Chan & Phu - [2013] FCCA 556

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAN & PHU

[2013] FCCA 556

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – parental responsibility – sole parental responsibility – best interests of the child – child’s schooling – with whom the child should live – whether proposed orders are “micro-managing parenting” – courts should take a minimalist approach in making parenting orders – courts should only intervene when the welfare of the child will be advanced by making an order.

COSTS – Security for costs – application for security for costs.

Legislation:
Family Law Act 1975 (Cth), ss.11C, 11F, 60CA, 60CC, 61DA, 65DAA, 117

Cases cited:
Chan & Phu [2010] FMCAfam 1084
Chan & Phu [2012] FMCAfam 1300
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Nash & Reis [2013] FMCAfam 11
Re G: Children’s Schooling [2000] FamCA; (2000) 26 Fam LR 143; FLC 93-025
Scott & Kent [2013] FCCA 127
VR & RR [2002] FamCA 320; (2002) 29 Fam LR 39; FLC 93-099

Applicant:

MR CHAN

Respondent:

MS PHU

File Number:

SYC 1714 of 2010

Judgment of:

Judge Scarlett

Hearing date:

14 June 2013

Date of Last Submission:

14 June 2013

Delivered at:

Sydney

Delivered on:

18 June 2013

REPRESENTATION

Solicitor for the Applicant:

Mr Tiyce

Solicitors for the Applicant:

Tiyce & Partners Lawyers

The Respondent:

In person

Independent Children’s Lawyer:

Ms Webber

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

UNTIL FURTHER ORDER:

All earlier parenting Orders are suspended.
The Response filed on 3 June 2013 is dismissed.
The Applicant Father is to have sole parental responsibility for making decisions about major long-term issues concerning the care, welfare and development of the child [X] born [in] 2001.
The child [X] is to live with the Father with effect from today.
The child [X] is to spend time with the Mother as follows:
(a)Each alternate weekend during the school term commencing on the first weekend after the commencement of the third school term in 2013;
(b)During the Autumn, Winter and Spring school holiday periods for one half of each such period and the Mother’s time is to commence by the collection of [X] from school on the Friday, or from the Father’s residence at 6:00pm if [X] is not at school, of the weekend that [X] would have spent with her mother under order (5)(a) above had there not been school holidays;
(c)Where any mid-term school holiday period extends for three (3) weeks, changeover will take place at 6:00pm on the Wednesday of the middle week at the Father’s residence;
(d)When school; holiday time between [X] and her mother concludes the Mother must return [X] to the Father’s residence at 6:00pm on the Friday; and
(e)In the event that [X] is spending weekend time with the Mother under these Orders and a public holiday or a pupil-free day occurs on either the Friday or Monday then the Mother’s time with [X] is to extend to include those days.
During…

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 Chan & Phu

Details

AGLC: CHAN & PHU [2013] FCCA 556
Case: [2013] FCCA 556
Decision Date: 18 June 2013

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Scarlett in the Federal Circuit Court of Australia. The dispute involved the father and mother of a child, [X], regarding issues of parental responsibility, the child's residence, and time spent with each parent. The court was required to determine the best interests of the child in making final parenting orders, considering the child's schooling and the appropriate allocation of parental responsibility.

The court was tasked with determining whether to grant the father sole parental responsibility for making decisions about major long-term issues concerning the child's care, welfare, and development. Additionally, the court had to decide with whom the child should live and establish a detailed schedule for the child's time with each parent, including provisions for school holidays, public holidays, birthdays, and special occasions. The court also considered the appropriateness of the proposed orders, specifically whether they constituted "micro-managing parenting" and whether intervention was necessary for the advancement of the child's welfare.

Judge Scarlett ordered that all earlier parenting orders be suspended and dismissed the mother's response. The father was granted sole parental responsibility for major long-term decisions concerning the child, and the child was ordered to live with the father. A comprehensive schedule was set out detailing the child's time with the mother, including alternate weekends, half of each school holiday period, and specific arrangements for Christmas and other holidays. The orders also addressed schooling arrangements, including the father's liberty to enrol the child at a particular school and his responsibility for associated fees and expenses. Further provisions were made regarding communication between parents, medical emergencies, the exchange of the child's passport, and injunctions restraining disparaging remarks and discussions of proceedings with the child. Both parents were also ordered to participate in a "Keeping Contact Program."

