Chan & Phu
[2010] FMCAfam 1084
•15 October 2010
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 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 Website in one of the following categories:
(a) High Degree of Caution;
(b) Reconsider your need to travel; or
(c) Do not travel.
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.
IT IS NOTED that publication of this judgment under the pseudonym Chan & Phu is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC1714 of 2010
| MR CHAN |
Applicant
And
| MS PHU |
Respondent
REASONS FOR JUDGMENT
Application
This action commenced as an application by the father of a girl named [X] for findings by the Court that the mother had, without reasonable excuse, breached five Orders made by Le Poer Trench J in the Family Court of Australia on 23rd October 2007. The application claimed a total of six contraventions over a two-year period from 8th January 2008 to 4th January 2010.
However, the parties attended a Child Dispute Conference before a Family Consultant on 30th June 2010, where they reached a partial agreement that the primary Orders should be varied in an attempt to achieve greater clarity and reduce conflict between them as to the arrangements for their child.
This has not been entirely successful, as appeared from the hearing conducted before this Court on 2nd August 2010, where the applicant and respondent made oral submissions about how the orders should be varied. The parties demonstrated in Court an antagonism towards each other that does not augur well for cooperation between them in the future over matters concerning their daughter.
The applicant father requested leave to file an affidavit in reply to certain matters raised by the mother, which was granted. The affidavit, filed on 20th August 2010, has been treated as if it were a submission in reply.
Background
The parties have one child, [X], who is nine years if age. She was born [in] 2001. [X] lives with the respondent and spends time with the applicant at times set out in the Orders made by Le Poer Trench J on 23rd October 2007.
The applicant brought filed this application on 22nd March 2010[1], claiming a total of six contraventions of five Orders over a period of two years.
[1] Although it is erroneously date-stamped as having been filed on “22 Mar 2009”
The Orders said to have been contravened are Orders 3.a, 3.b, 15, 18 and 25.
Order 3.a states that [X] live with her father:
each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday. Unless otherwise specifically agreed between the parties in writing the father is to cause [X] to be collected from her school and returned to her school at the commencement and conclusion of these times.
Order 3.b states that [X] live with her father:
half of all school holiday periods with the holiday period to commence on the Friday of the weekend that [X] would have been with her father pursuant to order 3(a) hereof had there not been school holidays.
Order 15 states:
In relation to the Christmas school holidays these are to be divided equally between the parties. In years ending with an uneven number the mother is to have the first half of the school holidays and in years ending in an even number the father is to have the first half of the school holidays. During the school holiday period [X] is to be given the option by each parent to spend time with the other parent during the three week block that she is with each of the parents during that holiday period. The parties are to communicate by email to make arrangements for [X] to spend time with the other parent during that period. The Christmas school holidays are to commence on either Friday where it is the last day of school term or the Friday immediately after the last day of school term and it is to conclude on the Friday immediately before the first day of the school term in the New Year.
Order 18 states:
The parties are to make arrangements for [X] to spend some Christmas Day or Christmas Eve time with each of them each year unless there is an agreement in writing to the contrary for some particular year. In this respect the father has requested that there be some years when he can take [X] to Perth with him to spend Christmas with his family. Each alternate year the mother is to have [X] with her from 6.00 pm on Christmas Eve until 6.00 pm on Christmas Day; first year to commence on 24 December 2008. Each alternate year the mother is to have [X] with her from 6.00 pm on Christmas Day until 6.00 pm on Boxing Day; first year commencing 25 December 2007. Each alternate year the father is to have [X] with him from 6.00 pm on Christmas Eve until 6.00 pm on Christmas Day; first occasion to commence 25 December 2007. Each alternate Christmas Day the father is to have [X] with him from Christmas Day until 6.00 pm Boxing Day; first occasion to commence 25 December 2008.
Order 25 states:
Either party may remove [X] from Australia for the purpose of an overseas holiday with the written consent of the other party. Request for such written consent to be made no later than eight weeks prior to the proposed holiday and contain a copy of proposed itinerary. The party receiving the request is to reply within 14 days. The court notes that the father has provided his consent to [X] being removed from Australia by her mother for the purpose of an overseas holiday between 27 December 2007 and 8 January 2008. The court notes the provisions of section 65Y of the Family Law Act which provides that a person who removes a child from Australia or causes a child to be removed from Australia where that child is the subject of a parenting order without an order from the Court allowing that to occur or the consent in writing from the other persons entitled under the parenting order is liable for a penalty of imprisonment for three years.
The Contravention Application claims that the respondent contravened:
a)Order 18 on 24th December 2009;
b)Order 15 on 4th January 2010;
c)Order 25 on an unspecified date in December 2009;
d)Order 3.b on 9th October 2009;
e)Order 3.a on 25th September 2009; and
f)Order 15 on 8th January 2008.
