FAMILY COURT OF AUSTRALIA
| ZAMMIT & ZAMMIT | [2020] FamCA 950 |
| FAMILY LAW – FINAL PARENTING – where parents eventually agreed on all aspects of parenting arrangements except the proportion of time for which the children should live between their respective households during school terms – where each parent sought the children live with them for 9/14 days. FAMILY LAW – FINAL PARENTING – where children have been interviewed on multiple occasions by different professionals – where multiple family reports had been prepared – where children were displaying rejecting behaviour and refusing to spend time with the father - where children have an over-enmeshed relationship with the mother – where mother’s behaviour in failing to support the children’s relationship with the father was considered detrimental to them and emotionally abusive – where an interim disposition, by consent, had involved the children being taken from the primary care of the mother and placed with the father for some months without being able to spend time or communicate with the mother and then only having brief supervised visits FAMILY LAW – FINAL PARENTING – views of children discussed – where the family consultant last in time reported that the children felt they had not been listened to, that their views were ignored or considered to be inaccurate – where children were distressed and disempowered – where children suggest that their views are not worthy of consideration or what they say is not important – where children do not want to keep talking to professionals – where children have become entwined with in the litigation and report feelings of betrayal and bewilderment about what has happened to them, why and how – where family consultant expresses serious concern that ongoing court proceedings will become abusive to the children – where the success of future parenting arrangement will require the children to settle into an everyday routine that is explained to them, including the rationale for the arrangement, and which make sense to them in terms of the depth and quality of their relationships, incorporates their views and offers some validation to their experiences FAMILY LAW – PARENTING – where children were not kept informed of progress of proceedings and orders were not explained to the children – consideration of Australia’s obligations under the United Nations Convention on the Rights of the Child – where giving effect to the Convention on the rights of the child is an additional object of the Family Law Act 1975 FAMILY LAW – PARENTING – where parenting decisions under the Act draw legitimacy from taking into account the views of children, children’s views could be better handled FAMILY LAW – INDEPENDENT CHILDREN’S LAWYER – the role and responsibilities of the independent children’s lawyer – the need for training of Independent children’s lawyers on the specifics and practicalities of according children respect in proceedings commensurate with the age, cognitive capacity and maturity of each child whose interest they represent FAMILY LAW – PARENTING - where family consultant recommends oversight… |
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- Case
- [2020] FamCA 950
- Decision Date
CaseChat Overview and Summary
The court was required to determine the most appropriate final parenting orders, considering the children's views, their well-being, and the mother's behaviour, which was found to be detrimental and emotionally abusive in failing to support the children's relationship with their father. The court also had to address the children's distress and feelings of being disempowered due to their involvement in protracted litigation and the lack of clear communication regarding court proceedings and orders. Furthermore, the court considered Australia's obligations under the United Nations Convention on the Rights of the Child and the need for adequate post-order support.
In its reasoning, the court acknowledged the children's distress and the family consultant's concerns about the ongoing litigation being abusive. The court applied principles relating to the paramountcy of the children's welfare and the importance of considering their views, noting that these views could have been better handled. The court also highlighted the need for training for Independent Children's Lawyers on according children respect commensurate with their age and maturity. The court's final orders, made by consent in part, established equal shared parental responsibility and detailed a specific schedule for the children's living arrangements during school terms and holidays, including provisions for birthdays and religious festivals. The orders also included measures to facilitate communication, participation in extracurricular activities, and parental involvement, while restraining denigration and physical discipline. The court reserved liberty to relist parenting applications within 24 months and dismissed all extant parenting applications.
Orders
Orders of the court
IT IS ORDERED BY CONSENT THAT:
1.
The Mother and Father have equal shared parental responsibility for the children of the marriage, X born … 2008 and Y born … 2011.
IT IS ORDERED BY THE COURT THAT:
2.
The children remain living with the father until 3:30 p.m. on Friday 21 August 2020.
3.
Paragraphs 1 and 2 of the Order made on 5 December 2019 be and is hereby discharged with effect from 3:30 p.m. on Friday 21 August 2020.
4.
