FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Williamson & Parrish (No 2) [2023] FedCFamC2F 554
File number: MLC 3792 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 15 May 2023 Catchwords: FAMILY LAW – final parenting orders – high conflict family – whether one parent should have sole parental responsibility for health and education – whether the children’s living arrangements should be substantial and significant time or equal time – whether one parent should be made to purchase a set of school uniforms – whether one parent should be made to fix their water supply – whether there is power to make the school uniform and water supply orders in parenting only proceedings – whether one parent should be made to assist the other with the application for international passports – whether there should be an injunction restricting time with a grandparent. Legislation: Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64B(2), 65DAA, 65DAC
Cases cited: Adamson & Adamson (2014) FLC 93-622
Fox v Percy (2003) 214 CLR 118
Lennon & Lennon [2011] FamCA 571
Rice v Asplund (1979) FLC 90-725
Division: Division 2 Family Law Number of paragraphs: 152 Date of hearing: 26 – 27 April 2023 Place: Melbourne Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Ms McCreadie Solicitor for the Respondent: Lander & Rogers ORDERS
MLC 3792 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WILLIAMSON
Applicant
AND: MS PARRISH
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
15 MAY 2023
Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 17 May 2023.
THE COURT ORDERS BY CONSENT THAT:
1.All extant parenting orders be discharged.
AND THE COURT ORDERS THAT:
2.The Mother have sole parental responsibility regarding health and education, but not for the issue of choice of school, and otherwise the parents have equal shared parental responsibility for X born in 2011 and Y born in 2012 (together ‘the children’).
3.With respect to long term decisions of health and education to be made about the children, or either of them, unless agreed:
(a)save in emergency, each parent shall advise the other by email of her or his proposal relating to the children or any of them in a timely manner, then;
(b)if the other parent wishes to comment on the proposal, they shall, within seven (7) days after the receipt of the proposal, advise the other parent by email of her or his views;
(c)upon receipt of any comment or proposal by the Father, the Mother shall give consideration to his views;
(d)after the Mother has considered the Father’s proposal or comments, she shall make a decision and advise the Father by email or SMS text message of the outcome as soon as practical after making that decision; and
(e)all communication…
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CaseChat Overview and Summary
The court determined that the mother should have sole parental responsibility for health and education, but not for the issue of choice of school, while the parents had equal shared parental responsibility for the children otherwise. The court set out detailed arrangements for the children's living arrangements, specifying a fortnightly cycle during school terms and different arrangements during school holidays. The court also ordered the father to repair the water supply at his home, to purchase a set of school uniforms for the children, and to assist the mother with obtaining passports for the children and herself. The court further ordered that the parents complete a parenting seminar program and refrain from discussing the proceedings with the children. The court noted that the particulars of the obligations and consequences of contravening these orders were set out in an annexure to the orders.
The court ordered that all extant parenting orders be discharged and made the orders as set out in the judgment. The form of the order is subject to the entry in the Court's records and may be subject to review or variation under certain rules.
Orders
Orders of the court
THE COURT ORDERS BY CONSENT THAT:
1. All extant parenting orders be discharged.
AND THE COURT ORDERS THAT:
2. The Mother have sole parental responsibility regarding health and education, but not for the issue of choice of school, and otherwise the parents have equal shared parental responsibility for X born in 2011 and Y born in 2012 (together ‘the children’).
3. With respect to long term decisions of health and education to be made about the children, or either of them, unless agreed:
(a) save in emergency, each parent shall advise the other by email of her or his proposal relating to the children or any of them in a timely manner, then;
(b) if the other parent wishes to comment on the proposal, they shall, within seven (7) days after the receipt of the proposal, advise the other parent by email of her or his views;
(c) upon receipt of any comment or proposal by the Father, the Mother shall give consideration to his views;
(d) after the Mother has considered the Father’s proposal or comments, she shall make a decision and advise the Father by email or SMS text message of the outcome as soon as practical after making that decision; and
(e) all communication between the parties be in respectful terms.
4. That during school terms the children live with the Father and the Mother in a fortnightly cycle as follows:
(a) with the Father:
(i) in week one, from the conclusion of school or 3:30pm on Thursday until the conclusion of school or 3:30pm on Monday and each alternate week thereafter SAVE THAT in the event that the Monday is a public holiday the Father's time shall be extended to 7:00pm on the public holiday;
(ii) in week two from the conclusion of school or 3:30pm on Wednesday until 3:30pm on Thursday and, each alternate week thereafter;
(iii) with weeks one and two to continue as the dates from the previous cycles under previous orders;
(b) at any other time as agreed between the parties in writing; and
(c) otherwise live with the Mother.
