FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Beta & Avron [2023] FedCFamC2F 1453
File number(s): PAC 844 of 2020 Judgment of: JUDGE MYERS Date of judgment: 18 December 2023 Catchwords: FAMILY LAW – parenting proceedings - with whom a child lives - best interests of child - substantial and significant time - name of child - parental responsibility – presumption of equal shared parental responsibility. Legislation: Australian Passport Act 2005 (Cth) s 11(1)(a)
Family Law Act 1975 (Cth) ss 4AB, 65DAA, 65DAA(3)(a)-(c), 65Y, 90SF(3)(c), 106A, 117(4)(a)-(b), pt VII
Cases cited: Re K (1994) 17 Fam LR 537
T & N [2001] FMCAfam 222
Division: Division 2 Family Law Number of paragraphs: 84 Date of last submission/s: 7 September 2023 Date of hearing: 30 May 2023 - 1 June 2023, 22 June 2023 Counsel for the Applicant: Mr Rosic Solicitor for the Applicant: Lewarne & Goldsmith Counsel for the Respondent: Mr Givney Solicitor for the Respondent: Michael Jokovic & Associates ORDERS
PAC 844 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BETA
Applicant
AND: MS AVRON
Respondent
ORDER MADE BY:
JUDGE MYERS
DATE OF ORDER:
18 DECEMBER 2023
THE COURT ORDERS THAT:
1.That all previous parenting Orders herein be and are hereby discharged.
2.The child X (female) born in 2015 shall be henceforth known as X Avron-Beta.
3.The child Y (female) born in 2016 shall be henceforth known as Y Avron-Beta.
4.The Applicant mother, Ms Beta (the “Applicant”), is authorised to apply to the Registrar of Births Deaths and Marriages that the children registered as X (female) born in 2015 and Y (female) born in 2016 be now registered as X Avron-Beta and Y Avron-Beta.
5.Pursuant s28(5) of the Births Deaths and Marriages Act NSW 1995 the Registrar register the children’s name in the form specified in Order 4 herein.
6.The Court directs that the Applicant forthwith serve a sealed copy of this Order upon the Registrar of Births Deaths and Marriages.
7.The children X Avron-Beta (formerly known as X Avron) born in 2015 and Y Avron-Beta (formerly known as Y Avron) born in 2016 (the “children”) shall live with the Applicant.
8.The Applicant shall have sole parental responsibility for the children provided that she:
(a)notifies the Respondent, Ms Avron (the “Respondent”), of any proposed decision relating to the long-term care and welfare of the children including but not limited to:
(i)Proposed decisions about which schools the children shall attend;
(ii)Proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the children;
(iii)She shall ensure that such notification is given to the Respondent in writing and is given not less than 28 days before the final decision is made, except in the case of an emergency; and
(iv)She takes into consideration any views expressed by the Respondent in respect to such proposed decisions.
9.The children shall spend time with the Respondent as follows:
(a)During the school term, commencing in the second week of each term from…
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CaseChat Overview and Summary
Judge Myers examined the evidence and submissions from both parties, focusing on the children's needs, the parents' capabilities, and the potential impact of the proposed arrangements on the children's welfare. The court assessed the parents' willingness to facilitate meaningful relationships between the children and the non-residential parent. In making the determinations, the court placed significant weight on the principle of the children spending substantial and significant time with both parents, aiming to foster a balanced and healthy relationship between the children and each parent.
The court ruled that the children, X and Y, would primarily reside with Ms Beta, the applicant, but would have extensive and structured time with Ms Avron, the respondent. The court mandated that the children's surnames be changed to Avron-Beta to reflect their relationship with both parents. Ms Beta was granted sole parental responsibility, with specific conditions to ensure that Ms Avron was kept informed and involved in significant decisions regarding the children's welfare. The court also set out detailed arrangements for the children's time with each parent, special occasions, and communication protocols to maintain a positive co-parenting relationship.
The final orders included provisions for the children's name changes, living arrangements, and detailed schedules for time spent with each parent. Additionally, the court imposed restrictions on the parents' communication regarding the proceedings and their children, and outlined specific procedures for handling emergencies, medical appointments, and travel. The court emphasized the importance of the parents' cooperation and the need to protect the children from any negative impacts of their parents' dispute.