During school terms, the children live with the father from after school each alternate Thursday until before school on Tuesday commencing on Thursday 27 August 2020, with changeover to occur at school.
5.
The children live with the mother during school terms at all times other than those referred to in the preceding paragraphs of this Order.
6.
Every fourth day that a parent does not see the children face to face, the children or either of them may contact the other parent by electronic means between 7.00pm and 7.30 pm and the parent in whose care the children are do all acts and things necessary to facilitate the children or either of them contacting the parent who they have not seen.
IT IS FURTHER ORDERED BY CONSENT THAT:
7.
Handovers not at the children’s school take place at the Father’s residence at the commencement of his time and the Mother’s residence at the conclusion of the Father’s time.
IT IS FURTHER ORDERED BY THE COURT THAT:
8.
A reference in this Order to school terms, school term holidays, curriculum days and the long summer school vacation are references to the dates gazetted for the school at which X attends.
9.
The parents do all acts and things to ensure that both children continue with sports competitions, lessons and tournaments, and in the event that either parent is unable to facilitate the children's participation in such activities, that they advise the other parent of their inability and the other parent be permitted to facilitate the child/children's participation.
10.
The parents share equally in the reasonable costs of the children’s sports lessons, competitions, tournaments and necessary equipment including sports shoes.
11.
Both parents are at liberty to attend sports tournaments, notwithstanding that the child participating in the tournament is not in his or her care.
12.
Save for as provided in paragraph 9, the parent with whom the child is not living at the time of the lessons and competitions should not attend the lessons and competitions without the prior written consent of the other parent.
13.
The parents be and are hereby restrained from attending the children’s school where they are not delivering or collecting the children or either of them from school in accordance with this Order, and that each parent, their servants and/or agents be restrained from removing the children or either of them from school when they are not the collecting parent, unless in the event of an emergency or as otherwise agreed in writing.
14.
The mother pay to the father an amount equivalent to one half of the cost of preparation of any Family Report for which the father has already paid the full cost, with such payment to be made by the mother to the father from her entitlement to an alteration of property interests. In the event that the parents are unable to agree as to the precise amount owing by the mother to the father, they each provide their calculations to the Independent Children’s Lawyer who can liaise with my Associate, …@familycourt.gov.au to have the matter listed before me.
IT IS FURTHER ORDERED BY CONSENT THAT:
15.
If the children are not otherwise in the care of the Father on Father’s Day, the children spend time with the Father from 5:00pm the Saturday before Father’s Day until the commencement of school or 9:00am the Monday following Father’s Day.
16.
If the children are not otherwise in the care of the Mother on Mother’s Day, the children spend time with the Mother from 5:00pm the Saturday before Mother’s Day until the commencement of school or 9:00am the Monday following Mother’s Day.
17.
On the children’s birthdays as agreed between the parties in writing and if they cannot reach agreement:
(a) If the birthday falls on a non-school day from 9:00am until 2:00pm with the parent with whom they are not living at the time.
(b) If the birthday falls on a school day from the conclusion of school until 6:30pm with the parent the children would not otherwise be spending overnight time with that day.
18.
On the Mother’s and Father’s birthdays as agreed between the parties in writing and if they cannot reach agreement:
(a) If the birthday falls on a non-school day and the children would not otherwise be spending time with the parent on that day from 9:00am until 7:00pm with the parent whose birthday it is.
(b) If the birthday falls on a school day from the conclusion of school until the commencement of school or 9:00am if the children would not otherwise be spending overnight time with the parent that day.
19.
For Eid al-Fitr and Eid al-Adha as agreed between the parties in writing and if they cannot reach agreement:
(a) In 2020 and each alternate year thereafter:
(i) From the conclusion of school, or 3:00pm if a non-school day, on the first day of Eid until 3:00pm on the second day of Eid with the Father.
(ii) From the conclusion of school, or 3:00pm if a non-school day, on the second day of Eid until 3:00pm on the third day of Eid with the Mother.
(b) In 2021 and each alternate year thereafter:
(i) From the conclusion of school, or 3:00pm if a non-school day, on the first day of Eid until 3:00pm on the second day of Eid with the Mother.
