CHAFER & QUIGLEY
[2020] FCCA 2682
•2 October 2020
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
The child X born in 2015 (“the child”) shall live with the mother.
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.
The child shall spend time with the father on Father’s Day from 9.30am until 4pm.
The child shall spend time with the mother on Mother’s Day from 9.30am until 4pm.
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.
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.
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.
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.
Without admissions, each party shall be restrained from physically disciplining the child.
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.
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.
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.
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.
The parties shall notify the other party as soon as reasonably practicable in the event of any medical emergency or hospitalisation of the child.
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
The mother shall have sole parental responsibility for the child.
The child shall spend time with each of her parents at Christmas as follows:
(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;
(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.
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.
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.
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:
(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;
(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;
(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
(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.
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.
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).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 6016 of 2016
| MR CHAFER |
Applicant
And
| MS QUIGLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are final parenting proceedings relating to one child, X born in 2015. The parties to the proceedings are X’s parents, Mr Chafer (“the father”) and Ms Quigley (“the mother”).
At the commencement of the hearing the father was seeking orders inter alia for the parties to have equal shared parental responsibility, the child to live with him and spend three nights each fortnight with the mother.
At the conclusion of the evidence in the proceedings, the father consented to the Court making the majority of the orders sought by the mother. Three matters remained in dispute, namely:
a)Parental responsibility;
b)Time with the father on Christmas Eve/Christmas Day
c)Whether the mother should be permitted to travel overseas with the child or whether the child’s name should remain on the Airport Watch List.
Short Chronology
The father was born in 1980.
The mother was born in Country C in 1981.
The parties met and commenced a relationship in 2013.
The parties do not agree on the date of cohabitation however it is agreed that they did cohabitate prior to the birth of their child X.
In 2015 the parties’ only child, X was born.
The mother became a permanent resident of Australia in 2016.
The parties separated under the one roof on 19 October 2016.
The mother commenced working as a customer service officer in late 2016.
The father commenced court proceedings with the filing of an Initiating Application on 21 December 2016.
During March and September 2017 the father spent time with X at the paternal grandmother’s home.
In September 2017 the mother left the family home with X and relocated to live with friends.
Between 14 September 2017 and 11 November 2017 the father did not spend time with X.
On 12 November 2017 the mother agreed to meet the paternal grandmother at B Shopping Centre for X to spend time with the paternal grandmother on the condition that the father was not present. An altercation occurred when the father arrived at the meeting point resulting in security and police being called. The mother left with X.
On 22 February 2018 the Court made orders by consent for X to live with the mother and to spend time with the father three times per week for four hours.
On 19 July 2018 the parties attended mediation and the father began spending long blocks of day time with X.
On 29 November 2018 the Court made further orders by consent for X to spend overnight time with the father for one night per fortnight.
On 19 March 2019 the Court made further orders by consent for X to spend an extra night with the father, being two nights per fortnight.
Relevant Legal Principles
The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to children of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
[3] McCall & Clark at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]
[6] MRR v GR [2010] HCA 4 at [15]
Parental Responsibility
The father was open in his evidence that he does not have any respect for the mother and that he cannot treat her with respect because he has no respect for her. The father does not accept that the mother is capable of meeting the child’s needs.
It is the Court’s finding that the father believes that he knows better than the mother about medical matters and in general about parenting. He believes that he is the parent who is better capable of making long-term decisions about the child. His evidence is that he would like to have the ultimate say on long-term decisions, even in the face of an order for equal shared parental responsibility; that is, if there is disagreement and no joint decision could be made the father wants to be able to make the final decision.
The impression the Court gained from the father’s evidence is that he generally considers himself to be intellectually superior to the mother. This is also the general impression the Court gained about the paternal grandmother.
The Court accepts the mother’s evidence that she will genuinely consult with the father over issues of long-term importance to the child, but that she would find it genuinely difficult to come to a joint decision in circumstances where the father was not willing to compromise. The Court finds that in those circumstances, the mother would likely agree to the father’s suggestion rather than continuing the discussion between them and attempting to come to an agreed position. Such an outcome may not be in the child’s best interest.
While the father has espoused a belief that he and the mother can come to joint decisions regarding long-term issues for the child, as they have to date, the Court finds that this is unlikely to occur.
The weight of the evidence is such that an order for equal shared parental responsibility is contra-indicated. The evidence does not establish that the parties would be able to comply with the requirements of s65DAC. The presumption of equal shared parental responsibility is rebutted.
If invested with sole parental responsibility the prospect of the mother genuinely consulting the father over issues of long-term importance to the child are high.
It is in the child’s best interest for the mother to have sole parental responsibility for making decisions in respect of any long-term issues for the child.
Overseas Travel
The father submits to the Court that the mother is a flight risk, that she has no immediate ties to the country and that the child’s name should remain on the Airport Watch List.
The Court finds that the mother is not a flight risk and that she has demonstrated her long standing investment in remaining a resident in Australia. While she has no ties to property in the jurisdiction and while she has strong familial ties overseas, she has lived in Australia for many years. The Court accepts her evidence that she intends to remain living in Australia and that she wants to raise X in Australia.
While at present there are significant international travel restrictions for all of those wishing to leave Australia, it is hoped that international travel for Australians will again become the norm in the near future.
Given the mother’s heritage and her familial ties to Country C, it will no doubt be an important aspect of the child’s life to learn about her mother’s culture and traditions. By being able to travel to her mother’s country of origin, provided it is safe for her to do so the child will no doubt, on balance, benefit from such international travel.
It is in the child’s best interest that provided appropriate notice is given to the other parent and that the travel is reasonable and safe for the child, that both parents should have the opportunity of taking the child overseas for holidays and other cultural experiences.
Christmas Day
The father’s case is that the child should, because of his extended family traditions and celebrations, and because the mother is not herself a Christian, spend every Christmas Eve with the father. It was submitted on behalf of the father that the mother wanting to spend Christmas Eve and Christmas morning with the child, that she be able to share in this special time with her, was the mother being “self-interested” and that it showed a “lack of respect for the father’s family”.
Even though the mother may not be a Christian herself, she wants to be able to share the celebrations with the child as part of the child’s Australian culture and heritage. This is anything but self-interest. It is a sign of the mother’s capacity to consider what may be important for the child even though it may not be important for herself personally.
The Court finds that the child should have the opportunity of celebrating important cultural and religious events around Christmas with both of her parents.
It is therefore appropriate that an order be made for the child to spend Christmas Eve with each of her parents in alternating years.
Overall
It was a show of insight by the father to have consented to the mother’s application for the child to live with her. It is an appropriate order to be made in all of the circumstances, as are the other orders to which the parties have agreed. They are in the child’s best interest.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Associate:
Date: 2 October 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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