FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Weimann & Weimann [2021] FedCFamC2F 70
File number(s): LNC 628 of 2018 Judgment of: JUDGE TURNBULL Date of judgment: 23 September 2021 Catchwords: FAMILY LAW – parenting – best interests of the child – meaningful relationship – time agreed between parties except for Week 1 of a two week time-sharing routine – whether time in Week 1 should occur Thursday until Sunday or Friday until Monday – equal time – substantial and significant time – where allegations of denigration of one party to the other party through child – parental conflict – decreasing the impact of parental conflict upon child Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(3), 60DAA Cases cited: Australian Securities and Investments Commission v Rich [2009] NSWSC 1229
Blatch & Archer [1774] 98 ER 969
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Lavell & Lavell [2012] FamCA 34
MRR & GR [2010] HCA 4; 240 CLR 461
Division: Division 2 Family Law Number of paragraphs: 212 Date of hearing: 1-2 July 2021 Counsel for the Applicant: Mr G Williams Solicitor for the Applicant: Glynn Williams Legal Counsel for the Respondent: Ms T Freeman Solicitor for the Respondent: Bishops Counsel for the Independent Children's Lawyer: Ms C Gibson Solicitor for the Independent Children's Lawyer: Charmaine Gibson ORDERS
LNC 628 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WEIMANN
Applicant
AND: MR WEIMANN
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
23 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.All previous Parenting Orders be discharged.
2.The Mother, Ms Weimann (‘the Mother’) and the Father, Mr Weimann (‘the Father’) have equal shared parental responsibility for the child X born in 2014 (‘the child’).
3.The child live with the Mother.
4.The child spend time and communicate with the Father as follows:
(a)In Week 1, during school term, from Thursday after school until 5:00 p.m. the following Sunday;
(b)In Week 2, during school term, from Thursday after school until the commencement of school Friday or 3:00 p.m. if a non-school day;
(c)During school holidays, the Father is permitted to extend his weekend time by adding one or two nights to the Father’s time in accordance with paragraph 4(a) above, on up to four occasions in each year, but only once in each term holiday, subject to giving the Mother at least three weeks’ notice in writing of his intention to do so;
(d)If the child is not with either the Mother or Father on the morning of his birthday, that parent shall be permitted to telephone the child at a reasonable time on that morning;
(e)On the weekend of Father’s Day, if the child is not otherwise in the Father’s care, then from 5:00 p.m. on the Saturday before Father’s Day until 5:00 p.m. on Father’s Day;
(f)For Christmas in every odd numbered year from 10:00 a.m. on 24 December until 10:00 a.m. on 27…
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CaseChat Overview and Summary
The court was required to decide on the specific time-sharing schedule for the child during the school term, particularly focusing on the period from Thursday to Sunday in Week 1. Additionally, the court needed to address the broader parenting arrangements, including the equal sharing of parental responsibilities, the living arrangements for the child, and measures to mitigate the impact of parental conflict. The court also had to consider the allegations of denigration and the need to promote a meaningful relationship between the child and both parents.
The court determined that both parents would have equal shared parental responsibility for the child, and the child would primarily live with the mother. The time-sharing arrangement was set to ensure substantial and significant time for both parents, with specific provisions for weekends and school holidays. The court emphasised the importance of reducing parental conflict and preventing any denigration of one parent by the other. Detailed provisions were made for communication between the parents and the child, including specific times for phone calls and the use of technology to facilitate communication. The court also mandated that both parents refrain from consuming alcohol when the child was in their care.
The final orders of the court included detailed arrangements for time-sharing, communication, and the return of items between parents. The court restrained the father from consuming alcohol while the child was in his care and mandated that both parents refrain from denigrating the other in the presence of the child. The orders also included provisions for the exchange of school notices and reports and attendance at school events.
Orders
Orders of the court
LNC 628 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS WEIMANN
Applicant
AND:
MR WEIMANN
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
23 SEPTEMBER 2021
THE COURT ORDERS THAT:
1. All previous Parenting Orders be discharged.
2. The Mother, Ms Weimann (‘the Mother’) and the Father, Mr Weimann (‘the Father’) have equal shared parental responsibility for the child X born in 2014 (‘the child’).