Orders
Orders of the court
PAC 844 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS BETA
Applicant
AND:
MS AVRON
Respondent
ORDER MADE BY:
JUDGE MYERS
DATE OF ORDER:
18 DECEMBER 2023
THE COURT ORDERS THAT:
1. That all previous parenting Orders herein be and are hereby discharged.
2. The child X (female) born in 2015 shall be henceforth known as X Avron-Beta.
3. The child Y (female) born in 2016 shall be henceforth known as Y Avron-Beta.
4. The Applicant mother, Ms Beta (the “Applicant”), is authorised to apply to the Registrar of Births Deaths and Marriages that the children registered as X (female) born in 2015 and Y (female) born in 2016 be now registered as X Avron-Beta and Y Avron-Beta.
5. Pursuant s28(5) of the Births Deaths and Marriages Act NSW 1995 the Registrar register the children’s name in the form specified in Order 4 herein.
6. The Court directs that the Applicant forthwith serve a sealed copy of this Order upon the Registrar of Births Deaths and Marriages.
7. The children X Avron-Beta (formerly known as X Avron) born in 2015 and Y Avron-Beta (formerly known as Y Avron) born in 2016 (the “children”) shall live with the Applicant.
8. The Applicant shall have sole parental responsibility for the children provided that she:
(a) notifies the Respondent, Ms Avron (the “Respondent”), of any proposed decision relating to the long-term care and welfare of the children including but not limited to:
(i) Proposed decisions about which schools the children shall attend;
(ii) Proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the children;
(iii) She shall ensure that such notification is given to the Respondent in writing and is given not less than 28 days before the final decision is made, except in the case of an emergency; and
(iv) She takes into consideration any views expressed by the Respondent in respect to such proposed decisions.
9. The children shall spend time with the Respondent as follows:
(a) During the school term, commencing in the second week of each term from the conclusion of school on Tuesday until the conclusion of school on Monday, and thereafter in alternate weeks;
(b) For the first week in each of the Terms 1, 2 and 3 school holidays in 2023 and each odd numbered year thereafter and in alternate even years for the second week of each of the Terms 1, 2 and 3 school holidays;
(c) During the end of Term 4 Christmas school holiday periods of alternate blocks of seven (7) nights commencing at 10:00am on the first Saturday following the last day the children attend school in evens years, and 10:00am on the second Saturday in odd years.
10. The parties be and are hereby restrained from:
(a) Discussing these proceedings with or in the presence or hearing of the children;
(b) Showing the children any documents pertaining to these proceedings.
11. The children are otherwise to spend time with the Applicant for the remainder of the school holiday period that the children are not spending time with the Respondent.
12. Despite the provision of any other Order, the children spend time with the parties on special occasions as follows:
(a) In the event that the children are with the Respondent on their brother's birthday, the Respondents time shall be suspended on J’s birthday.
(b) In the event that Mother's Day falls on the Respondent's weekend, the Respondent’s time shall be suspended from 12 noon until the commencement of school (or 9am in the event of a non-school day) so that the Applicant can then spend time with the children on Mother’s Day from 12 noon until return to school on the Monday.
(c) In the event that Mother's Day falls on the Applicant's weekend, the Applicant’s time shall be suspended from 12 noon until the commencement of school on Monday (or 9am in the event of a non-school day) so that the Respondent can then spend time with the children on Mother’s Day from 12 noon until return to school on the Monday.
(d) The children shall spend time with parent they are not otherwise spending time with or living with on their birthday and that party’s birthday, as agreed between the parties but failing agreement, from 3:00pm-7:00pm.
13. Where not otherwise specified the Respondent’s time shall commence at 9:00am and conclude at 5:00pm on non-school days.
14. Changeovers are to take place at school at the beginning or end of a school day when time commences or concludes on a school day.
15. Changeovers shall occur at Woolworths, Suburb H on a non-school day or at such other place as agreed between the parties in writing. In the event the Applicant or Respondent move from the Suburb H area, then changeover shall be the midpoint between the residences of the Applicant and Respondent.
16. The children shall communicate with either parent by way of video or telephone call as agreed between the parents in writing but failing agreement, on one occasion each period of seven (7) or more nights when the children are in the other parent's care.
17. In the event of a telephone call, the parents will contact the children by calling the other parent's personal mobile phone and providing the phone to the child.
18. The children be at liberty to communicate with both parents at times reasonably requested by the child(ren) and the parent with care of the child(ren) at that time will make reasonable efforts to facilitate such communication with the other parent by contacting them on their mobile phone.
19. For the purposes of facilitating these Orders, and unless otherwise agreed in writing between the parents, the parents are to communicate with each other via email or telephone message, except in the event of an emergency, in which case the parents are to communicate by telephone call, and the parents will limit their communications to discussing parenting matters for the children.