(ii) From the conclusion of school, or 3:00pm if a non-school day, on the second day of Eid until 3:00pm on the third day of Eid with the Father.
20.
During school term holidays the children reside as follows:
(a) With the Mother for the first half in 2020 and each alternate year with the first half to commence from the conclusion of school on the last day of terms until 12noon on the middle Saturday and for the second half in 2021 and each alternate year with the second half to commence from 12noon on the middle Saturday and conclude on the commencement of school on the first day of school terms.
(b) With the Father for the first half in 2021 and each alternate year with the first half to commence from the conclusion of school on the last day of terms until 12noon on the middle Saturday and for the second half in 2020 and each alternate year with the second half to commence from 12noon on the middle Saturday and conclude on the commencement of school on the first day of school terms.
21.
During the long summer holidays, the children reside as agreed between the parents and in default of agreement on a week about basis with the Mother to have the first week commencing from the conclusion of the school year in 2019 and alternating years thereafter and with the Father to have the first week in 2020 and each alternating year.
22.
Notwithstanding paragraph 21 of this Order, the children reside with the Mother and Father over Christmas as follows:
(a) With the Mother from 3pm on Christmas Eve to 3pm on Christmas Day in 2019 and each alternate year and from 3pm on Christmas Day to 3pm on Boxing Day in 2020 and each alternate year thereafter.
(b) With the Father from 3pm on Christmas Day to 3pm on Boxing Day in 2019 and each alternate year and from 3pm on Christmas Eve to 3pm on Christmas Day in 2021 and each alternate year.
thereafter and with the Father to have the first week in 2020 and each alternating year.
23.
Notwithstanding paragraph 21 of this Order, the children reside with the Mother and Father over New Year’s Eve/Day as follows:
(a) With the Mother from 3pm on New Year’s Eve 2020 to 1 January 2021 at 3pm and from 3pm on 1 January 2020 to 3pm on 2 January in 2020 and each alternate year.
(b) With the Father from 3pm on 1 January to 2 January at 3pm 2021 and from 3pm on New Year’s Eve 2019 to 3pm on 1 January 2020 and each alternate year.
24.
The parties be authorised to obtain (at their expense) copies of the children’s school reports, newsletters, notices, photographs and such other material as parents may usually receive from time to time. These orders to be treated as providing such authorisation.
25.
Both parties be permitted to attend parent teacher interviews, school concerts, assemblies, sports days and such other events as parents may usually attend from time to time.
26.
In the event that the children, or either of them require urgent or emergency medical treatment the party with whom the children or either of them is then living immediately provide the other party with full details including information about any injury sustained by, and any treatment administered to, the child and the other party be permitted to liaise with the treating practitioners.
27.
The party with whom any of the children is then living promptly notify the other of any health issues concerning the child that requires specialist attention and authorise all health professionals to provide information to the other party about any such attention or treatment. These orders to be treated as providing such authorisation.
28.
The parties keep each other advised as to their current email, telephone and address details and advise as to any change thereto within twenty-four hours.
29.
The parties, their servants and/or agents be and are hereby restrained from denigrating the other party or their family in the presence or hearing of the children and from allowing anyone else to do so in their presence or hearing.
30.
The parties be restrained from physically disciplining the children or permitting any third party from doing so.
IT IS FURTHER ORDERED BY THE COURT THAT:
31.
I reserve to the parents liberty to have any parenting application or contravention application which is filed within 24 months of the making of this Order listed before me for directions within 3 days of filing or so soon thereafter as I am reasonably available.
32.
The thread of emails concluding with the email from the Independent Children’s Lawyer to my Associate dated 17 June 2020 be marked “C3” and remain on the court file.
IT IS DIRECTED:
33.
That the minute of consent orders provided in the email dated 23 June 2020 at 12:28 PM be marked Exhibit “A” and remain on the Court file.
IT IS FURTHER ORDERED THAT:
34.
All extant parenting applications be otherwise dismissed.
35.
This matter be removed from the docket of the Honourable Justice Bennett NOTING THAT the matter remains with reserved judgment before the Honourable Justice Hartnett in relation to the financial proceedings.
36.
That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included 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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