FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WALES & MACY | [2010] FMCAfam 351 |
| FAMILY LAW – Child aged 4 years 1 month – child currently living with mother at [W] near [N] and spending regular time with the father at [G] on the Central Coast – mother has three older children by a previous relationship living with her – the father has an older son by a previous relationship with whom he spends substantial and significant time – the father seeks orders that the mother relocates with the child to the Central Coast district to enable the child to spend substantial and significant time with him – mother seeks to remain with the child at [W]. |
| Family Law Act 1975 (Cth) – Part VII |
|
| Applicant: | MS WALES |
| Respondent: | MR MACY |
| File Number: | NCC 3287 of 2007 |
| Judgment of: | FM Coakes |
| Hearing dates: | 20 November 2009 & 31 March 2010 |
| Date of Last Submission: | 31 March 2010 |
| Delivered at: | Newcastle |
| Delivered on: | 21 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr I Duane |
| Solicitors for the Applicant: | Gianacas Argiris McDonald |
| Counsel for the Respondent: | Mr M Bateman (for the 1st day of hearing) |
| Solicitors for the Respondent: | J J Lees & Associates (for the 1st day of hearing) |
ORDERS
That all previous parenting orders are discharged.
The parents have equal shared parental responsibility for the child [X] born [in] 2006 (“[X]”).
Each parent is to have sole responsibility for making decisions concerning [X]’s day to day care, welfare and development whilst he is in his or her care respectively.
That the parents are to consult each other in relation to any long term issue in relation to [X] and are to make a genuine effort to come to a joint decision about issues concerning his care, welfare and development of a long term nature which include (but is not limited to) issues of that nature about:-
(a)his education both current and future;
(b)his religious and cultural upbringing;
(c)his health;
(d)his name;
(e)changes to living arrangements for him that make it significantly more difficult for him to spend time with either parent.
That each parent is restrained from enrolling [X] in any school for the commencement of his formal or primary education prior to the beginning of 2012.
That [X] live with the mother.
That the mother is restrained from changing [X]’s place of residence more than 20 kms outside [W] unless such place is closer to the father’s…
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- Wales and Macy [2010] FMCAfam 351
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CaseChat Overview and Summary
In its reasoning, the court found that neither parent would expose [X] to any risks that could harm his wellbeing. The evidence demonstrated that [X] had a close and loving relationship with both parents, and both parents were committed to providing for [X]'s needs and fostering his development. The court was satisfied that both parents were willing to ensure that [X] maintained a relationship with the father, despite challenges following the parents' separation. The court emphasised the importance of the parents improving their communication and cooperation in the best interests of [X]. Given [X]'s young age, the court did not consider it appropriate to give weight to his views, but noted the close bonds he has with other family members.
The court's outcome included discharging all previous parenting orders and establishing new arrangements that promote a balanced and cooperative co-parenting relationship. [X] was to live primarily with the mother but spend significant time with the father, with detailed schedules for visitation and holidays. The court also imposed restrictions on the parents' ability to enrol [X] in school or activities without consulting each other and mandated communication between the parents through a designated book and other means. Additionally, the court prohibited the parents from denigrating each other in front of [X] and restricted the use of alcohol and prohibited substances while caring for [X]. The parents were also required to consult with family dispute resolution practitioners to manage any future disputes or changes in circumstances.
Orders
Orders of the court
1.
That all previous parenting orders are discharged.
2.
The parents have equal shared parental responsibility for the child [X] born [in] 2006 (“[X]”).
3.
Each parent is to have sole responsibility for making decisions concerning [X]’s day to day care, welfare and development whilst he is in his or her care respectively.
4.
That the parents are to consult each other in relation to any long term issue in relation to [X] and are to make a genuine effort to come to a joint decision about issues concerning his care, welfare and development of a long term nature which include (but is not limited to) issues of that nature about:-
(a) his education both current and future;
(b) his religious and cultural upbringing;
(c) his health;
(d) his name;
(e) changes to living arrangements for him that make it significantly more difficult for him to spend time with either parent.
5.
That each parent is restrained from enrolling [X] in any school for the commencement of his formal or primary education prior to the beginning of 2012.
6.
That [X] live with the mother.
7.
That the mother is restrained from changing [X]’s place of residence more than 20 kms outside [W] unless such place is closer to the father’s place of residence on the Central Coast.
8.
That the father spend time with [X] as follows:
(A) Until [X] commences his formal primary education 2012
(a) from 6.00pm on the Thursday until 6.00pm on the following Sunday each alternate weekend commencing on the first Thursday following the date of these orders;
(b) If not otherwise with the father pursuant to these orders, on Fathers Day weekend from 5.00pm on the Friday until 5.00pm Fathers Day;
(c) from 3.00pm 24 December until 3.00pm 25 December 2011 and 3.00pm 25 December until 5.00pm 26 December 2010.