AND THE COURT ORDERS BY CONSENT THAT:
5. That arrangements set out in paragraph 4 herein are suspended during all school holiday periods, and shall resume at the commencement of each new school term as if the sequenced weekends had continued over the school holiday period.
6. Noting that the children attend different private schools, the children shall spend time with each party during the school holidays as follows:
(a) During Term 1 school holidays the Father shall have the first half of the holidays in odd numbered years and the second half in even numbered years with the Mother to have the second half of the holidays in odd numbered years and the first half in even numbered years.
SAVE THAT for the first term holidays each year the parties shall alternate the week containing the Easter holiday period (being from the conclusion of school or if not a school day from 5:00pm Holy Thursday until 5:00pm Easter Monday inclusive) such that the parent who had the children in their care for Easter holiday period in the preceding year shall not have them in their care for the portion of the term 1 holidays containing the Easter holiday period
(b) For one half of the Term 2 and 3 school holidays with the Father to have the first half in odd numbered years and the second half in even numbered years and the Mother to have the second half in odd numbered years and the first half in even numbered years and for the purposes of this order the school holiday period for both children shall commence at the conclusion of school on the last day of term (being the earlier date of the two schools if they fall on different dates) and conclude at the commencement of school on the first day of the new school term (being the later date of the two schools if they fall on different dates) with changeover to occur at 5.00 pm on the middle day of the holiday period;
(c) For one half of the long summer school holidays as follows:
(i) In 2023/24 and each alternate year thereafter:
A. With the Mother from the conclusion of school on the last day of Term 4 (being the earlier date if the two schools differ) until 10.00 am on 11 December;
B. With the Father from 10.00am on 11 December until 10.00am 12.00pm on 25 December (Christmas Day)
C. With the Mother from 10.00am 12.00pm on 25 December (Christmas Day) until 5.00pm on 4 January;
D. With the Father from 5.00pm on 4 January until 5.00pm on 15 January;
E. With the Mother from 5.00pm on 15 January to the commencement of school in Term 1 (being the later date if the two schools differ);
(ii) In 2024/25 and each alternate year thereafter:
A. With the Father from the conclusion of school on the last day of Term 4 (being the earlier date if the two schools differ) until 10.00 am on 11 December;
B. With the Mother from 10.00am on 11 December until 10.00am 12.00pm on 25 December (Christmas Day)
C. With the Father from 10.00am 12.00pm on 25 December (Christmas Day) until 5.00pm on 4 January;
D. With the Mother from 5.00pm on 4 January until 5.00pm on 15 January;
E. With the Father from 5.00pm on 15 January to the commencement of school in Term 1 (being the later date if the two schools differ); and
(d) For the purpose of this order school term holidays shall commence at the conclusion of school on the last day of term (being the earlier date if the two schools differ) and conclude at 3:30pm on the 1st day of the new school term (being the later date if the two schools differ), with changeover to occur at 5:00pm on the middle day of the holiday period.
AND THE COURT ORDERS THAT:
7. That the children (or each of them) shall not be required to spend time with the parties during such time that they may be attending a school program (such as camps, exchanges, excursions or other such programs) and to the extent this reduces the time with either parent during school holidays, then the school holiday arrangement be varied so that the remaining part of the school holidays be divided equally between the parents.
8. That the children be permitted to communicate with the other parent and their siblings by telephone (including calls and/or messaging) at all such times that they wish and the children be given privacy during such communication and each parent be and is hereby restrained from being present during such communication or insisting on reading such communication.
AND THE COURT ORDERS BY CONSENT THAT
9. That if the children are not already in the Father’s care on Father’s Day they spend time with the Father by agreement, and failing agreement from 10:00am Father's Day until 6:00pm on Father’s Day.
10. That if the children are not already in the Mother’s care on Mother’s Day they spend time with the Mother by agreement, and failing agreement from 10:00am Mother’s Day until 6:00pm on Mother’s Day.
11. On the children's birthdays by agreement, and in the absence of agreement, from the conclusion of school until 7.00pm on a school day, and from 12.00pm until 5.00pm on a non-school day, such times to be exercised by the parent who does not have the children in their care.
