FAMILY COURT OF AUSTRALIA
| WOODS & CARMAN | [2019] FamCA 957 |
| FAMILY LAW – CHILDREN – CONSENT ORDERS – Order that child live with the mother – Order that the child spend time with the father as agreed and failing agreement as set out in the Orders – Order that parents have equal shared parental responsibility for the child – Orders that both parents are able to communicate with the child when the child is not in their care – Orders allowing the child to travel, including international travel – Specific Issues Orders. |
| Family Law 1975(Cth) s 60B and s 60CC |
| J v C in [1969] 1 ALL E.R. 824 Donnell & Dovey [2010] Fam CAFC 15 Yamada & Cain [2013] FamCAFC 64 |
| APPLICANT: | Ms Woods |
| RESPONDENT: | Mr Carman |
| INDEPENDENT CHILDREN’S LAWYER: | Evans Family Lawyers |
| FILE NUMBER: | WOC | 172 | of | 2017 |
| DATE DELIVERED: | 27 November 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 27 November 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: |
| SOLICITOR FOR THE APPLICANT: | Our Lawyers |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: | E Town Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Evans Family Lawyers |
Orders
BY CONSENT orders be made in accordance with the minute of consent order signed by the parties and the Independent Children’s Lawyer, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975(Cth) , the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All extant applications be dismissed.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS DIRECTED
A copy of the Reasons for these orders be taken out and placed on the Court file.
Exhibit “1”
RECITALS
A.The Applicant is the Mother and the Respondent is the Father of the child, X born … 2003 (‘the child’).
B.The parents were married … 2004 and separated on a final basis on 15 September 2013.
C.The parents have engaged with Dr B for Reportable Intensive Family Therapy since February 2019.
D.The parents have now reached an agreement to resolve these parenting proceedings in accordance with the following Parenting Consent Orders.
ON A FINAL BASIS BY CONSENT IT IS ORDERED:
The parties have equal shared parental responsibility for the child X born … 2005.
The parties are not required to consult with each other when making day to day decisions while the child is in their care.
The child live with the Mother.
The child spend time with the Father at all times as agreed between the parents,…
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- Woods and Carman [2019] FamCA 957
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- [2019] FamCA 957
- Decision Date
CaseChat Overview and Summary
The court was required to determine the terms of parenting orders that would govern the child's residence, time spent with each parent, communication between parents, and various other aspects of their co-parenting relationship. These included provisions for day-to-day decision-making, school holidays, birthdays, changeovers, communication protocols, restraints on parental conduct, overseas travel, and the exchange of information regarding the child's education and well-being.
Benjamin J made orders by consent in accordance with a minute signed by the parties and the Independent Children’s Lawyer. The orders established equal shared parental responsibility, with the child to live with the Mother and spend time with the Father at times to be agreed, or otherwise in accordance with a detailed schedule for school terms, holidays, and specific occasions. The orders also included provisions for communication, restraints on negative commentary about each other, and detailed arrangements for overseas travel, including the retention and release of the child's passport. Further orders addressed mediation, emergency contacts, participation in co-curricular activities, information sharing, and notification of serious injury or illness. All extant applications were dismissed, and each party was to bear their own costs.
Orders
Orders of the court
1.
BY CONSENT orders be made in accordance with the minute of consent order signed by the parties and the Independent Children’s Lawyer, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.
2.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975(Cth) , the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
3.
All extant applications be dismissed.
4.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS DIRECTED
5.
A copy of the Reasons for these orders be taken out and placed on the Court file.
Exhibit “1”
RECITALS
A. The Applicant is the Mother and the Respondent is the Father of the child, X born … 2003 (‘the child’).
B. The parents were married … 2004 and separated on a final basis on 15 September 2013.
C. The parents have engaged with Dr B for Reportable Intensive Family Therapy since February 2019.
D. The parents have now reached an agreement to resolve these parenting proceedings in accordance with the following Parenting Consent Orders.
ON A FINAL BASIS BY CONSENT IT IS ORDERED:
1.
The parties have equal shared parental responsibility for the child X born … 2005.
2.
The parties are not required to consult with each other when making day to day decisions while the child is in their care.
3.
