Cabra & Tackett

[2021] FCCA 2144

FEDERAL CIRCUIT COURT OF AUSTRALIA

Cabra & Tackett [2021] FCCA 2144

File number(s):	PAC 6215 of 2018
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	24 August 2021
Catchwords:	FAMILY LAW – Parenting – best interest of child – child to live with mother – child to spend significant and substantial time with child.
Legislation:	Family Law Act 1975 (Cth), s 60CC
Number of paragraphs:	17
Date of hearing:	24 August 2021
Place:	Parramatta (via video link)
Counsel for the Applicant:	Mr Hill
Solicitor for the Applicant:	Jacqui Griffin Mobile Solicitor
Counsel for the Respondent:	Mr Cairns
Solicitor for the Respondent:	Inner West Solicitors Pty Ltd

ORDERS

PAC 6215 of 2018

BETWEEN:

MS CABRA

Applicant

AND:

MR TACKETT

Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	24 AUGUST 2021

THE COURT ORDERS THAT:

(1)By consent and on a final basis, the parents shall have equal shared parental responsibility for the child, X born in 2013. In exercising equal shared parental responsibility, the parents are to communicate via email and/or text.

(2)X shall live with the mother.

(3)X shall spend time with the father as follows:

(a)During the school terms in a two week cycle:

(i)In week 1: from Thursday after school to Monday before school or if a public holiday to Tuesday before school; and

(ii)In week 2: from Wednesday after school to Thursday before school.

(b)During the school holidays:

(i)For the first half in each odd numbered year and the second half in each even numbered year, with the half way point being 3pm on the middle Saturday of each school holiday period.

(c)On special occasions as agreed between the parents but failing agreement:

(i)On X’s Birthday, for a period of three hours as agreed and failing agreement from after school to 6pm;

(ii)On the father’s Birthday, for a period of three hours as agreed and failing agreement from after school to 6pm; and

(iii)On Father’s Day as agreed but failing agreement from 9am to 6pm.

(d)AND at all other times as agreed between the parents in writing.

(4)Notwithstanding any other order, X shall spend time with the mother as follows:

(a)On X’s Birthday from 6pm to 9pm;

(b)On the mother’s Birthday from after school to 6pm; and

(c)On Mother’s Day from 9am to 6pm.

(5)Unless otherwise agreed, changeover is to occur at the B Street gate of C School.

(6)The parents are at liberty to have telephone communication with X as instigated by X and each parent is to make available his/her mobile telephone to X to facilitate such telephone communication while X is in his/her respective care.

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.

IT IS NOTED that publication of this judgment under the pseudonym Cabra & Tackett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)

JUDGE OBRADOVIC:

1. Before me today is an application for final parenting orders in relation to eight year old X. The parents have been embroiled in this parenting litigation for over three years and it is unfortunate that there has been no resolution to their matter to date.

2. It is though, with some comfort, that the Court has seen that the parents have been able to come together today; well after the proceedings commenced and after they were each cross-examined and that they agreed upon a very important issue which had been one of the sticking points in the parenting litigation. Namely, the parents have agreed that they should have equal shared parental responsibility for X.

3. There is a great deal of material in the parents’ affidavits which is of a historical nature and which colours the way that the parents see each other due to their lived experiences during their relationship together and shortly thereafter. Certainly, they have been separated for a lengthy period of time; indeed, most of X’s life. In the past 12 months at least, if not slightly longer than that, there has been significant cooperation between the parents in terms of X’s best interest.

4. Certainly, there have been no issues in terms of X being enrolled in school or arrangements that have been in place for the last 12 months or so in terms of X spending time with his father. Unfortunately, despite the parents both proposing that X spend time with the father during the school holidays it seems that the parents, for reasons which are still mysterious to the Court, have not had that occur to date. They each propose that X spend time with each of the parents for half the school holidays and that is an order that will ultimately be made in these proceedings.

5. At the commencement of the final hearing – not the least of which due to the COVID-19 pandemic which is worldwide at the moment and due to Australia’s borders being shut down for some time now and into the foreseeable future; the mother made clear that she did she not press her application for international travel with X, another matter that had been a live issue for a long time between the parties.

6. The evidence is that the mother has family overseas and that she has visited such family with X at least on one occasion in 2015, when the father was also present.

7. The father presently has both X’s passports – that is, his Australian passport and his Country D  passport – which he has retained since about the first quarter of 2015. There is no reason for the father to hold those passports or not to let the mother hold those passports; particularly in circumstances where travel internationally is not likely to be occurring in the near future.

8. It is hoped that with the significant steps which have been made today by the parties that there will be a cooperative parenting relationship into the future for X which will see X being able to enjoy international travel, particularly to his mother’s home and country of origin, and for X to get the benefit of having to know his mother’s culture in a much more intimate way. It is hoped by the Court that any bid for future travel by the mother with X will not need a Court determination and that the father will see some sense in allowing X or agreeing to X travelling with the mother to overseas destinations including Country D, as long as it is a safe place for X to travel to.

9. In the Court’s view, children benefit incredibly from having the opportunity to travel overseas and it is not something that should be withheld from X just because of some ideas that the parents might have about each other and their intentions.  Certainly, the Court has no concerns that the mother is a flight risk now or into the future.  She has made Australia her home; it is X’s home; it is the father’s home and there is no suggestion that the mother will in the future abscond with X – notwithstanding some perceived threats that might have been made as a result of some conflict that had arisen between the parties in the past.

10. Similar comments are made in relation to the threats that the father made during the parties’ relationship about cancelling his sponsorship for the mother’s visa and also the conflict that had arisen between the parties post-separation resulting in applications for apprehended domestic violence orders and, indeed, a final apprehended domestic violence order that was ultimately made.

11. As the Court has already indicated, things have settled down somewhat.  And no doubt, as X grows, the parents will attempt to further cooperate if, for no other reason, than for X’s best interest. It is in his best interest that he has two parents who are high-functioning and able to work cooperatively for his future.

12. Ultimately, the parents have agreed upon an order for equal shared parental responsibility and an order that X spend time with each of his parents during the school holidays on an equal basis.

13. As is clear from discussions between the Bench and the parents’ representatives during the hearing, the only issue left for determination by the Court was whether X would spend equal time with the father or significant and substantial time. It is also clear from the discussions between the Bench and the parents’ representatives that there are some practical reasons as to the days that X might spend with the father if there was not to be an order for equal time and what each of the parties’ preference was in that regard, where changeover is practical and what orders are practical for telephone communication.

14. The Court is satisfied having regard to the relevant section 60CC factors, that it is in X’s best interest that he live with the mother and spend significant and substantial time with the father.

15. In all of the circumstances of this case, the Court is not satisfied that an order for equal time is in X’s best interest;  there is simply not the level of cooperation between the parents as would be required and for such time to be in X’s best interest.

16. The Court is satisfied, however, that an order for X to spend significant and substantial time in accordance with the legislative meaning is in X’s best interest, which includes X spending time with his father after school and on weekends in addition to school holiday periods.

17. As such, orders as set out at the forefront of these Reasons for Judgement will be made.

18          I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated: 16 September 2021