FEDERAL CIRCUIT COURT OF AUSTRALIA
| WARNER & WARNER | [2016] FCCA 703 |
| Catchwords: FAMILY LAW – Parenting – where there is a young child displaying some anxiety – where the parents live a considerable distance apart – where the mother and the father have different perspectives as to the child coping with time with the father and separation from the mother – where the child living with the mother is conceded but the parents propose different time frames for gradual increases in time with the father – where two family reports have addressed such issues and the progression in time with the father – where the paramount consideration as always is the welfare of the child – where the family report writer suggests a graduated increase in time to be spent by the father with the child falling between the proposals of each parent – where consideration is given to the different parental perspectives – where orders are made to provide certainty as to the time to spent with each parent. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60DA, 61C, 61D, 61DA, 65DAA(5), 65DAC, 65DAE |
| Jones & Dunkel (1959) 101 CLR 298 Heath & Hemming (No 2) [2011] FamCA 749 U v U (2002) 211 CLR 238 MRR v GR (2010) 240 CLR 461 |
| Respondent: | MR WARNER |
| Respondent: | MS WARNER |
| File Number: | TVC 211 of 2014 |
| Judgment of: | Judge Coker |
| Hearing date: | 17 February 2016 |
| Date of Last Submission: | 17 February 2016 |
| Delivered at: | Townsville |
| Delivered on: | 1 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mclennan |
| Solicitors for the Applicant: | Macdonnells Law |
| Counsel for the Respondent: | Dr Sayers |
| Solicitors for the Respondent: | Clewett Lawyers |
ORDERS
That all previous Orders in relation to Parenting be discharged.
That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child, [X] born 2013, subject to the Mother consulting with the Father except in circumstances of emergency in relation to such decisions prior to making any final decisions, such consultation and communication to include but not be limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
That notwithstanding order 2 herein:
(a)The Mother be responsible for the day-to-day care, welfare and development of the child when she is living with or spending time with her.
(b)The Father be responsible for the day-to-day care, welfare and development of the child when she is living with or spending time with him.
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- AGLC
- Warner and Warner [2016] FCCA 703
- Case
- [2016] FCCA 703
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent of parental responsibility for long-term decisions concerning the child's care, welfare, and development, and to establish specific parenting arrangements, including living arrangements, time spent with each parent, and the allocation of travel and accommodation costs associated with these arrangements. The court also needed to address arrangements for special occasions, communication between parents and the child, and mechanisms for dispute resolution.
Judge Coker ordered that the Mother have sole parental responsibility for long-term decisions regarding [X]'s care, welfare, and development, subject to her consulting with the Father, except in emergencies. The Mother was made responsible for the child's day-to-day care when [X] was with her, and the Father was similarly responsible when [X] was with him. The orders detailed a staged increase in the time [X] would spend with the Father, commencing from the date of the order and progressing through to February 2018, with specific provisions for school holidays and special occasions. The court also stipulated the allocation of travel and accommodation costs for these arrangements, with varying responsibilities for each parent depending on the specific order. Furthermore, the court made orders regarding communication between the child and each parent, the surname to be used for the child, and a dispute resolution process involving a Family Dispute Resolution Practitioner.
Orders
Orders of the court
1.
That all previous Orders in relation to Parenting be discharged.
2.
That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child, [X] born 2013, subject to the Mother consulting with the Father except in circumstances of emergency in relation to such decisions prior to making any final decisions, such consultation and communication to include but not be limited to:
(a) a child’s education (both current and future);
(b) child’s religious and cultural upbringing;
(c) a child’s health;
(d) a child’s name;
3.
That notwithstanding order 2 herein:
(a) The Mother be responsible for the day-to-day care, welfare and development of the child when she is living with or spending time with her.
(b) The Father be responsible for the day-to-day care, welfare and development of the child when she is living with or spending time with him.
4.
That each parent shall be responsible for decisions concerning [X]’s day to day care, welfare and development when [X] is living with or spending time with that parent.
Parenting arrangements for [X]:
5.
That [X] live with the Mother in Town 1.
6.
That [X] spend time with the Father at all reasonable times as agreed and in particular:
(a) From the date of this order until 1 October 2016 for three full days and two nights to be nominated by the Father in each month in Town 1 with the Father to collect the child from the Mother at 9.00am on day 1 and return the child to the Mother at 5.00pm on day 3.
(b) From 1 October 2016 until 1 April 2017 for four full days and three nights to be nominated by the Father in each month in Town 1 with the Father to collect the child from the Mother at 9.00am on day 1 and return the child to the Mother at 5.00pm on day 4 with the time in December not to include Christmas Day.
(c) From 1 April 2017 until 1 February 2018 for five full days and four nights to be nominated by the Father in each month with the Father collecting the child at 9.00am or as otherwise agreed on Day 1 and return the child to the Mother at 5.00pm or as otherwise agreed on day 5 with changeovers to occur at Brisbane Domestic Airport or as otherwise agreed in writing and with the Father’s time to include Christmas Day in 2017.
7.
That in substitution of one occasion to be spent by the Father with the child pursuant to the preceding Orders 6(a) & (b), the Mother shall accompany the child to Town 2 once in each six months to enable the Father to spend time with the child for the same period of time as provided pursuant to these Orders but in Town 2.