In view of the matters raised at the Child Dispute Conference and the subsequent partial agreement between the parties, the details of the alleged contraventions are no longer relevant. There is no need for the Court to make formal findings about whether or not the alleged contraventions have been established.
The Child Dispute Conference
The parties attended a Child Dispute Conference on 30th June 2010. The Family Consultant was the same Family Consultant who prepared the Family Report for the Family Court proceedings in 2007. The Family Consultant Memorandum to Court notes that the parties were interviewed separately.
The Family Consultant noted that the parties had reached a partial agreement about:
a)Varying Order 15 by dividing Christmas into three periods;
b)Removing Order 18 and specifying a different arrangement for school holidays, with particular provision for what happens at Easter;
c)Varying Order 25 to permit each parent to travel overseas with the child without the need to seek the other parent’s permission, including an undertaking not to take her into any war-torn or other unsafe country;
d)Allowing the child to attend [N] School; and
e)Providing the mother should hold the child’s passport with an undertaking that the passport be made available in sufficient time for travel.
The Family Consultant noted that the issues remaining in dispute were:
a)When the child’s passport should be made available prior to travel;
b)Arrangements for Easter;
c)School holiday arrangements in 2012 and 2015;
d)Whether changeovers at the mother’s home are stressful for [X]; and
e)Whether the Orders relating to the child’s attendance at [N] School should be reviewed after two years.
The Family Consultant made this comment:
Mr Chan and Ms Phu have a very poor parenting relationship which is resistant to change – see previous Family Report, prepared by this Family Consultant (2007). They have very limited capacity to negotiate with each other and need orders that specify very clearly what is expected of each of them in relation to the parenting arrangements for [X].[2]
[2] Family Consultant Memorandum to Court dated 29 July 2010 page 3
Submissions
The applicant’s affidavit filed on 20th August 2010 covered a number if past issues which are not relevant to the matters to be decided, but confirmed, if any confirmation were needed, the degree of hostility between the parties.
The father’s affidavit sets out at paragraph [6] his views about the proposed amendments to the orders:
a. Christmas: I agree to amend Order 15 as per the agreement reached with Ms M.[3] Subsequently Order 18 is to be removed.
b. I agree with Order 14 to be amended to the parties agreeing that [X] is to attend [N] School from 2013.
c. I agree to order 25 to be amended so that either party can travel overseas with [X] with reference to “safe” countries as guided by the DFAT Smart Traveller website.
d. With regards to [X]’s passport, I would prefer to receive the passport 4 weeks before travel. 2 weeks before travel gives me insufficient time to procure a new passport if it is lost or if she requires a visa.
e. With regards to splitting the Easter period, I still have concerns regarding the impact on [X] with a handover period, and believe that a rotation period, similar to Christmas, is the most appropriate. I have put forward an option which handles this in a manner favourable to the mother (Attachment 24). Previous orders made by Justice Le Poer Trench were specifically designed to minimise direct handover of [X] due to the stress it causes her. A rotational Easter period, similar to Christmas, seems fairest; however, I am also willing to accept no access over the Easter period if it is a better result for [X]’s frame of mind.
[3] The Family Consultant
The document headed “Attachment 24” annexed to the applicant’s affidavit sets out his two proposals to amend the arrangements for the Easter holiday period. The first proposal is headed “Rotational” and says:
During the 2012 and 2015 April school holiday period the weekly arrangement is to be adjusted as follows:
- Father’s week of school holidays will commence from Friday the 13th April 2012 and conclude at the commencement of school on the 23rd April 2012, replacing the week commencing 7th April 2012.
- Father’s week of school holidays will commence from Friday the 10th April 2015 and conclude at the commencement of school on the 20th April 2015, replacing the week commencing the 4th April 2012.
In the alternative, the applicant proposes an arrangement under the heading “[X] does not spend Easter with Father”. That proposal says:
If Easter falls on a weekend outside of school holidays when [X] is to live with her father, then [X] shall live with her mother that weekend and then live with the Father the weekend immediately following the Easter weekend.
Where Easter falls on the first or last weekend of school holidays, and it falls on a weekend where [X] is to live with her Father, then the weekly holiday period will be switched between the parents so that the Easter weekend occurs during the Mother’s week.
If Easter falls on the middle weekend of school holidays, the Father’s will either end on the Thursday at 6pm before Easter Friday or commence at 6pm on the Tuesday following Easter Monday.
The respondent told the Court that there is no need for the child’s passport to be handed over a month before any proposed travel. The applicant sees the child every second week, so two weeks’ notice should be sufficient. She went on to say that she wanted a firm rule. She wanted to stay with a split Easter with a changeover on the Saturday evening; otherwise, she would not have the child for four out of the next five Easters. She criticised the father’s proposal, as articulated at the hearing, as “very complicated”.
