CHAFER & QUIGLEY

Case [2020] FCCA 2682

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAFER & QUIGLEY [2020] FCCA 2682
Catchwords:
FAMILY LAW – Parenting – final orders – parental responsibility – international travel.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60B, 60CC, 61DA, 65DAA, 65DAC

Cases cited:

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC

MRR v GR [2010] HCA 4

Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1
Applicant: MR CHAFER
Respondent: MS QUIGLEY
File Number: PAC 6016 of 2016
Judgment of: Judge Obradovic
Hearing dates: 19, 20 and 21 August 2020
Date of Last Submission: 21 August 2020
Delivered at: Parramatta
Delivered on: 2 October 2020

REPRESENTATION

Counsel for the Applicant: Mr Jackson
Solicitors for the Applicant: Sharah & Associates Solicitors and Conveyancers
Counsel for the Respondent: Mr Greenaway
Solicitors for the Respondent: Phillip A Wilkins & Associates

Counsel for the Independent Children's Lawyer:

Mr Reeves

Solicitors for the Independent Children's Lawyer:

Sydney West Family Lawyers

ORDERS BY CONSENT

  1. The child X born in 2015 (“the child”) shall live with the mother.

  2. The child shall spend time with the father during the New South Wales school terms as follows:

    (a)Until December 2020 as follows:

    (i)In week one from 9.30am Friday until 12pm Sunday and each alternate week thereafter; and

    (ii)In week two from 9.30am Thursday until 4pm Friday and each alternate week thereafter.

    (b)Commencing December 2020 as follows:

    (i)In week one from 9.30am Friday until 9am Monday and each alternate week thereafter; and

    (ii)In week two from 9.30am Thursday until 4pm Friday and each alternate week thereafter.

    (c)Once the child commences Kindergarten in 2021 as follows:

    (i)In week one from after school or 3pm Friday until before school or 9am Monday each alternate week; and

    (ii)In week two from after school or 3pm Thursday until before school or 9am Friday each alternate week.

    (d)Commencing in 2021:

    (i)For one half of the Terms 1, 2 and 3 school holiday period commencing after school or 3pm on the last day of the child’s attendance of the school term and concluding at 5pm on the middle Saturday in even numbered years and from 5pm on the middle Saturday until 9am or before school on the first day of the new school term in odd numbered years;

    (ii)Each alternate week of the Term 4 school holiday period commencing after school or 3pm on the last day of the child’s attendance of the school term and concluding at 5pm on the following Saturday with changeovers occurring at 5pm on Saturdays.

    (e)Commencing in 2024 when the child is in year 3 for one half of the Term 4 school holiday period commencing from after school or 3pm on the last day of the child’s school attendance and concluding at 5pm on 7 January in even numbered years and from 7 January until 5pm on the last Sunday before the commencement of the new school term in odd numbered years.

  3. The child shall spend time with the father on Father’s Day from 9.30am until 4pm.

  4. The…

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AGLC
Chafer and Quigley [2020] FCCA 2682
Case
[2020] FCCA 2682
Decision Date

CaseChat Overview and Summary

This matter concerned final parenting orders made by consent between the mother and father regarding their child, X, born in 2015. The dispute revolved around the arrangements for the child's living arrangements, time spent with each parent, parental responsibility, and international travel.

The court was required to determine the specific terms of the final parenting orders, including the division of time between the parents during school terms and holidays, arrangements for birthdays and Christmas, and provisions for communication and the exchange of information. Crucially, the court also had to address the issue of parental responsibility and the conditions under which international travel with the child would be permitted.

The orders were made by consent, reflecting an agreement between the parties. The court ordered that the child live with the mother and detailed specific, evolving arrangements for the child to spend time with the father. The mother was granted sole parental responsibility. The orders also included provisions for communication between the parents, the exchange of information regarding the child's health, and restrictions on denigrating the other parent or physically disciplining the child. Regarding international travel, each parent was permitted to travel with the child for up to four weeks per year, subject to strict notice requirements, provision of itineraries and travel details, and the travel generally occurring during the travelling parent's allocated time with the child. The court also requested the removal of the child from the Airport Watch List.

Orders

Orders of the court

ORDERS BY CONSENT

1. The child X born in 2015 (“the child”) shall live with the mother.

2. The child shall spend time with the father during the New South Wales school terms as follows:

2. (a) Until December 2020 as follows:

2. (i) In week one from 9.30am Friday until 12pm Sunday and each alternate week thereafter; and

2. (ii) In week two from 9.30am Thursday until 4pm Friday and each alternate week thereafter.