8.
That for the purposes of Orders 6(a) & (b) herein, the Father shall be responsible for his own travel and accommodation costs absolutely and for the purposes of Order 7 herein, the Mother shall be responsible for her and [X]’s travel and accommodation costs absolutely.
9.
That for the purposes of Order 6(c) herein, the Father shall be responsible for his own travel and accommodation costs absolutely and he and the Mother shall be jointly responsible for [X]’s travel costs upon an apportionment of 75% payable by the Father and 25% payable by the Mother with the Father to be responsible for bookings to be made at least 21 days prior to travel and for the Mother to pay to the Father 25% of the travel costs within 7 days of receiving written notification of those costs.
10.
That upon the child commencing school the Father shall spend time with the child at all reasonable times as may be agreed and in particular:
(a) For up to two occasions each term for a weekend nominated by the Father at least 14 days prior to the weekend commencing from after school Friday until before school Monday or Tuesday should the Monday be a Public Holiday or Pupil Free Day; and
(b) For one half of the end of term 1, 2, 3 & 4 Queensland gazetted school holiday period commencing in 2018 and unless otherwise agreed for the second half in even numbered years and the first half in odd numbered years with changeovers to occur at Brisbane Domestic Airport or as otherwise agreed in writing.
11.
That for the purposes of Order 10(a) herein, the Father shall be responsible for his own travel and accommodation costs absolutely.
12.
That the Father and the Mother shall be equally responsible for [X]’s travel costs with the Father to be responsible for bookings to be made at least 21 days prior to travel and for the Mother to pay to the Father 50% of the travel costs within 7 days of receiving written notification of those costs.
13.
That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:
(a) The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;
(b) The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS CONCLUDE WITH THE EASTER LONG WEEKEND THEN:
(c) The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday which falls 8 days later;
(d) The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday falling 8 days after the commencement of the holidays until 6.00pm on the Monday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:
(e) The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;
(f) The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(g) The first half of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;
(h) The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.
Special Occasions:
14.
That the parents spend time with [X] on special occasions as agreed in writing though pursuant to the preceding Orders as to the staged increases in time to be spent by the Father with the child:
(a) Should the child not be in the care of the Father on Father’s Day, then the Father may spend that weekend with the child (including Father’s Day) provided that notice in accordance with these Orders is given;
(b) The Mother is to spend the weekend that includes Mother’s Day with the child;
(c) The Mother is to spend the child’s Birthday with the child in odd years;
(d) The Father is to have the opportunity to spend the child’s Birthday with the child in even years provided that notice in accordance with these Orders is given.
(e) Should the parties not otherwise agree then the child is to be baptised in Town 2 on a date to be nominated by the Father upon the giving of at least 42 days’ notice to the Mother. The parents are to jointly make arrangements with regard to the celebrant and any celebration to follow the baptism and failing agreement then that the Father be at liberty to make such arrangements and to advise the Mother accordingly.
15.
Whilst in the care of the other party for special occasions, [X] will be available for FaceTime or other reasonable forms of electronic communication with the other parent at any reasonable times.
16.
That neither parent will denigrate the other parent or their family members in front of or in the presence and hearing of the child, or allow another person to do so.
17.
That this Order authorises any school/s attended by the child to provide each parent, at the expense of that parent, copies of school reports, school photographs and any other school-related correspondence or information usually provided to parents.
18.
That this Order authorises any medical or allied health practitioner/s attended by the child to provide to each parent, at the expense of that parent, copies of all medical reports, correspondence and any other information usually provided to parents.
19.
That each party is entitled to attend at the child’s day-care, pre-school, school, and other institutions or organisations providing extra-curricular education or activities subject only to the policies of the relevant institution or body.
20.
That the child shall communicate with the Father via telecommunication or other electronic means not less than twice per calendar week at times as agreed between the parties and failing agreement at 6.00pm on Monday and Thursday.
21.
That when the child is spending time with the Father pursuant to these Orders, the child shall communicate with the Mother via telecommunication or other electronic means not less than twice per calendar week at times as agreed between the parties and failing agreement at 6.00pm on Monday and Thursday.
22.
That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
23.
That the parties encourage and not undermine the child’s relationship with the other party.
Child’s Surname
24.
The child is to be referred to by her surname WARNER and in respect of any school enrolment, school records, medical and hospital records, Centrelink and Medicare records and any applicable Commonwealth and State Government records, the Mother and Father are to refer to the child by the surname WARNER.
Dispute Resolution
25.
That the process to be used for resolving future disputes about the child or the terms or operation of these Orders shall be as follows:
(a) The Family Relationship Centre shall be appointed as Family Dispute Resolution Practitioner;
(b) The parents shall consult with the Family Dispute Resolution Practitioner or a Family Relationship Centre to assist with resolving any dispute in relation to the child or reaching agreement about changes to be made to the parenting arrangements for the child;
(c) They shall pay the costs of the Family Dispute Resolution Practitioner equally;
(d) In the event that they are unable to, for any reason, to have an appointment with the Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(e) The Father shall choose one (1) of the listed practitioners with seven (7) days of the receipt of the list; and
(f) If the Father fails to choose then the Mother may choose.
26.
Each party have liberty to apply within 28 days of the date of this order in relation to any point of clarification in relation to the orders and in respect of costs.
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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