Orders

Orders of the court

UNTIL FURTHER ORDER:

All earlier parenting Orders are suspended.

The Response filed on 3 June 2013 is dismissed.

The Applicant Father is to have sole parental responsibility for making decisions about major long-term issues concerning the care, welfare and development of the child [X] born [in] 2001.

The child [X] is to live with the Father with effect from today.

The child [X] is to spend time with the Mother as follows:

(a) Each alternate weekend during the school term commencing on the first weekend after the commencement of the third school term in 2013;

(b) During the Autumn, Winter and Spring school holiday periods for one half of each such period and the Mother’s time is to commence by the collection of [X] from school on the Friday, or from the Father’s residence at 6:00pm if [X] is not at school, of the weekend that [X] would have spent with her mother under order (5)(a) above had there not been school holidays;

(c) Where any mid-term school holiday period extends for three (3) weeks, changeover will take place at 6:00pm on the Wednesday of the middle week at the Father’s residence;

(d) When school; holiday time between [X] and her mother concludes the Mother must return [X] to the Father’s residence at 6:00pm on the Friday; and

(e) In the event that [X] is spending weekend time with the Mother under these Orders and a public holiday or a pupil-free day occurs on either the Friday or Monday then the Mother’s time with [X] is to extend to include those days.

During the Christmas/January school holiday period [X] is to spend time with the parties in an alternating formula such that the holidays are divided into three (3) periods as follows:

(a) Period 1 will commence at the close of school on the last day of the school year and will conclude at 6:00pm on 23 December in each year;

(b) Period 2 will commence at 6:00pm on 23 December and conclude at 6:00pm on 14 January in each year;

(c) Period 3 will commence at 6:00pm on 14 January and conclude at 6:00pm on the day before the first day of the school term in each year;

(d) In each year ending in an even number thereafter the Father is to have the period from 23 December until 14 January (Period 2); the Mother is to have the period from the close of school until 23 December (Period 1) and from 14 January until the day before the first day of the school term (Period 3);

(e) In each year ending in an odd number thereafter the Mother is to have the period from 23 December until 14 January (Period 2); the Father is to have the period from the close of school until 23 December (Period 1) and from 14 January until the day before the first day of the school term (Period 3); and

(f) All changeovers will occur at the residence of the Father.

Notwithstanding the effect of these Orders [X] is to spend time with her mother each Mother’s Day commencing at 6:00pm on the Saturday evening immediately prior to Mother’s Day and concluding at the commencement of school on the Monday morning, with the Mother to collect [X] from the Father’s residence at the commencement of this period.

In the event that [X] is spending time with her mother under these orders on the Father’s Day weekend that time shall cease at 6:00pm on the Saturday immediately prior to Father’s Day when the Mother must return [X] to the Father’s residence.

In the event that Easter falls within a school holiday period then the Easter public holiday days are to be included in the school holidays for that year but in the event that Easter falls on a weekend outside the school holiday period then those days are to be treated as regular public holidays and the provisions of Order (5)(e) will apply.

10.

The Mother is to spend time with [X] on [X]’s birthday where that day is a school day from the conclusion of school until 6:00pm that day when the Mother must return the child to the Father’s residence and in the event that [X]’s birthday falls on a weekend that she is otherwise with her father then she will spend time with her mother from 9:00am until 12 noon on her birthday and for this purpose the Mother must collect [X] from the Father’s residence and return her to the Father’s residence at the conclusion of that time.

11.

In the event that [X]’s birthday falls on a weekend when she is in her mother’s care according to these Orders then [X] will spend time with her father from 9:00am until 12 noon and for this purpose the Mother must deliver [X] to the Father at the commencement of that period and collect her from the Father’s residence at the conclusion of that time.

12.

The Father is at liberty to enrol [X] at [K] school to commence at the beginning of Term 3 on 15 July 2013 and for this purpose he is permitted to supply a copy of these Orders to the Principal or other appropriate person at the said school.

13.

The Father is to be responsible for:

(a) The payment of all tuition and ancillary fees required to be paid to [K] school; and

(b) The provision of all necessary school uniforms and sporting clothes and equipment for [X] at [K] school.

14.

Each parent must ensure that [X] attends all school sporting events and other activities that she required by the school to attend on weekends and during school holiday periods.

15.

