FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WU & HEATON and HURST & HEATON | [2009] FMCAfam 1112 |
| FAMILY LAW – Parenting – two separate applications consolidated – previous partners of respondent mother sought parenting orders with respect to their biological children – mother diagnosed with alcohol abuse disorder – who children should live with – whether children should be separated – whether equal shared care appropriate – capacity of fathers to care for their children with their employment responsibilities – children to spend significant and substantial time with fathers – whether interim or final orders. |
| Evidence Act 1995 (Cth), s.128 Family Law Act 1975 (Cth), Part VII Family Law Rules 2004 (Cth), rule 15.66 |
| R v R (Children’s Wishes) (2000) 25 Fam LR 712; [2000] FamCA 43 Harrison and Woollard (1995) 18 Fam LR Doyle and Doyle (1992) FLC 92-286 H and H (2003) FLC 93-168 Goode and Goode (2006) 36 Fam LR 422; [2006] FamCA 1346 |
| Applicant: | DR WU |
| Respondent: | MS HEATON |
| File Number: | SYC 1805 of 2009 |
| Applicant: | MR HURST |
| Respondent: | MS HEATON |
| File Number: | SYC 1836 of 2009 |
| Judgment of: | Pascoe CFM |
| Hearing dates: | 27, 28 & 31 July 2009 |
| Date of Last Submission: | 31 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2009 |
REPRESENTATION
| File Number: | SYC 1805 of 2009 |
| Counsel for the Applicant: | Mr Friedlander |
| Solicitors for the Applicant: | Lawyers Central Pty Ltd |
| Counsel for the Respondent: | Mr Schonell |
| Solicitors for the Respondent: | Michael Conley Lawyers |
| File Number: | SYC 1836 of 2009 |
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Mr Schonell |
| Solicitors for the Respondent: | Michael Conley Lawyers |
ORDERS
SYC 1805 of 2009
That the Husband, Dr Wu, and the Wife, Ms Heaton, have equal shared parental responsibility for making decisions about long term issues in relation to [Y] born in 2003 and [Z] born in 2001 (hereinafter referred to as ‘the children’ in these orders).
That the children live with the Husband as follows:-
During term time
(a)from the conclusion of school on Thursday until the commencement of school on the following Monday in each alternate week commencing from the first Thursday in each school term; and
(b)from the conclusion of school on Wednesday until the commencement of school the following Thursday morning in each alternate week commencing from the second Wednesday in each school term.
School Holiday Periods
(c)For one half of each of the school holiday periods such period to be agreed between the parents in writing and failing agreement the Husband to spend time with the children during the first half of the holiday period to start after the end of the school term.
Significant and Special Occasions
(d)In the event that the children are not otherwise living with the Husband on Father’s Day in accordance with these Orders, then the children shall live with the Husband on the weekend which includes Father’s Day from 9.00 a.m. on the Saturday immediately preceding Father’s Day until 4.00 p.m. on Father’s Day.
(e)In the event that the…
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- Case
- [2009] FMCAfam 1112
- Decision Date
CaseChat Overview and Summary
The court had to address several key legal issues, including the determination of equal shared parental responsibility for long-term decision-making concerning the children. Additionally, the court had to create a detailed parenting schedule that balanced the time the children would spend with each parent during school terms and holidays, as well as special occasions and significant events. The court also had to consider provisions to ensure the children's safety and well-being, including restrictions on the parents' ability to remove the children from their schools and to ensure that the children were not exposed to any parental conflict or abuse.
The Family Court considered the best interests of the children as the paramount concern in its decision-making process. It found that both sets of parents were capable of providing a stable and loving environment, but it was crucial to establish a clear and predictable routine that would minimise disruption to the children's lives. The court's detailed orders provided a structured parenting plan that outlined specific times during which each parent would have custody of the children. It also included provisions for special occasions and events, ensuring that both parents had the opportunity to celebrate significant milestones with their children. Furthermore, the court mandated regular alcohol screening for one of the mothers to ensure the children's safety, reflecting a concern for potential substance abuse issues.
The final orders granted equal shared parental responsibility to both sets of parents for making long-term decisions about the children's welfare. The detailed parenting schedules were established, delineating the specific times during which the children would reside with each parent. Special provisions were made for significant occasions, holidays, and events to ensure that both parents could participate in the children's lives. Additionally, the court imposed restrictions on the removal of children from their schools and required both parents to refrain from denigrating each other in the children's presence. The court also mandated regular alcohol screening for one of the mothers and outlined the consequences for non-compliance with these orders.
Orders
Orders of the court
SYC 1805 of 2009
1.
That the Husband, Dr Wu, and the Wife, Ms Heaton, have equal shared parental responsibility for making decisions about long term issues in relation to [Y] born in 2003 and [Z] born in 2001 (hereinafter referred to as ‘the children’ in these orders).
