FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Brochard & Chaucer [2024] FedCFamC2F 370
File number(s): MLC 10838 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 26 March 2024 Catchwords: FAMILY LAW – parenting – unjustified allegations of medical neglect – allegations maintained despite no evidence – lack of insight into children’s emotional needs – risk of emotional and psychological harm – greater the time the greater the risk – balancing of competing considerations – overseas travel – equal shared parent responsibility Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D
Cases cited: Adamson & Adamson [2014] FamCAFC 232
Carlson & Fluvium [2012] FamCA 32
Grella & Jamieson [2017] FamCAFC 21
Masson & Parsons [2019] HCA 21
Division: Division 2 Family Law Number of paragraphs: 127 Date of last submission/s: 8 February 2024 Date of hearing: 16 to 17 November 2023 and 8 February 2024 Place: Melbourne Counsel for the Applicant: Ms Lane Solicitor for the Applicant: DCM Lawyers Counsel for the Respondent: Mr Duckett Solicitor for the Respondent: Ascot Solicitors ORDERS
MLC 10838 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BROCHARD
Applicant
AND: MR CHAUCER
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
26 MARCH 2024
THE COURT ORDERS THAT:
1.The parents have equal shared parental responsibility for X born in 2011, Y born in 2013 and Z born in 2016 (“the children”).
2.The children live with the mother.
3.The children spend time with the father as follows:
(a)During school terms:
(i)In week 1 from the conclusion of school (or 5:00pm on a non-school day) on Friday until the commencement of school (or 5.00 pm on a non‑school day) on Monday; and
(ii)In week 2 from the conclusion of school Wednesday until 7.30 pm.
(b)For one half of the term 1, 2 and 3 school holiday periods as agreed between the parents and in default of agreement for the first half in even numbered years and the second half in odd numbered years with the school holidays deemed to commence at the conclusion of school on the final day of school for the child that finishes school last;
(c)In the long Christmas school holiday period as agreed between the parents and in default of agreement, for the first, fourth and fifth weeks of the holidays in even numbered years and the second, third and sixth weeks in odd numbered years with the school holidays deemed to commence at the conclusion of school on the final day of school for the child that finishes school last;
(d)As otherwise agreed in writing between the parents.
4.The children spend time with the parents during special occasions as follows, and to the extent that this order is inconsistent with any other orders then this order shall prevail:
Christmas
(a)With the mother on Christmas Eve from 12:00pm until 12:00pm on Christmas Day in odd numbered years;
(b)With the father on Christmas Day from 12:00pm until 12:00pm…
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CaseChat Overview and Summary
The court considered the evidence and submissions from both parties, focusing on the best interests of the children. It found that maintaining a relationship with both parents was in the children's best interests but recognised the risk of harm from the ongoing allegations. The court determined that equal shared parental responsibility was appropriate, with the children living primarily with their mother. The detailed parenting time schedule was designed to allow the children to spend significant time with both parents while minimising the risk of harm from the allegations. The court also imposed conditions on overseas travel to ensure that the children's time with both parents was not unduly impacted.
The court ordered that the parents have equal shared parental responsibility for the children, with the children primarily residing with their mother. The parenting time schedule was set out in detail, including specific arrangements for school terms, school holidays, and special occasions. The court also imposed conditions on overseas travel to ensure that the children's time with both parents was not unduly impacted. The court emphasised the importance of information sharing and communication between the parents, and required them to make arrangements for changes in contact details and to avoid denigrating each other in the presence of the children.
The final orders of the court included detailed arrangements for the children's time with each parent, specific provisions for overseas travel, and requirements for information sharing and communication between the parents. The orders were designed to balance the need for the children to maintain a relationship with both parents with the need to protect them from the potential harm caused by the ongoing allegations.