In the event of a medical emergency involving [X] the parent with whom [X] is staying or living according to these Orders must notify the other parent as soon as reasonably practicable by text message or telephone call advising the nature of the emergency and giving necessary details of any medical treatment.

16.

The Father must notify the Mother of any significant accident, illness, hospitalisation or any circumstance requiring specialist medical treatment and advise the Mother of the location of the hospital and the name and address of any special medical practitioner involved in treating the child.

17.

This Order is to operate as authority for any educational or other professional care provider for [X] whether school, medical practitioner, hospital or otherwise to release any information including school medical or other professional or development reports concerning [X] to both the Mother and the Father.

18.

Each parent is at liberty to request the provision of any documents normally provided to parents direct from [X]’s school including but not limited to correspondence, school photographs and school reports.

19.

The Father is to provide [X] with a mobile telephone for her personal use upon which the parents shall be at liberty to contact the child at any reasonable time whilst she is in the care of the other parent.

20.

Each parent must do all things necessary to ensure that [X] can communicate with the other parent in accordance with her wishes including by ensuring that her mobile telephone is charged and has a credit balance.

21.

Each parent must ensure that [X] is afforded privacy when she is speaking with the other parent on the telephone.

22.

All communication between the parties is to be by email except in the case of emergency.

23.

In the event that the mother is not able to spend time with [X] in accordance with these Orders then she must provide the Father with not less than two (2) weeks’ notice of her inability unless in case of emergency.

24.

[X] is to spend time with each parent on the parent’s birthday where the birthday falls on a weekend when they are not with [X] from 10:00am until 10:00am the following day however in the event that the parent’s birthday falls on a Sunday then the parent who has the child in his or her care will spend time with the child until the commencement of school on the Monday.

25.

Either party is at liberty to remove [X] from the Commonwealth of Australia for the purpose of an overseas holiday at times that the child is in that party’s care PROVIDED THAT both parties are restrained by injunction from taking [X] to any country about which the Department of Foreign Affairs and Trade has issued a travel advice on the Smart Traveller website in one of the following categories:

(a) Reconsider your need to travel; or

(b) Do not travel.

26.

The Mother is to deliver [X]’s passport to the Father by 21 June 2013.

27.

The Father is to retain the child’s passport except when it is required by the Mother for her to travel out of Australia as provided by Order (25) above in which case the Father must deliver the passport to the Mother no less than two (2) weeks prior to the proposed date of travel and the Mother must return the passport to the Father upon [X]’s return to the care of the Father.

28.

In the event that either of the parties removes [X] from the Commonwealth of Australia for the purpose of a holiday that party must ensure that the other party is provided with an itinerary that details:

(a) Flight numbers including times and dates and full details of the return flight;

(b) Identity of the carrier; and

29.

The parties are each restrained by injunction from making any critical, disparaging or derogatory remarks about the other party or any member of the other party’s immediate family or household to [X] or in her presence or hearing whether by verbal, written or electronic means or from permitting third parties to do so.

30.

The parties are each restrained by injunction from discussing these proceedings and [X]’s wishes with [X] or in her presence or hearing.

31.

The parties are each restrained by injunction from showing to [X] or discussing with her:

(a) A copy of any Orders made by the Court;

(b) A copy of any document filed in the proceedings including but not limited to any Application, Response or any affidavit filed by or on behalf of either of the parties;

(d) A copy of the Court’s Reasons for Decision.

32.

The Mother is restrained by injunction from taking [X] to see any counsellor or psychologist without the written consent of the Independent Children’s Lawyer or the leave of the Court.

33.

Within fourteen (14) days of the date of these Orders the parties must do all acts and things and sign all documents and authorities necessary to enrol in and attend all required sessions of the Keeping Contact Program conducted by Unifam in Sydney.

34.

Within fourteen (14) days of the date of these Orders the Father and the Mother must each provide the Independent Children’s Lawyer with written confirmation that he or she have registered for the Keeping Contact Program.

35.

The parties must comply with all requirements of the Keeping Contact Program including but not limited to:

(a) Completing all requirements for intake into the Keeping Contact Program;

(b) Attending all sessions nominated by the facilitator of the Program;

36.

The parties are each to be liable for their share of the fees imposed by Unifam for participation in the Keeping Contact Program and must pay those fees upon request by Unifam.

37.

The Independent Children’s Lawyer is granted leave to provide Unifam with a copy of these Orders.

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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