2.
That the children live with the Husband as follows:-
During term time
(a) from the conclusion of school on Thursday until the commencement of school on the following Monday in each alternate week commencing from the first Thursday in each school term; and
(b) from the conclusion of school on Wednesday until the commencement of school the following Thursday morning in each alternate week commencing from the second Wednesday in each school term.
School Holiday Periods
(c) For one half of each of the school holiday periods such period to be agreed between the parents in writing and failing agreement the Husband to spend time with the children during the first half of the holiday period to start after the end of the school term.
Significant and Special Occasions
(d) In the event that the children are not otherwise living with the Husband on Father’s Day in accordance with these Orders, then the children shall live with the Husband on the weekend which includes Father’s Day from 9.00 a.m. on the Saturday immediately preceding Father’s Day until 4.00 p.m. on Father’s Day.
(e) In the event that the children are not otherwise living with the Husband on the husband’s birthday then the children shall spend time with the Husband from after school on the day of his birthday until before school the following day or if his birthday falls on a weekend, then from 9.00 a.m. on Saturday until 6.00 p.m. on the following Sunday.
(f) In the event that the children are not otherwise living with the Husband on either of the children’s birthdays in accordance with these orders, then the children shall spend time with the Husband from after school until 6.00 p.m. should the birthday fall on a week day or from 9.00 a.m. until mid day should the birthday fall on a weekend.
(g) On Christmas Day in 2009 from 3:00pm Christmas Day until 5:00pm Boxing Day.
3.
That at all other times the children live with the Wife.
4.
That notwithstanding any of the provisions to the contrary contained in order (3) above:
(a) In the event that the children are not otherwise living with the Wife on Mother’s Day then the children shall live with the Wife on the weekend which includes Mother’s Day from 9.00 a.m. on the Saturday immediately preceding Mother’s Day until 4.00 p.m. on Mother’s Day.
(b) In the event that the children are not otherwise living with the Wife on the Wife’s birthday from after school on the day of the Wife’s birthday until before school the following day or if the Wife’s birthday falls on a weekend, then from 9.00 a.m. on Saturday until 6.00 p.m. on the following Sunday.
(c) In the event that the children are not otherwise living with the Wife in any given year on either of the children’s birthdays, then the children shall spend time with the Wife from after school until 6.00 p.m. should the birthday fall on a week day or from 9.00 a.m. until midday should the birthday fall on a weekend.
5.
That in the event that either the Husband and Wife have a significant or special event such as a family gathering, christening, wedding or other special event then the Mother and Father shall give notice to the other parent of their desire for the children to spend that time with them and to attend that event and the parents may agree in writing to vary the time that the children are to live with each of them so as to permit the children to attend that event and where a variation to these orders is required then the parents shall agree for make up time.
6.
That the Husband and the Wife may attend the children’s school for the purpose of collection and delivery during their respective residence periods and in relation to any event that parents are invited to, such as a special day, prize day, sports carnivals and parent teacher interviews.
7.
That the Husband and Wife are restrained from removing the children from the [W] School other than in accordance with these orders until the conclusion of their primary education without the written consent of the other parent.
8.
That the Husband and Wife be restrained from denigrating each other within the presence or hearing of the children.
9.
That the Wife attend upon The Sydney Clinic within 24 hours of being requested to do so by the Husband, and the Wife shall do all things necessary to undertake urinalysis and/or a blood test for alcohol screening, with such requests to be no more frequent than once per 7 days collectively with Order (9) in the matter SYC 1836 of 2009. Thereafter the Wife to provide to the Husband’s legal representatives a copy of the results of such test as soon as practicable after same are available.
10.
It being noted that in the event the Wife is unable to attend at The Sydney Clinic at any given time she be permitted to attend an alternate Pathology Clinic for the purpose of testing and furthermore that in the event CDT Testing is not available at that Pathology Clinic the Wife shall undertake such other alcohol screening test as may be available.
11.
That the Husband be responsible for the costs associated with compliance with Orders (9) and (10).
12.
In the event the Wife fails to comply with Orders (9) and (10), the Wife must provide to the Husband or his legal representatives, within 48 hours of the request, an explanation for her failure to comply with the Orders, or any part of the Orders.
13.
That the parties have liberty to restore the matter to the list on 48 hours notice in the event a significant issue concerning the children’s welfare arises, including if the mother resumes consuming alcohol or fails to comply with orders (9) and (10) without reasonable explanation.
14.
That the matter be listed for mention before me on Wednesday 27 October 2010 at 10.00 am.
SYC 1836 of 2009
1.
That the Mother, Ms Heaton, and Father, Mr Hurst, have equal shared parental responsibility for making decisions about long term issues in relation to [X] born in 1996 (herein referred to as “[X]”).