The child live with the Mother.
4.
The child spend time with the Father at all times as agreed between the parents, but failing agreement then at a minimum as follows:-
(a) During all D School gazetted school term periods from after school on Friday to before school on Monday commencing on the first Friday of each NSW school term and each alternate weekend thereafter;
(b) During Term 1 and Term 3 of the D School Gazetted School Holiday periods:
(i) In all years ending in an even number, for the first half of each school holiday period, commencing at the conclusion of school on the last day the child attends school and concluding at 8:00pm on the day that is the mid-point of the holiday period and if there is an uneven number of days in the holiday period, the child shall spend the extra day with the Father.
(ii) In all years ending in an odd number, for the second half of each school holiday period, commencing at 9:00am on the day that is the mid-point of the holiday period and concluding at 8:00pm on the day immediately prior to the commencement of the next school term.
(c) During Term 2 of the D School Gazetted School Holiday period:
(i) In even numbered years for a period of two weeks commencing at 9:00 on the day following the last day of school term and concluding at 8:00pm on the day that is the fourteenth day after the commencement of time;
(ii) In odd numbered years, for a period of one week commencing from 9:00 am on the 15th day of the school holiday period at the conclusion of term 2 and concluding at 8:00 pm on the day immediately prior to the commencement of the next school term.
(d) During the D School December/January gazetted school holiday period for a block period of four weeks as agreed between the parties, and failing agreement as follows:
(i) In odd years, for the second half of each school holiday period, commencing at 9:00am on the day that is the mid-point of the holiday period and concluding at 8:00pm on the day immediately prior to the commencement of the next school term.
(ii) In even numbered years, for the first half of the school holiday period commencing at the conclusion of school on the last day the child attends school and concluding at 8:00pm on the day that is mid-point of the holiday period.
(e) For Christmas:
(i) In all years ending in an even number, from 12:00 noon on Boxing Day until 12:00 noon on 28 December;
(ii) In all years ending in an odd number, from 12:00 noon on Christmas Eve until 12:00 noon on Boxing Day.
(f) On the child’s birthday, from the conclusion of school (or 3:00pm) until 8:00pm if the child’s birthday falls on a school day and for a period of four (4) hours as may be agreed between the parties if the child’s birthday falls on a non-school day and from 4:00pm until 8:00pm in the absence of agreement. That the child spend time with the Father from 9.00 am to 5.00 pm on Father’s Day and that any provision for time under this order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
(g) That the child spend time with the Mother from 9.00 am to 5.00 pm on Mother’s Day and that any provision under this order that is inconsistent with this paragraph be suspended.
(h) On any other time or occasion as may be requested by the child or agreed between the parties in writing.
Changeover
5.
For the purpose of Order 4 herein, changeover shall occur at the child’s school for the purposes of Order 4(a) and as otherwise agreed between the parties in writing and in the absence of agreement, as follows:
(a) The Mother to deliver the child to the father’s residence in E Town at the commencement of time; and
(b) The Father to return the child to the mother’s residence at G Street, E Town the conclusion of time.
Communication
6.
From the commencement of Order 8 herein, both parties be at liberty to contact the child by phone at reasonable times and with reasonable frequency while the child is in the other party’s care, provided that such communication does not occur more frequently that on one occasion during a 24 hour period and is child focused on supporting the agreed parenting arrangements pursuant to these orders and maintenance of their application.
7.
All communication between the parties is to be in writing through text message or email or as otherwise agreed between the parties unless in the event of emergency when the parties shall communicate by text message or telephone call. The parties will ensure that all communication is civil and will limit their discussions to matters retaining to the facilitation of these Orders or the long-term care of the child are required by these Orders.
Restraints
8.
Both parents be restrained from the following:
(a) Speaking or permitting any other person to speak to or about the other parent or their partner in a negative, offensive or unpleasant fashion in the presence or hearing of the child; and
(b) Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the child or permitting any other person to do so.
(c) Making any arrangement with the Child that will interfere with the operation of these orders.
(d) Discussing with any other person any parental matters relative to any changes that should first be discussed with the other parent.
(e) Relocating the child’s primary residence further than a 25 kilometre radius outside of the town of E Town prior to the child attaining the age of 16 years without the prior written consent of the other parent.