3. The child live with the Mother.
4. The child spend time and communicate with the Father as follows:
(a) In Week 1, during school term, from Thursday after school until 5:00 p.m. the following Sunday;
(b) In Week 2, during school term, from Thursday after school until the commencement of school Friday or 3:00 p.m. if a non-school day;
(c) During school holidays, the Father is permitted to extend his weekend time by adding one or two nights to the Father’s time in accordance with paragraph 4(a) above, on up to four occasions in each year, but only once in each term holiday, subject to giving the Mother at least three weeks’ notice in writing of his intention to do so;
(d) If the child is not with either the Mother or Father on the morning of his birthday, that parent shall be permitted to telephone the child at a reasonable time on that morning;
(e) On the weekend of Father’s Day, if the child is not otherwise in the Father’s care, then from 5:00 p.m. on the Saturday before Father’s Day until 5:00 p.m. on Father’s Day;
(f) For Christmas in every odd numbered year from 10:00 a.m. on 24 December until 10:00 a.m. on 27 December;
(g) For Easter during every even numbered year from 10:00 a.m. on Good Friday until 10:00 a.m. on Easter Monday; and
(h) Such further or alternate times as may be agreed between the parties in writing.
5. Notwithstanding the above Orders the child spend time with the Mother as follows:
(a) On the weekend of Mother’s Day, in the event that the child is otherwise in the Father’s care, the child shall be returned to the Mother at 5:00 p.m. on the Saturday before Mother’s Day;
(b) For Christmas in even numbered years from 10:00 a.m. on 24 December until 10:00 a.m. on 27 December;
(c) For Easter in odd numbered years from 10:00 a.m. Good Friday until 10:00 a.m. Easter Monday; and
(d) Such further times as may be agreed between the parties in writing.
6. In the event that the child spends more than 3 consecutive nights with the Father, the Mother may telephone or Facetime the child at or about 6:30 p.m. on the 3rd night with the Father to facilitate the call to the child’s telephone by ensuring that the telephone is fully charged, with credit and available to the child.
7. Both parties shall ensure that they keep the other party informed of their current telephone numbers and email addresses.
8. Each party shall communicate with the other by way of email or the use of an agreed parenting App, other than for necessary changes to handover which shall be communicated by text message or, in the event of an emergency, by telephone call.
9. In the event that the child suffers any accident, injury or illness requiring medical attention whilst in the care of one parent, that parent shall notify the other as soon as reasonably practicable.
10. Each parent shall authorise any medical or other healthcare professional who is consulted in relation to the child to speak to both parents about the child’s medical or other health issues.
11. In the event that the child is engaged in an agreed weekend sport, or has been invited to activities such as children’s birthday parties, both parties shall ensure that the child is able to participate in those sporting and other social activities.
12. Unless otherwise agreed in writing, handovers on a school day shall take place at school.
13. Unless otherwise agreed in writing, handovers on a non-school day are to be conducted as follows:
(a) With the child being returned by the Father or his agent to the Mother’s home, with the child moving from the Father’s or his agents vehicle into the Mother’s care; and
(b) The Father is restrained from alighting from his vehicle to effect the changeover unless an emergency relating to the child requires him to leave his vehicle.
14. The Father is restrained from returning the child to the Mother in his school uniform when handovers occur on Sundays, or any other day and time at which handover occurs where it would be inappropriate for the child to be dressed in his school uniform.
15. Unless otherwise agreed in writing, at the conclusion of a period that the child has been in a parents care, that parent shall return to the other party, via the child, at handover, any clothes and/or other items originally purchased by the other party for the child.
16. The child shall be permitted to communicate with the other parent by telephone or by Facetime at any reasonable time.
17. The Father be and is hereby restrained from consuming alcohol whilst the child is in his care, or in the 12 hour period prior to the child coming into his care.
18. Both the Mother and the Father are entitled to receive copies of any school Notices and Reports and to attend any school events, including sports days and assemblies that are ordinarily attended by parents.
19. In the event that either party receives a text message, email or missed phone call from the other parent, they will provide an acknowledgement and response as soon as practicable.
20. Neither party shall denigrate the other to or in the presence or hearing of the child, nor shall either party allow any other person to do so.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
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Evidence Before The Court
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Decision
Reasons for decision
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