20. The parents are to keep each other informed of their current mobile telephone numbers, email address and residential address and will notify the other parent of any change to those details within 48 hours of such change occurring.
21. Each party will immediately notify the other in the event of an emergency involving either of the children including, but not limited to, either of the children suffering a serious illness or injury or being hospitalised while in their care.
22. Each party will inform the other as soon as is reasonably practicable of any significant medical problems, illness or injury suffered by either of the children while in their care.
23. Each party will provide the details of the prescribing doctor and any medication that has been prescribed for either of the children that needs to be administered during any periods that the children spend with the other parent.
24. The Applicant and Respondent will provide the full particulars of any doctor, medical practitioner, therapeutic or allied health service provider attended upon by the children.
25. Where the children attend upon any specialist medical appointment, either of the parents may attend and obtain all information regarding the health of the child or children from that specialist medical practitioner.
26. The parties are to notify the other immediately where the children attend or are admitted to hospital.
27. The parties are to keep the other informed about any dental treatments undertaken or required by either of the children.
28. The parents shall be at liberty to liaise directly with the children's school principals or teachers to obtain any information about the children's progress at school or information about school events including all school and extra-curricular activities involving the children, including but not limited to, the children’s first day of school, parent teacher meetings, parenting information sessions, school sports carnivals, school assemblies, concerts, fairs, performances and school sporting events or special events, and to arrange for the sending out of newsletters, school photos and academic report cards, and any other documents provided by the school, regardless of which parent's care the children are in at that time.
29. Each parent may contact the children's respective schools, extracurricular organisations and/or treating health professionals attended upon by the child to obtain information ordinarily available to parents and these Orders will be sufficient authority to authorise the release of such information to the requesting parent (at that parent's request).
30. In the event that either parent intends to travel interstate with the children during any period that the children are living with or spending time with that parent, then the travelling parent is to inform the other parent of the intended interstate travel prior to it commencing.
31. In relation to passports for the children:
(a) Pursuant to Section l1(1)(a) of the Australian Passport Act 2005 (Cth), the parents' consent to the children having or being issued with an Australian travel document;
(b) That within sixty days (60) days of the date of these Orders, the parents shall do all things necessary in obtaining a passport for the children, including but not limited to, the completing and signing of such application forms and providing certified copies of identification as required.
32. If either party fails to comply with Order 31 herein, except as may be agreed in writing, this Order shall operate as authority to the other party to make any necessary application to obtain the passports for the children without the written consent of the party previously failing to comply with Order 31.
33. The parties shall be equally liable for the costs of applying and renewing the children's passports.
34. The children's Australian passports are to be kept by the Applicant for safe-keeping at all times except when the children's passports are required by the Respondent for the purpose of travelling overseas with the children in accordance with these Orders, in which case the Applicant is to provide the children's passports to the Respondent not less than thirty (30) days prior to the intended departure date and the Respondent will return the children's passports to the Applicant not less than fourteen (14) days following the children's return to the Commonwealth of Australia.
35. Pursuant to section 65Y of the Family Law Act 1975 (Cth) each parent is permitted to travel outside the Commonwealth of Australia with the children during the period the children are in that parties care pursuant to these Orders or otherwise as agreed between the parties in writing.
36. Prior to departure overseas the travelling parent is to provide the other with:
(a) The proposed period of travel and itinerary for the trip;
(b) The addresses and telephone numbers of any accommodation where it is proposed the children will stay; and
(c) Copies of return airline tickets and details of flights.
37. The travelling parent will activate global roaming on their personal mobile for the duration of the overseas trip or will purchase a local SIM card and provide the non-travelling parent with their local mobile number, so as to provide a communication channel for the non-travelling parent with the children via telephone, text or instant messaging.
38. The travelling parent will do all things necessary to facilitate the non-travelling parent being able to communicate with the children as often as the children wish to communicate with the non-travelling parent, or at least once a week whilst the children are overseas.
39. Each parent be restrained from making any negative, critical, belittling or derogatory comments about the other parent or members of the other parents' family or household in the presence of, or within the hearing range of the children, or via written correspondence or on social media which may be viewed or accessed by the children, and each parent will do all things reasonably necessary to ensure that no other person does so.
40. In the event of any dispute as to the interpretation or implementation of these Orders, the parties shall first attend family dispute resolution with a family dispute resolution practitioner jointly appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to the appointment of the family dispute resolution practitioner, the party raising the dispute shall nominate three (3) family dispute resolution practitioners, one of whom shall be chosen by the other party within fourteen (14) days with the cost’s incidental to the appointment of the family dispute practitioner to be shared equally between the parties.
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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