(d) for one half of the school holidays applicable in the State of New South Wales during 2010 at the end of terms 2 and 3, and for 2 periods each of 7 days and separated by not less than 14 days during the Christmas school holidays in 2010 at the end of term 4 with each such period to be agreed between the mother and the father but in the absence of agreement for the first half of the school holiday periods at the end of terms 2 and 3 commencing at 10.00am on the first Saturday of each such holiday period and concluding at 5.00pm on the second Sunday and with the first of the 7 day periods in the Christmas school holidays commencing at 5.00pm on 26 December and concluding at 5.00pm 7 days later and for the second period to commence at 10.00am on the second last Saturday of the holiday period and to conclude at 5.00pm on the Sunday immediately preceding the commencement of the first school term in 2011 provided that the father is to be on leave from his employment for the whole of the periods of each such school holidays;
(e) during school holiday periods applicable in the State of New South Wales during 2011 at the end of terms 1, 2 and 3 for a period of 10 consecutive nights in each such holiday period as the parents are able to agree but in the absence of agreement from 2pm on the first Saturday until 2.00pm on the Tuesday of the second week of such holiday periods and provided that the father is absent from his employment for the whole of such periods, and for one half of the school holidays at the end of the term 4 in 2011 for such period as is agreed between the parents but in the absence of agreement commencing at 3.00pm on 25 December provided that the father is on leave from his employment for this period;
(f) At such other times and places as the parents are able to agree.
(B) Upon [X] commencing primary school in 2012
(a) during school terms each alternate weekend from 6.00pm Friday until 4.00pm Sunday, extended to 4.00pm Monday if the Monday is a public holiday or pupil free day, commencing on the first weekend of each new school term;
(b)
during school holiday periods applicable in the State of New South Wales at the end of terms 1, 2 and 3 for a period of
10 consecutive nights in each such holiday period as the parents are able to agree but in the absence of agreement from 2.00pm on the first Saturday until 2.00pm on the Tuesday of the second week of each such holiday period.
(c) for one half of the school holidays at the end of the fourth term for such period as is agreed between the parents but in the absence of agreement commencing at 3.00pm on 24 December in odd numbered years and 5.00pm on 26 December in even numbered years;
(d) if not otherwise spending time with the father pursuant to these orders, on Fathers Day weekend from 5.00pm Friday until 5.00pm Fathers Day;
(e) at such others times as the parties may agree.
(C) Upon [X] commencing High School
(a) during school terms each third weekend from 6.00pm on the Friday until 6.00pm on the Sunday, extended to 6.00pm Monday if such Monday is a public holiday or pupil free day, commencing on the first weekend of the new School term if [X] spent time with his father during the first half of the immediately preceding school holiday or on the third weekend if [X] spent time with his father during the second half of the immediately preceding school holiday;
(b) for one half of each school holiday period applicable in the State of New South Wales, including the Christmas holidays, such half to be as agreed but in the absence of agreement for the first half in even numbered years commencing at 10.00am on the first Saturday of such holidays and concluding at 5.00pm on the date mid way through such holidays and in odd numbered years for the second half of such holidays commencing at 10.00am on the mid point of such holidays and concluding at 5.00pm on the last Sunday before school resumes;
(c) if not otherwise spending time with the father pursuant to these orders, on Father’s Day weekend from 5.00pm Friday until 6.00pm Father’s Day;
(d) such other times as the parties may agree.
9.
The times during which [X] is spending time with the father pursuant to these orders is suspended, in so far as it is necessary, or varied, to ensure [X]:
(a) is with the mother on Mothers Day weekend, if [X] is not otherwise living with the mother for such period and from the conclusion of pre-school or school on the Friday until the commencement of pre-school or school on the following Monday morning;
(b) is with the mother from 3.00pm on 24 December until 5.00pm on 26 December in even numbered years until [X] commences High School.
10.
That implementation of the times [X] is to spend with the father is to be effected by the parents or their respective nominees known to [X] meeting at the McDonalds Family Restaurant, [address omitted] for the delivery of [X] to the father at the commencement of such period and the return of [X] to the mother at the conclusion of his time with the father.
11.
That in the event that the mother is proposing to travel beyond [H] to the Central Coast on any occasion that [X] is to spend time with the father pursuant to these orders, the mother is to give not less than
24 hours notice of such proposal to the father by telephone, text message, SMS, email or any other means and the parents are then to implement delivery of [X] to the father and collection of [X] from the father at [omitted] or some other mutually convenient place on the Central Coast and which may also be effected by the nominee of each parent respectively.
12.
That each parent is to inform the other of any change of particulars of that parent’s residential address, landline telephone number, mobile telephone number and email address and within 24 hours of any such change occurring.
13.
That each parent is to notify the other by SMS text message or mobile telephone if either parent is likely to be more than 10 minutes late in collecting, delivering or returning [X] at the commencement or conclusion of any time [X] is spending with his father pursuant to these orders.
14.