Orders
Orders of the court
MLC 10838 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS BROCHARD
Applicant
AND:
MR CHAUCER
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
26 MARCH 2024
THE COURT ORDERS THAT:
1. The parents have equal shared parental responsibility for X born in 2011, Y born in 2013 and Z born in 2016 (“the children”).
2. The children live with the mother.
3. The children spend time with the father as follows:
(a) During school terms:
(i) In week 1 from the conclusion of school (or 5:00pm on a non-school day) on Friday until the commencement of school (or 5.00 pm on a non‑school day) on Monday; and
(ii) In week 2 from the conclusion of school Wednesday until 7.30 pm.
(b) For one half of the term 1, 2 and 3 school holiday periods as agreed between the parents and in default of agreement for the first half in even numbered years and the second half in odd numbered years with the school holidays deemed to commence at the conclusion of school on the final day of school for the child that finishes school last;
(c) In the long Christmas school holiday period as agreed between the parents and in default of agreement, for the first, fourth and fifth weeks of the holidays in even numbered years and the second, third and sixth weeks in odd numbered years with the school holidays deemed to commence at the conclusion of school on the final day of school for the child that finishes school last;
(d) As otherwise agreed in writing between the parents.
4. The children spend time with the parents during special occasions as follows, and to the extent that this order is inconsistent with any other orders then this order shall prevail:
Christmas
(a) With the mother on Christmas Eve from 12:00pm until 12:00pm on Christmas Day in odd numbered years;
(b) With the father on Christmas Day from 12:00pm until 12:00pm on Boxing Day in odd numbered years;
(c) With the father on Christmas Eve from 12:00pm until 12:00pm on Christmas Day in even number years;
(d) With the mother on Christmas Day from 12:00pm until 12:00pm on Boxing Day in even numbered years.
New Years
(e) With the mother from 12:00pm on New Year's Eve to 12:00pm on New Year's Day in 2024/2025 and alternate years thereafter;
(f) With the father from 12:00pm on New Year's Day to 12:00pm on 2 January in 2024/2025 and alternate years thereafter;
(g) With the father from 12:00pm on New Year's Eve to 12:00pm on New Year's Day in 2025/2026 and alternate years thereafter;
(h) With the mother from 12:00pm on New Year's Day to 12:00pm on 2 January in 2025/2026 and alternate years thereafter.
Easter
(i) With the mother from the conclusion of school on Easter Thursday until 12:00pm on Easter Saturday in even numbered years;
(j) With the father from 12:00pm on Easter Saturday to 12:00pm on Easter Monday in even numbered years;
(k) With the father from the conclusion of school on Easter Thursday until 12:00 pm on Easter Saturday in odd numbered years;
(l) With the mother from 12:00 pm on Easter Saturday to 12:00 pm on Easter Monday in odd numbered years.
Mother’s Day/Father’s Day
(m) With the mother from 9:00 am until 5:00 pm on Mother's Day;
(n) With the father from 9:00 am until 5:00 pm on Father's Day.
Birthdays
(o) With the mother on the mother's birthday from 9:00 am until 8:00 pm on a non‑school day or from the conclusion of school until the commencement of school (or 9:00 am on a non-school day) the following day.
(p) With the father on the father's birthday from 9:00 am until 8:00 pm on a non‑school day or from the conclusion of school until the commencement of school (or 9:00 am on a non-school day) the following day.
(q) On each of the children's birthdays, with the parent who is not otherwise caring for the children from 10:00 am until 4:00 pm on a non-school day or from the conclusion of school until 7:00 pm on a school day.
Other special events
(r) For other special events, (being specifically immediate family member's birthdays, funerals, weddings, baptisms, holy communions, first reconciliations and confirmations) the children may spend time with the parent who is not already caring for the children, as agreed upon by both parents. The requesting parent provide the other parent with the following information as soon as practical:
(i) The date of the event,
(ii) The location of the event.
(iii) Times the children are to be picked up and dropped off.
(s) For other special events for the children not listed in the preceding paragraphs, including holy communions, first reconciliations and confirmations, the parents are at liberty to attend any such special events.