2.
That [X] live with the father as follows:-
During term time
(a) from the conclusion of school on Thursday until the commencement of school on the following Monday in each alternate week commencing from the first Thursday in each school term; and
(b) from the conclusion of school on Wednesday until the commencement of school the following Thursday morning in each alternate week commencing from the second Wednesday in each school term.
School Holiday Periods
(c) For one half of each of the school holiday periods (except for the 2009 Christmas/New Year school holiday period) such period to be agreed between the parents in writing and failing agreement the Father to spend time with [X] during the first half of the holiday period to start after the end of the school term.
(d) During the 2009 Christmas/New Year school holiday period from 9.00 am on Monday 28 December 2009 until 6.00 pm on a date 8 days preceding commencement of the school term in January 2010.
Significant and Special Occasions
(e) In the event that [X] is not otherwise living with the Father on Father’s Day in accordance with these Orders, then [X] shall live with his Father on the weekend which includes Father’s Day from 9.00 a.m. on the Saturday immediately preceding Father’s Day until 4.00 p.m. on Father’s Day.
(f)
In the event that [X] is not otherwise living with the Father on the Father’s birthday then [X] shall spend time with the Father from after school on the day of his birthday until before school the following day or if his birthday falls on a weekend, then from
9.00 a.m. on Saturday until 6.00 p.m. on the following Sunday.
(g) In the event that [X] is not otherwise living with the Father in any given year on [X]’s birthday, then [X] shall spend time with his Father from after school until 6.00 p.m. should the birthday fall on a week day or from 9.00 a.m. until mid day should the birthday fall on a weekend.
(h) On Christmas Day in 2009 from 3:00pm Christmas Day until 5:00pm Boxing Day.
3.
That at all other times [X] live with the Mother.
4.
That notwithstanding any of the provisions to the contrary contained in Order (2) above:
(a) In the event that [X] is not otherwise living with the Mother on Mother’s Day then [X] shall live with the Mother on the weekend which includes Mother’s Day from 9.00 a.m. on the Saturday immediately preceding Mother’s Day until 4.00 p.m. on Mother’s Day.
(b) In the event that [X] is not otherwise living with the Mother on the Mother’s birthday from after school on the day of the Mother’s birthday until before school the following day or if the Mother’s birthday falls on a weekend, then from 9.00 a.m. on Saturday until 6.00 p.m. on the following Sunday.
(c) In the event that [X] is not otherwise living with the Mother in any given year on [X]’s birthday, then [X] shall spend time with the Mother from after school until 6.00 p.m. Should the birthday fall on a week day or from 9.00 a.m. until mid day should the birthday fall on a weekend.
5.
That in the event that either the Mother or Father have a significant or special event such as a family gathering, christening, wedding or other special event then the Mother and Father shall give notice to the other parent of their desire for [X] to spend that time with them and to attend that event and the parents may agree in writing to vary the time that [X] is to live with each of them so as to permit [X] to attend that event and where a variation to these orders is required then the parents shall agree for make up time.
6.
That the Mother and Father may attend [X]’s school for the purpose of collection and delivery during their respective residence periods and in relation to any event that parents are invited to, such as a special day, prize day, sports carnivals and parent teacher interviews.
7.
That the Mother and Father are restrained from removing [X] from [R] other than in accordance with these orders until the conclusion of the 2009 school year without the written consent of the other parent.
8.
That the Mother and Father be restrained from denigrating each other within the presence of hearing of [X].
9.
That the Mother attend upon The Sydney Clinic within 24 hours of being requested to do so by the Father, and the Mother do all things necessary to undertake urinalysis and/or a blood test for alcohol screening such requests to be no more frequent than once per 7 days collectively with Order (9) in the matter SYC 1805 of 2009. Thereafter the Mother to provide to the Father a copy of the results of such test as soon as practicable after same are available.
10.
It being noted that in the event the Mother is unable to attend at The Sydney Clinic at any given time she be permitted to attend an alternate Pathology Clinic for the purpose of testing and furthermore that in the event CDT Testing is not available at that Pathology Clinic the Mother shall undertake such other alcohol screening test as may be available.
11.
That the Father be responsible for the costs associated with compliance with Orders (9) and (10).
12.
In the event the Mother fails to comply with Orders (9) and (10), the Mother must provide to the Husband, within 48 hours of the request, an explanation for her failure to comply with the Orders, or any part of the Orders.
13.
That the parties have liberty to restore the matter to the list on 48 hours notice in the event a significant issue concerning [X]’s welfare arises, including if the mother resumes consuming alcohol or fails to comply with orders (9) and (10) without reasonable explanation.
14.
That the matter be listed for mention before me on Wednesday
27 October 2010 at 10.00 am.
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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