That each parent is to advise the other as soon as possible by the best available means in the event of any of the following occurring:-
(a) [X] being seriously injured or falling seriously ill;
(b) [X] requiring urgent medical treatment from a doctor or ambulance crew;
(c) [X] being admitted to hospital.
15.
That both parents are to authorise in writing the Principal of the
pre-school and school attended by [X] from time to time to supply to the other parent copies of progress reports, school reports, notices relating to pupils at such pre-school or school, school letters, invitations to any carnival, sporting or social functions, notices of and invitations to parent teacher interviews and any other notices directed to parents of children attending such pre-school or school, and service of a sealed copy of these orders upon such pre-school and school is a sufficient discharge of this order.
16.
That the mother is to ensure that the father’s name, address and telephone number is included on each pre-school and school enrolment form and medical record.
17.
That the mother is restrained from enrolling [X] in any school activity to occur on the Friday afternoon or evening and any school or extra curricular activity to occur on a weekend or holiday period when [X] is due to spend time with his father pursuant to these orders without first discussing the proposed activity and possible enrolment with the father with a view to reaching an agreement, and not to occur unless so agreed.
18.
Within 7 days of the date of these orders the mother is to purchase a communication book for use by the parents and to enable them to communicate with each other about the needs and wishes of [X] and to exchange details of important matters of his daily care, welfare, education, medications and medical treatment with such book to travel with [X] at change over and in a sealed envelope.
19.
Each parent is restrained from denigrating the other parent and members of the other parent’s immediate family and extended family in the presence or hearing of [X] including making rude comments and insulting comments, and each parent is further restrained from causing or permitting any other person to engage in such behaviour in the presence of [X].
20.
Each parent is restrained from using prohibited substances whilst [X] is in the care of each of them respectively, and each parent is to do all things possible to ensure other persons do not use prohibited substances in the presence of [X].
21.
Each parent is restrained from consuming alcohol whilst the child is in the care of each of them respectively to such an extent that his or her parenting ability is impaired.
22.
Each parent is at liberty to obtain all relevant medical records and to consult with [X]’s medical practitioners to obtain any information he or she may require and service of a sealed copy of these orders is sufficient authority for that purpose.
23.
Both parents are to encourage and permit [X] to communicate with the other parent at any time requested by [X], and otherwise, with such communication to be either by telephone, email, text message, SMS, web cam, skype or other electronic communication with each parent to ensure within 3 months of the date of these orders that each has the facilities for communication by such means.
24.
That both parents are to consult with a Family Dispute Resolution practitioner at a Family Relationship Centre or elsewhere or such other family consultant that may be agreed between the parents to assist with:
(a) resolving any dispute between the parents as to the terms or operation of these orders;
(b) reaching agreement about any changes to be made to these orders arising from any change in the needs or circumstances of [X], or the parents, in the event that any dispute or disagreement arises concerning such changes.
25.
Each parent is restrained from making an application to the Court for variation of these orders to take account of the matters specified in Order 24(b) without first having complied with Order 24 in relation to such matters.
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
I am satisfied on the evidence before me that neither parent will willingly expose [X] to risks of this nature. On the evidence before me, [X] has not been exposed to inappropriate behaviour by his parents which has had any adverse affect upon him but the parents are to be cautioned for the reasons set out earlier in these Reasons for Judgment as to the importance of improving their communication in [X]’s best interests. (3)Additional considerations are: a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views; This subsection has no application given [X]’s young age and his present developmental stage. Further, there is no evidence of [X]’s wishes to which I could attach any weight.b) the nature of the relationship of the child with: (i)each of the child's parents; There is no doubt on the evidence before me that [X] has a fond, close and loving relationship with each of his parents. Further, I am satisfied on the evidence that both parents have much to offer him and will continue to be able to do so, irrespective of whether he is living at [W] or on the Central Coast. I am satisfied that the outcome of these proceedings will not adversely affect either parent’s genuine wish, which I find exists on the evidence, to parent him appropriately and equip him for adult life. (ii)other persons (including any grandparent or other relative of the child); There are a number of significant other persons with whom [X] enjoys a close and loving relationship including his half siblings in the mother’s household and members of the mother’s extended family and other children living on the same property, and the maternal grandmother, and the father’s household, his son [Y] and the father’s present partner and her 12 year old daughter [Z]. c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; Whilst the evidence establishes that following separation [X] did not spend frequent time with the father, and there are a number of reasons asserted by each of the parents as to why this did not occur, I am satisfied that since the mother moved to [W], and since the orders of 16 April 2009 both the mother and the father have been both willing and unable to ensure [X] spends time with his father pursuant to such orders. In his evidence in chief, that father said he had not spent time with [X] on two occasions pursuant to such orders since Christmas of 2009. In cross examination, the father conceded that the mother had given him an explanation for those occasions. I suggested to the parents that some discussions take place for some make up time and a consent order was made to this effect on 31 March. I am satisfied on the evidence that both parents will continue to ensure that [X] spends time with the father, irrespective of where he is living.