Changeover
5. Changeover occur by the parent whose time with the children is commencing collecting the children from school where changeover coincides with the commencement/ conclusion of school, and otherwise:
(a) By the mother and/or her nominee delivering the children to the Hungry Jacks at Suburb B at the commencement of the father's time with the children; and
(b) By the father and/or his nominee delivering the children to the Hungry Jacks at Suburb B at the conclusion of the father's time with the children; or
(c) As otherwise agreed in writing between the parents.
Travel
6. Each parent is at liberty to travel interstate with the children during the time they ordinary spend with the children pursuant to these orders.
7. Each parent shall be permitted to take the children overseas (provided that such travel does not include countries listed by the Australian Government's Smart Traveller website as "do not travel") for the period of time specified in this order and to facilitate the overseas travel the following provisions shall apply:
(a) both parents shall do all acts and things and sign all such documents necessary to obtain and/or renew the children's passports from time to time;
(b) either parent wishing to travel with the children must first provide the other parent with (unless a shorter period is agreed) not less than 60 days' notice in writing of their intention to travel with the children;
(c) each parent shall provide not less than 30 days' notice in writing of (unless compliance with this order is not reasonably practicable, then the parent shall comply as soon as reasonably practicable):
(i) their intended travel dates with the children;
(ii) their intended travel destinations and itinerary;
(iii) the particulars of the addresses, phone numbers and other contact information for the accommodation in which the children will stay during such travel;
(d) the travel shall not impact upon the children's time with the other parent during any of the special occasions referred to in these orders unless agreed in writing between the parents;
(e) the parent wishing to take the children overseas shall physically accompany the children during such travel;
(f) if either parent wishes to travel during the school holiday time that the other parent would ordinarily spend with the children then the travelling parent shall provide make-up time to the non-travelling parent during the next school holiday period equal to the amount of time missed by the non-travelling parent and such make-up time shall be agreed between the parents at the time that the notice of the proposed travel is proposed.
(g) the parents are only permitted to travel with the children for a maximum of two weeks respectively each calendar year, unless agreed in writing between the parents.
Information sharing and communication
8. Each of the parents shall:
(a) immediately notify the other of any medical emergency, serious illness or injury experienced by the children or either of them, requiring medical treatment or hospitalisation whilst the children are in their care respectively;
(b) forthwith inform the other of any medical, dental or other health practitioner with whom either of the children are scheduled to consult with or have consulted with and authorise the other parent to make all reasonable enquiries of such practitioner(s) in respect of matters considering the children's health save that the father be restrained from being physically in attendance at any medical, dental or other health appointments for the children at which the mother is in attendance;
(c) forthwith provide the other with copies of any reports or records provided to them respectively by any medical, dental or other health professional attended by the children or either of them;
(d) be and are hereby authorised to provide a copy of these orders to any medical, dental or other health professional attended by the children;
(e) make available to the other parent within 7 days of a request any identity documents; medical documents; or other documents relating to the children.
9. Neither parent denigrate the other, their respective partners, family or friends directly or in the presence or hearing of the children and that each parent use their best endeavours to ensure that no one else does so and remove the child/ren from any environment where denigration is occurring.
10. Each of the parents do all acts and things that may be required to ensure that they are each authorised to:
(a) receive information, notices, reports, class lists and photographs directly from any school, kindergarten and/or provider of childcare, extra-curricular or sporting activities attended by the children;
(b) attend all events parents are invited to and permitted to attend, including but not limited to, open days, concerts, parent teacher interviews, sports days and like events; and
(c) provide a copy of these orders to any school, kindergarten and/or provider of childcare, extra-curricular or sporting activities attended by the children.
11. Either parent be at liberty to contact the children whilst the children are not in their care.
12. The parents will inform each other of any changes to their mobile phone number or address within 24 hours of the change being made.
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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