Chan & Phu - [2010] FMCAfam 1084

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHAN & PHU

[2010] FMCAfam 1084

FAMILY LAW – Children – Parenting Orders – Contravention – Variation of parenting orders – child aged 9 years – school – Christmas school holidays – removing child from Australia for holiday – restraint on taking child to countries covered by DFAT travel warning – passport – Autumn school holidays – whether specific provision should be made for Easter.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 70NEA

Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant:

MR CHAN

Respondent:

MS PHU

File Number:

SYC1714 of 2010

Judgment of:

Scarlett FM

Hearing date:

2 August 2010

Date of Last Submission:

2 August 2010

Delivered at:

Sydney

Delivered on:

15 October 2010

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

ORDERS

Order 14 made on 23 October 2007 is discharged and replaced by Order 14A which states:
The child [X] is to attend [N] School with effect from the commencement of First Term in 2013 and the parties are to do all things necessary to ensure her enrolment in that school.
Order 15 made on 23 October 2007 is discharged and replaced by Order 15A which states:
The child [X] is to spend time with each party during the Christmas school holidays according to a formula where the holidays are divided into three periods and, unless the parties agree otherwise, Period One and Period Three will alternate with Period Two:
(a)Period One will commence at the close of school on the last day of school and will conclude at 6.00 pm on 23 December in each year;
(b)Period Two will commence at 6.00 pm on 23 December and conclude at 6.00 pm on 14 January in each year;
(c)Period Three will commence at 6.00 pm on 14 January and conclude at 6.00 pm on the day before the first day of the school term in each year;
(d)In 2010 and each year ending in an even number thereafter the father will have the period from 23 December until 14 January 2011 (Period Two); the mother will have the period from the close of school until 23 December and from 14 January until the day before the first day of the school term (Periods One and three); and
(e)In 2011 and each year ending in an odd number thereafter the mother will have the period from 23 December until 14 January (Period Two); the father will have the period from the close of school until 23 December and from 14 January until the day before the first day of the school term (Periods One and Three).
Order 18 made on 23 October 2007 is discharged.
Order 25 made on 23 October 2007 is discharged and replaced by Order 25A which states:
Either party may take the child [X] out of Australia for the purpose of an overseas holiday at times when the child is in that party’s care without the need to obtain the…

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 [2010] FMCAfam 1084
Case: [2010] FMCAfam 1084
Decision Date: 15 October 2010

CaseChat Overview and Summary

In the case of Chan & Phu, the dispute arose from the parenting arrangements for their child, [X]. The parents sought to revise certain orders made in 2007 regarding the child's schooling and holiday arrangements. The Family Court of Australia was tasked with resolving these issues.

The primary legal issues before the court were whether the existing parenting orders concerning the child's schooling, holiday arrangements, and travel permissions should be modified. The parents presented arguments and evidence to support their respective positions on these matters. The court had to evaluate the welfare and best interests of the child in light of the proposals put forth by the parents.

The court determined that the existing orders regarding the child's schooling and holiday arrangements were no longer in the child's best interests. Consequently, the court discharged the previous orders and replaced them with new provisions. These new orders specified the child's school enrolment and holiday time-sharing arrangement for Christmas. The court also modified the travel permissions to allow for overseas holidays under certain conditions, while maintaining restrictions on travel to high-risk countries.

The court's final orders included revised provisions for the child's schooling, holiday time-sharing, and travel permissions. These orders were designed to reflect the current circumstances of the child and the parents, ensuring that the child's welfare and best interests were prioritised.

Orders

Orders of the court

Order 14 made on 23 October 2007 is discharged and replaced by Order 14A which states:

The child [X] is to attend [N] School with effect from the commencement of First Term in 2013 and the parties are to do all things necessary to ensure her enrolment in that school.

Order 15 made on 23 October 2007 is discharged and replaced by Order 15A which states:

The child [X] is to spend time with each party during the Christmas school holidays according to a formula where the holidays are divided into three periods and, unless the parties agree otherwise, Period One and Period Three will alternate with Period Two:

(a) Period One will commence at the close of school on the last day of school and will conclude at 6.00 pm on 23 December in each year;

(b) Period Two will commence at 6.00 pm on 23 December and conclude at 6.00 pm on 14 January in each year;

(c) Period Three will commence at 6.00 pm on 14 January and conclude at 6.00 pm on the day before the first day of the school term in each year;

(d) In 2010 and each year ending in an even number thereafter the father will have the period from 23 December until 14 January 2011 (Period Two); the mother will have the period from the close of school until 23 December and from 14 January until the day before the first day of the school term (Periods One and three); and

(e) In 2011 and each year ending in an odd number thereafter the mother will have the period from 23 December until 14 January (Period Two); the father will have the period from the close of school until 23 December and from 14 January until the day before the first day of the school term (Periods One and Three).

Order 18 made on 23 October 2007 is discharged.

Order 25 made on 23 October 2007 is discharged and replaced by Order 25A which states:

Either party may take the child [X] out of Australia for the purpose of an overseas holiday at times when the child is in that party’s care without the need to obtain the consent of the other party PROVIDED THAT each party is restrained by injunction from taking the said child to any country about which the Department of Foreign affairs and Trade has issued a travel advice on the www.smartraveller.gov.au Website in one of the following categories:

(a) High Degree of Caution;

(b) Reconsider your need to travel; or

The mother is to retain the child’s passport in her possession except when it is required by the father for the child to travel out of Australia with him as provided by Order 25A, in which case the mother is to deliver the passport to the father no later than two weeks prior to the proposed date of travel and the father is to return the passport to the mother when the child is delivered back into the care of the mother.

Where Easter falls within a school holiday period, the Easter public holidays will be treated as a normal part of the school holiday period for that year, but when Easter falls on a weekend outside a school holiday period the Easter public holidays will be treated as a normal public holiday weekend and the provisions of order 3.f. will apply.

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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