(f) Allowing the child to engage in inappropriate games or watch movies that are not rated the child’s age.
(g) Discouraging the child from participating in activities proposed by the other parent, including but not limited to overseas travel.
Overseas Travel
9.
From the time the child turns 15 years of age, during anytime the child would otherwise be living with his parents, each parent be permitted to travel outside of the Commonwealth of Australia with the child for holidays provided that the Department of Foreign Affairs and Trade does not advise against travel to such a destination and, the proposed destination is party to the Hague Convention and provided the Commonwealth of Australia maintains a High Commission in the Country of proposed travel.
10.
Unless otherwise agreed, the Father be permitted to travel outside of the Commonwealth of Australia with the child to the country of New Zealand from 15 January 2020 to 24 January 2020.
11.
In the event the parties intend to travel interstate or internationally during a period in which the child is to be in their respective care, the party intending to travel is to advise the other of his or her departure dates within 7 days of his or her aeroplane ticket purchase or travel interstate or internationally.
12.
In the event either parent takes the child outside of the Commonwealth of Australia in accordance with Orders 9 and 10 herein, the travelling parent must provide written notice to the other party at the earliest opportunity but no less than 21 days in advance of the departure date and arrival date back into Australia and notify the other parent of who the child will be travelling with, the address and telephone number/s of the place/s where the child will be staying during the holidays and provide to the other parent:-
(a) copies of hotel documents and receipts of where the child will be staying;
(b) the child’s flight details, booking confirmation and itinerary. (‘the required information’).
13.
The Mother shall retain the child’s passport.
14.
In the event the Father seeks to exercise such overseas travel with the child pursuant to Orders 9 and 10 herein, the Mother shall release the child’s passport to the Father not less than fourteen days (14) days prior to the Father’s proposed travel provided the Mother has received the Father’s required information pursuant to Order 12 herein and the Father shall return the child’s passport to the Mother within five (5) days of his return to the Commonwealth of Australia.
THE COURT NOTES THAT
Neither the mother nor the father will unreasonably withhold any travel with Dominic and either parent during any block time Dominic spends with either parent.
OTHER ORDERS
15.
In the event the parties are unable to reach an agreement with respect to the child’s residence, schooling or other co-parenting matter, the parties are to attend mediation with Relationships Australia or other suitably qualified provider.
16.
Both parents shall be listed as emergency contacts at any school, hospital or doctor attended by the child and both parties shall take all necessary steps required to list both parents as emergency contacts within 7 days of the date of these Orders.
17.
Both parents shall be at liberty to attend the child’s co-curricular and extra- curricular activities, including those that fall outside of the time that the child may be in their care and such activities shall include academic, social and sporting commitments.
18.
Both parents shall take all reasonable steps to facilitate the child’s participation in any extra-curricular activities that may be engaged in.
19.
Each party shall be entitled to receive the following information in respect of the child:
(a) Copies of any reports, notices, advices or other communications in relation to the child’s education and well-being;
(b) Copies of all school reports, reports on progress and behavioural issues and other school circulars in relation to the child;
(c) Copies of all notices received from the child’s school and details of functions, parent/teacher nights or meetings involving the child, and any other activity to which parents are invited;
(d) Information as to medical treatment (including counselling) received by the child;
(e) Information as to the child’s co-curricular and extra-curricular activities including the names of the clubs, associations or activities to which the child is enrolled.
20.
Both parents shall notify the other as soon as practicable, and in any event, within 2 hours of any serious injury or illness suffered by the child whilst in that parent’s care. The parent notifying the other shall provide full and proper details to the other parent of any such emergency, including the child’s whereabouts, physical state and well-being, names and phone number of any professional persons who are treating the child or who are otherwise relatively involved in such emergency.
21.
There be no Order as to costs, with the intention that each party pay their own costs of and incidental to these proceedings.
22.
That pursuant to Section 65DA(2) and Section 62(b), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist to adjust and comply with an Order are set out in the attached Family Law Courts fact sheet entitled “Parenting Orders – obligations, consequences and who can help,” and those particulars are incorporated in these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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