FAMILY COURT OF AUSTRALIA
| ACHARYA & SINHA | [2013] FamCA 1041 |
| FAMILY LAW – CHILDREN – Father seeks international relocation with the child – Mother seeks to remain in Australia with the child – Various proposals before the Court as to child’s future living arrangements –Where the child has lived in a shared care arrangement since the parties’ separation – Where the mother has been the child’s primary carer to date – Whether weight should be placed on the Single Expert Report – Whether the circumstances lend to the parties having equal shared parental responsibility or not – The parties’ level of communication and cooperation – Whether there would be an impact upon the parenting capacity of a parent if certain live with/spend time with proposal are adopted by the Court – Whether either an equal time or a substantial and significant time arrangement is in the child’s best interests – The reasonable practicability of the parties’ respective primary and alternative proposals. |
| Family Law Act 1975 (Cth) |
| Champness & Hanson (2009) FLC 93-407 Ember & Assadi [2013] FamCAFC 107 Godfrey & Sanders [2007] FamCA 102 Goode & Goode (2006) FLC 93-286 Gronow & Gronow (1979) 144 CLR 513 MRR v GR (2010) 240 CLR 461 Sampson & Harnett (No 10) (2008) Fam LR 315, [2007] FamCA 1365 Sigley & Evor (2011) 44 Fam LR 439, [2011] FamCAFC 22 Taylor & Barker (2007) 37 Fam LR 461, [2007] FamCA 1246 |
| APPLICANT: | Mr Acharya |
| RESPONDENT: | Ms Sinha |
| FILE NUMBER: | PAC | 814 | of | 2013 |
| DATE DELIVERED: | 20 December 2013 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 8 - 11 and 17 October 2013, 12 December 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton |
| SOLICITOR FOR THE APPLICANT: | Ms Warda of Coleman Greig Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Bell |
| SOLICITOR FOR THE RESPONDENT: | Mr Kramer of Horowitz & Bilinsky |
Orders
Ms Sinha (“the mother”) and Mr Acharya (“the father”) have equal shared parental responsibility for the child S, born … 2010 (“the child”).
The mother have sole parental responsibility for making decisions for the non-major long term issues relating to the child when she lives with or spends time with her, and the father shall have sole parental responsibility for making such decisions when the child is living or spending time with him.
The child is to live with the mother, except as provided in Order 4.
Until the father returns to the United Kingdom in late January 2014, the child is to live with the father each alternate week from 7.00 pm Sunday to 7.00 pm the following Sunday, with the parties to facilitate changeover as agreed between them.
For Christmas 2013, the child is to spend time with the mother from 12.00 pm on 25 December 2013 until 6.00 pm on 26 December 2013, with the parties to facilitate changeover as agreed between them.
Following the father’s return to the United Kingdom and when the father is not otherwise permanently living in Australia:
(a)The child is…
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- Acharya and Sinha [2013] FamCA 1041
- Case
- [2013] FamCA 1041
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included determining the nature of parental responsibility, specifically whether it should be equal shared parental responsibility or sole parental responsibility for certain decisions. The court also had to establish the living arrangements for the child, including the frequency and duration of time the child would spend with each parent, both before and after the father's relocation to the United Kingdom. Further issues involved the practicalities of communication between the child and the father, the allocation of travel costs, and the provision of information regarding the child's health, education, and general well-being.
Hannam J ordered that the parents have equal shared parental responsibility for the child. However, the mother was granted sole parental responsibility for non-major long-term decisions when the child was with her, and the father was granted the same when the child was with him. The child was ordered to live with the mother, with specific provisions for alternate week living arrangements with the father until his return to the United Kingdom. Post-relocation, the child was to spend time with the father in Australia during his visits and for a minimum of three weeks annually in the United Kingdom, subject to conditions including the mother's presence during the first week of the child's time with the father and limitations on consecutive nights spent with the father. The orders also detailed extensive communication arrangements, including electronic and telephone contact, and addressed the sharing of travel expenses, passport management, and the exchange of information concerning the child.
Orders
Orders of the court
1.
Ms Sinha (“the mother”) and Mr Acharya (“the father”) have equal shared parental responsibility for the child S, born … 2010 (“the child”).
2.
The mother have sole parental responsibility for making decisions for the non-major long term issues relating to the child when she lives with or spends time with her, and the father shall have sole parental responsibility for making such decisions when the child is living or spending time with him.
3.
The child is to live with the mother, except as provided in Order 4.
4.
Until the father returns to the United Kingdom in late January 2014, the child is to live with the father each alternate week from 7.00 pm Sunday to 7.00 pm the following Sunday, with the parties to facilitate changeover as agreed between them.
