Cham & Fai - [2021] FedCFamC2F 554

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cham & Fai [2021] FedCFamC2F 554

File number(s): SYC 2913 of 2017

Judgment of: JUDGE BECKHOUSE

Date of judgment: 22 December 2021

Catchwords: FAMILY LAW – PARENTING – Family violence – Gambling addiction – Inappropriate long term accommodation – Unacceptable risk – Meaningful relationship with both parents –Benefits of international travel

Legislation:
Evidence Act 1995 (Cth) s 140(2)

Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60CA, 60CC, 61DA, 68L(2), 102NA, 117(2), 117(3), 117(4)(b

Hague Convention on the Civil Aspects of International Child Abduction

Cases cited:
Blinko & Blinko [2015] FamCAFC 146

Briginshaw v Briginshaw (1938) 60 CLR 336

Deiter & Deiter [2011] FamCAFC 82

Finton & Kimble [2017] FCWA 106

Hardie v Capris [2010] FamCA 1046

Jurchenko & Foster (2014) 51 Fam LR 588

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Moose & Moose (2008) FLC 93-375

MRR & GR (2010) 240 CLR 461

Newman & Tate [2020] FamCA 1114

R v R (2000) FLC 93-000

Division: Division 2 Family Law

Number of paragraphs: 170

Date of hearing: 2-4 November 2021

Place: Sydney

Counsel for the Applicant: Ms Reid

Solicitor for the Applicant: A & J Montgomery Legal

Counsel for the Respondent: Mr Cairns

Solicitor for the Respondent: Jack Rigg Solicitors

Counsel for the Independent Children's Lawyer: Mr Cook

Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates
ORDERS

SYC2913 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CHAM

Applicant

AND:
MR FAI

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

22 DECEMBER 2021

ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.

Parental Responsibility
2.The mother have sole parental responsibility for the child X (also known as X and described in these orders as “the child”) born in 2010.
3.Prior to making any decision pursuant to Order 2 hereof, the mother shall notify the father of what decision she proposes to make and the father may within seven (7) days thereof provide the mother with his views in respect of such decision, and the mother shall take his views into account in making her decision.

Live with
4.The child shall live with the mother.

Time with the Father during Term Time
5.The child spend time with the father as follows:
(a)During each school term, each alternate weekend commencing on Saturday at 12.00pm and concluding at the commencement of school on the following Tuesday.

School Holiday Time
6.During school holidays the child spend time with the father as follows:
(a)For scheduled Term 1, 2 and 3 NSW school holidays, for one half of each school holiday, with the father to have the first half of the school holidays commencing in odd numbered years and the father to have the second half of the school holidays in even numbered years.

7.For the purpose of Order 6(a):
(a)In odd numbered years, the father is to collect the child from after school…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cham & Fai

Details

AGLC: Cham & Fai [2021] FedCFamC2F 554
Case: [2021] FedCFamC2F 554
Decision Date

CaseChat Overview and Summary

These proceedings relate to the final parenting arrangements for X born in 2010. The parties have reached agreement on a number of issues, but the remaining issues required judicial determination. The mother proposed sole parental responsibility and that X live with her and spend time with the father on alternate weekends. The father proposed equal shared parental responsibility and that X spend five nights per fortnight with him. The Independent Children’s Lawyer recommended the orders sought by the mother. The Court found that there were reasonable grounds to believe that the father had engaged in family violence. It found that the father had a gambling problem that remained untreated and that this had the potential to expose X to psychological harm and neglect. It found that X’s exposure to family violence was likely to be stressful and frightening and could teach him that it is acceptable behaviour in an intimate partner relationship to behave in this manner. The Court found that the father’s constant communication with the mother and X had the potential to become invasive for X and undermine the mother’s parenting when X was in her care. The Court found that allocating parental responsibility to the mother would go some way towards minimising the risk of X’s exposure to parental conflict. The Court found that the father’s hotel arrangements caused some practical difficulties and that there was an ongoing risk for X of his constant exposure to parental conflict. The Court found that the parties may wish to travel internationally with X and that international travel was an opportunity for X to understand more deeply his cultural background, strengthen bonds with his extended family, and experience all of the other opportunities that international travel affords a young person. The Court ordered that the mother have sole parental responsibility but prior to making any decisions about his long term care, welfare and development, the mother shall notify the father and take his views into account before making her decision. The Court ordered that X spend time with the father on alternate weekends from Saturday afternoon until before school each Tuesday. The Court ordered that the parties restrict their communications to twice per day when X was not in their care. The Court ordered that X’s name be removed from the Family Law Watchlist and that both parties be permitted to travel with X for the purposes of a holiday.

Orders