12. That in the event that changeover does not occur at school, then the Mother collect the children from the Father's residence at the conclusion of his time and the Father collect the children from the Mother's residence at the commencement of his time.
13. That each parent be at liberty to travel with the children overseas, PROVIDED THAT:
(a) the travelling parent provide the non-travelling parent with written notice via letter or email of an intention to travel overseas 28 days prior to the date of the intended travel;
(b) the travelling parent provide the non-travelling parent with a detailed itinerary including copies of electronic or other return airline tickets prior to the intended travel;
(c) the travelling parent provides details in writing of accommodation, including address and telephone number, of where the children will be residing during the trip, prior to the date of intended travel; and
AND THE COURT ORDERS THAT:
(d) wherever possible such travel should not occur during term times. However, in the event that travel is sought during term times that it only be undertaken with the consent of the non-travelling parent.
14. That the Mother be permitted to travel overseas with the children for 3 weeks in September/October 2025 with dates to be advised and with such time to include but is not limited to her half of the Term 3 school holidays.
15. That within 7 days of any request made by the Mother, the Father do all acts and things and sign all documents necessary to:
(a) Enable the Mother to obtain and/or renew Australian passports for the children or either of them at her expense;
(b) Enable the Mother to obtain Country E passports for each of the children; and
(c) Enable the Mother to obtain an Country E passport for herself;
and the Mother shall hold the children’s passports.
AND THE COURT ORDERS BY CONSENT THAT:
16. Each party shall ensure that the children attend all agreed extra-curricular activities and neither will enrol the children in extra-curricular activities that take place during the other parent's time without their prior written approval.
17. That each parent shall do all things and sign all documents necessary to authorise each parent:-
(a) to attend any school attended by the children and to communicate with teachers and school staff in relation to the children;
(b) to receive copies of school reports, school photographs and notices usually provided to the parents, at their expense respectively (if any);
(c) to attend all school functions and activities, including·extra-curricular activities, to which parents are invited to attend; and
(d) to provide a copy of these Orders to any school attended by the children.
18. That each of the parties:
(a) immediately inform the other in the event that either child suffers any serious injury or illness;
(b) forthwith inform the other of any specialist medical practitioner or psychologist/counsellor with whom either child is scheduled to consult with or has consulted with, and authorise such practitioner to communicate with the other parent in respect of matters concerning the child's health and to provide them with copies of all reports, notices, correspondence and any other documents ordinarily provided to parents and within 24 hours notify the other parent of any general practitioner they have attended upon, the reason for the attendance, any treatment prescribed and authorise the other parent to speak with that practitioner about the child's attendance.
19. That each party shall make available to the other·party any medications prescribed for the children by a medical practitioner and the other party ensure that medication is administered to the relevant child in accordance with the requirements or prescription of the medical practitioner, SAVE THAT long term medication and ear plugs to be the responsibility of each parent while the children are in their household.
20. That each parent keep the other informed at all times of their residential address, landline (if applicable) and mobile telephone numbers and email address(es) and notify the other immediately there is any change to those details.
21. Whilst denying the necessity for this Order each party, their servants and agents be hereby restrained from discussing these proceedings or the content of any document in or intended for use in these proceedings to, with or in the presence of or hearing of the children or either of them.
AND THE COURT ORDERS THAT:
22. The Father forthwith and within 28 days of the date of these Orders do all acts and things to ensure that he has repair the water pipe to his home to ensure water supply 24/7 and he provide evidence of same to the Mother when repairs are completed.
23. The Father do all acts and things to ensure that he is in possession of a set of appropriate school uniforms for the children or each of them (including sports uniforms, but not school blazers and school shoes) at his expense.
24. The parents each forthwith enrol in the ‘Parenting After Separation Seminar Program’ facilitated by D Family Centre Victoria at their own cost, complete that program within 6 months of these orders, and provide written proof of enrolment and completion of same to the other. For more details parties can visit:
https://www.relationshipsvictoria.org.au/child-parenting-courses/pass/
AND THE COURT NOTES THAT:
A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B. These orders have been amended pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), known as the slip rule. Discussions in Court on 26 April 2023 at around 2.27pm and 3.44pm indicated that the changeover times on Christmas Day was agreed to be at 12.00pm rather than 10.00am. These orders originally included the proposed 10.00am time in error.
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
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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