2. (b) Commencing December 2020 as follows:

2. (i) In week one from 9.30am Friday until 9am Monday and each alternate week thereafter; and

2. (ii) In week two from 9.30am Thursday until 4pm Friday and each alternate week thereafter.

2. (c) Once the child commences Kindergarten in 2021 as follows:

2. (i) In week one from after school or 3pm Friday until before school or 9am Monday each alternate week; and

2. (ii) In week two from after school or 3pm Thursday until before school or 9am Friday each alternate week.

2. (d) Commencing in 2021:

2. (i) For one half of the Terms 1, 2 and 3 school holiday period commencing after school or 3pm on the last day of the child’s attendance of the school term and concluding at 5pm on the middle Saturday in even numbered years and from 5pm on the middle Saturday until 9am or before school on the first day of the new school term in odd numbered years;

2. (ii) Each alternate week of the Term 4 school holiday period commencing after school or 3pm on the last day of the child’s attendance of the school term and concluding at 5pm on the following Saturday with changeovers occurring at 5pm on Saturdays.

2. (e) Commencing in 2024 when the child is in year 3 for one half of the Term 4 school holiday period commencing from after school or 3pm on the last day of the child’s school attendance and concluding at 5pm on 7 January in even numbered years and from 7 January until 5pm on the last Sunday before the commencement of the new school term in odd numbered years.

3. The child shall spend time with the father on Father’s Day from 9.30am until 4pm.

4. The child shall spend time with the mother on Mother’s Day from 9.30am until 4pm.

5. The child shall spend time with each of her parents on her birthday for no less than three hours as agreed and failing agreement from after school until 6pm if a school day and from 1pm until 4pm if a non-school day with the parent she would not ordinarily be spending time with.

6. The child shall spend time with each of her parents on their respective birthdays for a period of no less than three hours as agreed and failing agreement from after school or 3pm if a school day and from 1pm until 4pm if a non-school day.

7. For the purpose of changeover unless changeover occurs at the child’s school, changeover shall occur at B Shopping Centre unless otherwise agreed between the parties.

8. Each party shall be restrained from denigrating the other in the presence or hearing of the child and do all acts and things to ensure that no third person does so.

9. Without admissions, each party shall be restrained from physically disciplining the child.

10. Each party shall ensure the other is informed of any medical problems or illness suffered by the child whilst in their care and any medication that has been prescribed to the child.

11. The parties shall communicate with each other about matters relating to the child via email or SMS text message or by telephone in the event of an emergency.

12. Each party shall keep the other informed of their current residential address and current phone numbers and advise the other of any change thereto within 24 hours.

13. Each party shall be at liberty to contact all medical and health professionals the child may attend from time to time so as to enable them to obtain information pertaining to the child’s health.

14. The parties shall notify the other party as soon as reasonably practicable in the event of any medical emergency or hospitalisation of the child.

15. The parties shall each facilitate telephone, skype or face time contact between the child and the parent with whom she is not living or spending time at reasonable times and with reasonable frequency.

THE COURT FURTHER ORDERS THAT

16. The mother shall have sole parental responsibility for the child.

17. The child shall spend time with each of her parents at Christmas as follows:

17. (a) With the mother from 9.30am Christmas Eve until midday Christmas Day in even numbered years and from midday Christmas Day until 4pm Boxing Day in odd numbered years;

17. (b) With the father from midday Christmas Day until 4pm Boxing Day in even numbered years and from 9.30am Christmas Eve until 12 noon Christmas Day in odd numbered years.

18. Within 7 days from the date of these Orders the father shall provide to the mother the child’s passport and the mother shall retain the passport in her possession.

19. The mother and father shall do all things and sign all documents necessary to renew the child’s passport as it falls due and take all reasonable steps to commence this process no later than 21 days prior to the expiration of the passport with the costs to be shared equally.

20. Each of the parents is permitted to travel outside of the Commonwealth of Australia with the child for a period of up to four weeks per year provided the following occurs:

20. (a) The travelling parent shall provide no less than two months’ notice to the other parent in writing of his/her intention to travel overseas with the child;

20. (b) The travelling parent shall within 28 days prior to the intended date of travel provide to the other parent a copy of the proposed itinerary for travel;

20. (c) The travelling parent shall 7 days prior to the intended date of travel provide to the other a copy of the return air tickets, contact numbers for the child during the period of travel and any insurance documents for the child in relation to travel; and

20. (d) Unless otherwise agreed between the parents in writing, any period of travel shall occur during times the child is otherwise with the travelling parent.

21. The Court requests that the Australian Federal Police remove the name of the child X born in 2015 from the Airport Watch List at all points of international arrivals and departures in Australia.

22. Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Chafer & Quigley is approved 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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