The respondent did not accept the applicant’s submission that changeovers between the parents at the mother’s home were stressful to the child. She expressed the view that any stress was caused by the applicant.
The parties were agreed that the child would attend the [N] School in 2013 and thereafter, although the respondent did not agree that the school issue should be reviewed after two years. The respondent did not object to an order about the applicant being able to obtain appropriate school information or attend parent-teacher interviews.
The respondent wants “a rule that will last”, without having to be varied and without the need to come back to Court.
In reply, the applicant told the Court that he did not want to lose days with the child.
Principles to be considered
The parties have moved from arguing a contravention application to attempting to vary the previous parenting orders in order to avoid:
a)Further disagreements; and
b)Further court proceedings.
Where a court is deciding whether to make a particular parenting order in relation to a child, it must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA).
The primary considerations in determining what is in the child’s best interests, are set out in s.60CC(2) of the Act;
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are additional considerations set out in s.60CC(3). Not all of them are relevant to the matters presently before the Court, and it is not possible to make findings of fact in other areas, as the parties did not give evidence and the matter proceeded by way of submissions. However, it is clear that there is a need to make orders that would be least likely to lead to the institution of further proceedings in relation to the child (s.60CC(3)(l)).
In any parenting matter the Court must consider whether the presumption in s.61DA applies, that equal shared parental responsibility is in the best interests of the child.[4]
[4] Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 342; FLC 93-286
Conclusions
There is a need to vary the Orders made by Justice Le Poer Trench on 23rd October 2007 in order to:
a)Replace provisions that are no longer relevant; and
b)Provide clarity and precision in order to reduce the likelihood of misinterpretation.
School
Order 14 made on 23rd October 2007 stated:
It is noted that [X] will be required to attend a new school in the 2009 school year. The parties are to agree upon the school she is to attend and in the event of there being no agreement by the commencement of the 3rd term school holidays in the 2008 school year either parent may re-list the matter before me[5] for determination.
[5] i.e. Le Poer Trench J
Time has overtaken this Order. The parties have agreed that [X] should attend [N] School in 2013. According to the Family Consultant Memorandum, the applicant wishes to have this arrangement reviewed after two years, but the respondent does not. The applicant’s affidavit of 20th August 2010 states at 6.b:
I agree with Order 14 to be amended to the parties agreeing that [X] is to attend [N] School from 2013.
There is no mention of a review of that decision after two years, and I am not persuaded that anything has been shown to warrant such an order. If circumstances change, the order can be varied, but there is no need to make an order that would bring this matter back to court after two years.
Orders 12 and 13 provide for the parties to make their own contact with [X]’s school, whatever it may be at the time, so that they can attend Parent Teacher Nights and other activities, and so that they can obtain copies of relevant correspondence and school reports. [N] School, like many schools, has its own Website. There is no need to vary either order 12 or Order 13.
The existing Order 14 is to be discharged and replaced by a new Order 14A, which says:
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.
Christmas School Holidays
The Family Consultant Memorandum sets out an agreement by the parties to vary Order 15, which relates to the Christmas school holiday periods in each year. The applicant specifically agrees to that amendment in his affidavit of 20th August 2010 at 6.a:
Christmas: I agree to amend Order 15 as per the agreement reached with Ms M. Subsequently Order 18 is to be removed.
The existing Order 15 is to be discharged and replaced by a new Order 15A, which will incorporate the wording set out in the Family Consultant Memorandum:
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 periods 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).
Whilst the term “commencement of school” was used in the Family Consultant Memorandum, I have decided for the sake of precision to use the term “the day before the first day of the school term”. [X] lives with her mother during the school term and it would follow that she should be at home with her mother on the evening before the school term starts. The dates of school terms for New South Wales Government Schools are ascertainable from the NSW Public Schools Website.
It follows that Order 18 is to be discharged.
Removing the Child from Australia
The Family Consultant noted in her Memorandum to the Court that the parties had agreed to vary Order 25 so as to provide that each parent would be permitted to travel overseas with [X] at times that she is in that parent’s care, without seeking permission from the other parent. The proviso is that the child would not be taken into “any war torn areas”.[6] The Family Consultant noted that the applicant had suggested a reference to the Department of Foreign Affairs and Trade Smart Traveller Website so as to prevent the child being taken into any area with an “Exercise Caution” or lower rating on the Website and expressed the view that this seemed to be a good idea.
[6] Family Consultant Memorandum to Court 29.7.2010 page 2
The Department of Foreign Affairs and Trade has a Website which contains travel advice for every country. The Court can take judicial notice of this Website.
