act 1975 to allow one or other of the parties to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order. The parties duly filed an Application and a Response and were directed to attend a Child Dispute Conference with a Family Consultant.

2. The parties saw the Family Consultant on 5 May 2014. It is obvious from the Child Dispute Conference Memorandum to Court dated that same day that both the mother and the father spoke freely and frankly to the Family Consultant in an effort to arrive at a clearer and more workable parenting arrangement. The Family Consultant noted that the parties “have many more areas of agreement than their damaged parenting relationship allows them to see”.[3]

   [3] Child Dispute Conference Memorandum to Court 5.5.2014 page 1

3. The Family Consultant summarised the issues in this way:

   Fundamentally, they appear to agree that their orders of 2011 should have the adjustments made to them that have been pointed to in Judge Scarlett’s Judgment of 24 September 2013 – that is: tightening up the weekend return time to incorporate public holidays and pupil free days; specifying return time for the last half of the school holidays as either being on the day before the first day that the children are to attend school; providing for X’s birthday and other special occasions; and tightening up when the weekend routine is activated again after school holidays.[4]

   [4] Child Dispute Conference Memorandum to Court page 1

Interim Parenting Orders

1. I have suspended the operation of the Consent Orders of 29 September 2011. It is to be hoped that they can be discharged once fresh Final Orders are to be made.

2. In the meantime, I have made some Orders until further order, that is, Interim Orders, which have a greater degree of precision and far less ambiguity, if any, than the Orders they are intended to replace, without varying the apparent intent of the parties when they entered into those earlier Orders.

3. However, the earlier Orders 15 and 16 have not been reproduced, as they appear to have been drafted by someone who did not understand the concept of parental responsibility, whether it is to be equally shared or solely held by one party. The Orders now provide for equal shared parental responsibility for long term issues and sole parental responsibility for day to day matters when the child is in the care or one or other parent.

4. Clearly, if the child were to fall over and cut her leg, requiring stitches, the parent with the child would not require the permission of the other parent to rush the child to the emergency department of the nearest hospital or to a convenient medical practitioner to treat the child. The parent would be required to tell the other parent what has happened and what is being done to treat the child as soon as is reasonably possible.

5. If one parent forms the view that the child should be removed from her present school and enrolled in another school, then that would clearly be a long term decision that should be made by the parties jointly.

6. It can be seen from the revised orders that public holidays, pupil free days, birthdays, Mother’s Day and Father’s Day are all covered and, it is to be hoped, clearly and without doubt.

7. The interim orders have been drafted with the best interests of the child as the paramount criterion and are intended to provide that the child should spend substantial and significant time with each of her parents (Family Law Act 1975, s.65DAA).

8. What should now happen is that the matter can be mentioned early in the New Year, so that the parties can have the opportunity to give the proposed orders a proper trial. If there are no obvious difficulties the Orders can be made Final Orders. If the parties are at loggerheads, the proceedings can be set down for final hearing.

9. The Orders are intended to provide a clear guide to the parents of this girl, who is now 10 years old, so that their relationship as parents and the day to day life of their daughter can proceed smoothly and without acrimony.

10. That arrangement would clearly be in X’s best interests.      

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  30 June 2015