5.
For Christmas 2013, the child is to spend time with the mother from 12.00 pm on 25 December 2013 until 6.00 pm on 26 December 2013, with the parties to facilitate changeover as agreed between them.
6.
Following the father’s return to the United Kingdom and when the father is not otherwise permanently living in Australia:
(a) The child is to spend time with the father as agreed between the parties, or failing agreement, as follows:
(i) In Australia, whenever the father visits under the regime set out in Order 6 (b); and
(ii) In the United Kingdom for a period of not less than three (3) weeks during each calendar year, at times and dates as agreed between the parties under the regime set out in Order 6 (b).
(b) The child’s time with the father is subject to the following conditions:
(i) The mother is to spend up to three (3) hours per day with the child and the father during each day of the first week the child spends with the father; and
(ii) The child is to spend no more than seven (7) consecutive nights with the father and then is to spend at least one (1) night with the mother prior to the next period of more than one (1) consecutive night with the father.
(c) The child is to communicate with the father as follows:
(i) By Skype, webcam or other electronic means that facilitate visual communication at a time and on three (3) days per week as agreed between the parties;
(ii) The father is to initiate the call or connection and the mother is to do all necessary things to facilitate the communication, and when age-appropriate, provide the child with privacy during such periods of communication;
(iii) By telephone at reasonable times and for reasonable periods, including but not limited to, the child’s birthday, Father’s Day and Christmas Day, where the father is not otherwise spending time with the child;
(iv) By written correspondence; and
(v) By emails and text messages when the child is able to communicate by such means.
7.
Notwithstanding the above Orders:
(a) On the child’s birthday, if the father is in Australia, he is at liberty to spend time with the child for a period of not less than three (3) hours at a time as agreed between the parties;
(b) If not in the mother’s care, the child spend time with the mother on Mother’s Day for a period of time as agreed between the parties;
(c) If not in the father’s care, the child spend time with the father on Father’s Day for a period of time as agreed between the parties; and
(d) At Christmas, other than as provided for in these Orders, and so far as can be facilitated, the child spend each alternate Christmas Day from 12.00 pm until 6.00 pm Boxing Day with the parents, with the mother in odd numbered years and the father in even numbered years failing agreement.
8.
In respect of the travel and travel expenses:
(a) Each party is to bear the costs of his or her own airfare to and from the United Kingdom or to and from Australia for the purpose of the child spending time with the father;
(b) The parties are to equally bear the cost of the child’s airfare in respect of the child travelling to and from the United Kingdom for the purpose of her spending time with the father;
(c) The father is to provide to the mother not less than two (2) months’ written notice of his proposed dates to travel to Australia and the mother is to provide to the father not less than two (2) months’ written notice of her proposed dates of travel to the United Kingdom with the child;
(d) Each party is to notify the other parent by email or text not less than seventy-two (72) hours prior to such travel of flight details; and
(e) The mother shall accompany the child to and from the United Kingdom for the purpose of the child spending time with the father pursuant to Order 6(a)(ii) above, until such time as the parties agree that the child may travel independently.
9.
Each party is to keep the other advised of his or her current residential address, postal address, email address and all contact telephone numbers.
10.
The mother is to keep the father advised of the names of the child’s treating medical practitioners and provide all necessary authorities to such medical practitioners to enable the father to obtain information in relation to the child’s health.
11.
Each party is to keep the other advised of any serious illness or accident suffered by the child during a period in his or her care and advise the other as soon as practicable of each treating medical practitioner or like professional, and authorise each of them to speak with the other parent.
12.
The mother is to provide to the father, at least once in each calendar month, a recent photograph of the child.
13.
The mother is to authorise the principal of any school, kindergarten or day care centre attended by the child from time to time to provide to the mother, at the father’s expense, copies of the following documents:
(a) School reports for the child; and
(b) School or class photographs of the child.
14.
Each party is at liberty to attend the child’s day care/school functions, sporting events and extracurricular activities that parents are ordinarily invited to and attend from time or time.
15.
The mother and the father at all times do all things necessary to ensure the child’s British Passport and Australian Passport are renewed prior to expiration and they maintain valid passports for the child and they share the costs associated with the renewal of each passport.
16.
The mother is to hold the child’s Australian passport in her possession and the father is to hold the child’s British passport in his possession, unless otherwise agreed.
17.
The parties take all steps to register these Orders in the United Kingdom.
18.
Leave is granted to the parties to restore the matter to the list within six (6) months of delivery of Judgment on seven (7) days’ notice to each other and to the Court.
19.
All outstanding applications and cross-applications are dismissed.
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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