FAMILY COURT OF AUSTRALIA
Cardin & Hyles [2021] FamCA 265
File number(s): SYC2105 of 2021 Judgment of: ALTOBELLI J Date of judgment: 27 April 2021 Catchwords: FAMILY LAW – JURISDICTION – Where the mother concedes that the Family Court of Australia has jurisdiction to determine the father’s application for parenting orders – Where the mother submits that the Court should not exercise its jurisdiction – Finding made that it is in the best interests of the child to determine the matter in this Court
FAMILY LAW – PARENTING – Urgent COVID-19 List Application – Where the parties lived in a UK City for the majority of their relationship – Where the nature of the parties’ work involves significant periods of travel – Where the parties travelled to Australia in 2020 – Where the parties were unable to return to the United Kingdom due to the COVID-19 pandemic – Where the child has been enrolled in school in Sydney – Where the mother seeks the summary return of the child to the United Kingdom – Matter determined by reference to the best interests of the child – Court unable to determine COVID-19 risk issues by reference to evidence in other cases – no concept of general issue previously decided in Australian family law – Mother’s application for summary orders dismissed – Interim parenting orders made – Order made placing child on Family Law Watch List
Legislation: Family Law Act 1975 (Cth) Pt VII, s 60CC Cases cited: Angeli & Farina [2020] FamCA 975
EJK & TSL (2006) FLC 93-287; [2006] FamCA 730
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Karim & Khalid (2007) FLC 93-348; [2007] FamCA 1287
Secretary, Department of Communities and Justice & Paredes [2021] FamCA 128
ZP & PS (1994) 181 CLR 639; [1994] HCA 29
Number of paragraphs: 34 Date of last submission/s: 19 April 2021 Date of hearing: 19 April 2021 Place: Sydney Counsel for the Applicant: Mr Tockar Solicitor for the Applicant: Blanchfield Nicholls Counsel for the Respondent: Ms Giacomo Solicitor for the Respondent: Hamish Cumming Family Lawyers ORDERS
SYC2105 of 2021 BETWEEN: MS CARDIN
Applicant
AND: MR HYLES
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
28 APRIL 2021
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.Orders 5 and 6 of the Interim Orders sought by the mother in her Initiating Application filed 24 March 2021 be dismissed.
2.The mother and father have equal shared parental responsibility for X, born … 2012.
3.During the school term, X shall live with the parties as agreed and, failing agreement, as follows: -
(a)With the mother each week from 3.00pm on Sunday until the commencement of school (or 9.00am) on Thursday;
(b)With the father each week from the commencement of school (or 9.00am) on Thursday until 3.00pm on Sunday.
4.During the school holiday periods, X shall live with the parties as agreed and, failing agreement, as follows:-
(a)With the mother for half of each school holiday period, being the first half in even…
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CaseChat Overview and Summary
The legal issues before the Court included whether it should exercise its jurisdiction to determine parenting orders, particularly in circumstances where the parties had previously resided in the United Kingdom and were unable to return due to the COVID-19 pandemic. The mother sought the summary return of the child to the United Kingdom, and the Court was required to consider the best interests of the child in making its determination, noting that it could not rely on evidence from other COVID-19 List cases or general principles previously decided in Australian family law.
Altobelli J reasoned that it was in the best interests of the child to determine the matter in the Family Court of Australia. The Court found that the child had been enrolled in school in Sydney and had established a life there. The mother's application for summary orders for the child's return to the United Kingdom was dismissed.
The Court made interim parenting orders, establishing equal shared parental responsibility for X. The orders detailed a shared living arrangement between the mother and father during school terms and holidays, with specific provisions for public holidays and birthdays. Crucially, the Court issued an injunction restraining the parents from removing X from Australia until 31 March 2023 and requested the Australian Federal Police to place X on the Family Law Watch List.
Orders
Orders of the court
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1. Orders 5 and 6 of the Interim Orders sought by the mother in her Initiating Application filed 24 March 2021 be dismissed.
2. The mother and father have equal shared parental responsibility for X, born … 2012.
3. During the school term, X shall live with the parties as agreed and, failing agreement, as follows: -
(a) With the mother each week from 3.00pm on Sunday until the commencement of school (or 9.00am) on Thursday;
(b) With the father each week from the commencement of school (or 9.00am) on Thursday until 3.00pm on Sunday.
4. During the school holiday periods, X shall live with the parties as agreed and, failing agreement, as follows:-
(a) With the mother for half of each school holiday period, being the first half in even numbered years and the second half in odd numbered years;
(b) With the father for half of each school holiday period, being the first half in odd numbered years and the second half in even numbered years.
5. Unless otherwise agreed between the parties, school holiday periods are defined as:
(a) The school holidays commence at the conclusion of school on the last day of the school term that X attends school ;
(b) The school holidays conclude at 9.00am on the first day X is required to attend school in the new school term;
(c) The midpoint of the school holiday period is 3.00pm on the day that falls in the middle of the school holiday period;
(d) Pupil free days at the end or start of each school term are included in the school holiday period.
6. Notwithstanding any order to the contrary, X will spend the following time with the mother:
(a) from 6.00 pm on the day preceding Mother’s Day until 12 noon on Mother’s Day;
(b) from 12.00 pm on Christmas Eve until 12.00 pm Christmas Day in even numbered years; and
(c) from 12.00 pm Christmas Day to 12.00 pm Boxing Day in odd numbered years.
7. Notwithstanding any order to the contrary, X will spend the following time with the father:
(a) from 6.00 pm on the evening before Father’s Day until 12 noon on Father’s Day
(b) from 12.00 pm on Christmas Eve until 12.00 pm Christmas Day in odd numbered years; and
(c) from 12.00 pm on Christmas Day until 12.00 pm Boxing Day in even numbered years.
8. Notwithstanding any other order, X will spend time with the father on his birthday and the father’s birthday from 3.00 pm to 8.00 pm if the birthday falls on a day when he will be spending time with the mother in accordance with any other order.
9. Notwithstanding any other order, X will spend time with the mother on his birthday and the mother’s birthday from 3.00 pm to 8.00 pm if the birthday falls on a day when he will be spending time with the father in accordance with any other order.
10. Unless otherwise agreed, changeover shall take place at X's school on school days and on non-school days at B Street, Suburb C NSW.
11. In the event the mother travels to the United Kingdom for work in April 2021 the following shall apply:-
(a) The mother's time with X pursuant to orders 3 and 4 above is suspended;
(b) X is to live with the father;
(c) The father shall facilitate X communicating with the mother by any form of electronic means available including but not limited to Microsoft Teams, Facetime, Skype and via telephone.
(d) Upon the mother's return to Australia, X shall recommence spending time with his mother pursuant to orders 3 and 4 subject to the mother providing the father with 14 days' notice of her intention to return to Australia and completing any period of quarantine or self-isolation required.
12. Until further order, MS CARDIN, born … 1972 and MR HYLES, born … 1973, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of X, born … 2012 from the Commonwealth of Australia until 31 March 2023 AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of X, born … 2012 on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List until 31 March 2023.
13. The matter be referred to the docket registrar for further case management.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cardin & Hyles has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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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