Whilst the Department’s Website is a useful guide to responsible parents in deciding where to take their child for a safe overseas holiday, I am of the view that it would be unduly restrictive on the parties to make an order restraining them from taking [X] into any area with an “Exercise Caution” rating. Such an order would exclude such countries as Belgium, Denmark, France, Italy, Sweden, the United Kingdom and the United States of America.[7]
[7] Travel Advice as at 1.10.2010
The next rating is “High Degree of Caution”, which would seem to be more appropriate in the circumstances.
Accordingly, I propose to discharge the current Order 25 and replace it with a new Order 25A:
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 Website in one of the following categories:
(a) High Degree of Caution;
(b) Reconsider your need to travel; or
(c) Do not travel.
The child’s passport
There is no existing order covering [X]’s passport. The parties have agreed that the child’s passport will be made available in sufficient time to allow her to travel. The respondent wishes to hold the passport, subject to making it available in sufficient time for her to travel.
The respondent believes that the passport can be provided two weeks beforehand, as the applicant sees the child every second week. The applicant believes that the passport should be provided four weeks beforehand, in case it needs to be replaced or the child requires a visa.
In the ordinary course of events, it should be sufficient for the passport to be made available two weeks before the proposed date of travel. If a visa is required, the matter can be considered on a case-by-case basis. It may take longer than four weeks to obtain a visa for a particular country, in which case the applicant may need to obtain the passport earlier.
As to replacement of a lost passport, there is no evidence of the time required to obtain a replacement. The parties live in Sydney, and in the ordinary course of events two weeks should be sufficient for a replacement.
I intend to make this order:
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.
Easter
The parties have not agreed about the time that the child spends with the mother during the Easter public holidays. The applicant has, in Attachment 24 to his affidavit of 20th August 2010, proposed two different arrangements, one of which would involve a rotation by means of an adjustment in the years 2012 and 2015, and the other would involve the child staying with the respondent if Easter were to fall on a weekend outside the school holiday period and then spend the next weekend with the applicant.
The respondent told the Court that she wanted to continue splitting the Easter holiday, so that the changeover would be on the Saturday evening, otherwise she believed that she would not have the child with her for four out of the next five Easter breaks.
The NSW Public Schools Website ( shows that the Autumn school holidays from 2011 to 2015 fall on the following dates:
a)Monday 11 April to Tuesday 26 April 2011;
b)Friday 6 April to Friday 20 April 2012;
c)Monday 15 April to Friday 26 April 2013;
d)Monday 14 April to Friday 25 April 2014; and
e)Friday 3 April to Friday 17 April 2015.
Easter from 2011 to 2015 falls on the following dates:
a)Good Friday 22 April to Easter Monday 25 April 2011;
b)Good Friday 6 April to Easter Monday 9 April 2012;
c)Good Friday 29 March to Easter Monday 1 April 2013;
d)Good Friday 18 April to Easter Monday 21 April 2014; and
e)Good Friday 3 April to Easter Monday 6 April 2015.
Easter falls within the NSW school holidays in 2011, 2012, 2014 and 2015. It is only in 2013 that Easter falls outside the school holidays.
The Orders of 23rd October 2007 prescribe in Order 3 the time for [X] to live with her father during the school holidays by reference to the weekends she lives with her father during the school term:
a. each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday. Unless otherwise specifically agreed between the parties in writing the father is to cause [X] to be collected from her school and returned to her school at the commencement and conclusion of these times.
b. half of all school holiday periods with the holiday period to commence on the Friday of the weekend that [X] would have been with her father pursuant to Order 3(a) hereof had there not been school holidays.
Order 3. f covers the situation where the child’s time with her father falls on a public holiday weekend:
where [X] is to be with her father for weekend time and on that weekend there is a public holiday or pupil free day either on Friday or Monday then the father’s time will extend to include those days.
There is no evidence as to which weekends [X] will be spending with each parent in order to calculate when she will be spending school holiday time with each parent.
However, between 2011 and 2015, Easter will fall within the school holidays for all but the year 2013. In my view, the Easter public holidays in 2013 should be treated like any other public holiday weekend, so that if the child were with the father the weekend before Easter she would spend the entire Easter weekend with the mother, and if she were with the mother the weekend before Easter, then she would spend the entire Easter break with the father.
The other four Easter holidays fall within the school holidays and should form part of the school holidays. Easter falls at the end of the school holidays in 2011, the beginning of the school holidays in 2012 and 2015, and the middle of the school holidays in 2014. Easter should be regarded as part of the school holidays in those years.
Accordingly, I propose to make the following orders:
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.
The Orders made on 23rd October 2007 provided in Order 1 that the parties should have equal shared parental responsibility. No submissions have been made that this situation should change and there is no reason to vary this Order.
These Orders have been drafted with a view to providing some clarity and precision in order to avoid the risk of misinterpretation. It is in the best interests of this child for her parents to have a set of orders that they can abide by without argument and further applications to the Court.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 14 October 2010
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