Chapa and Chapa - [2012] FMCAfam 1420

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHAPA & CHAPA

[2012] FMCAfam 1420

FAMILY LAW – Interim parenting – children aged 6 and 3 – mother unilaterally moving with children interstate at time of final separation – mutual allegations of child abuse – allegations by mother of family violence against her by father – allegations by father of mental instability of mother.

Family Law Act 1975 ss.4(1), 4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Applicant:

MR CHAPA

Respondent:

MS CHAPA

File Number:

PAC 4726 of 2012

Judgment of:

Halligan FM

Hearing dates:

6, 17 & 18 December 2012

Date of Last Submission:

18 December 2012

Delivered at:

Parramatta

Delivered on:

18 December 2012

REPRESENTATION

Counsel for the Applicant:

Ms Obradovic

Solicitors for the Applicant:

Sheather Solicitors

Counsel for the Respondent:

Ms Goff

Solicitors for the Respondent:

R J Cole and Partners

Solicitors for the Independent Children’s Lawyer:

Ms O’Donnell
Legal Aid Commission

ORDERS

Pending further order, the children, [X] born [in] 2006 and [Y] born [in] 2009, shall live with the mother and the mother may remain living in the Adelaide area.
Pending further order, orders are made in accordance with paragraphs 10(a) to (d) and 11 to 14 of the Independent Children’s Lawyer’s minute of proposed orders, marked exhibit C.
Pending further order, orders are made in accordance with paragraphs

5 to 7 of exhibit C.
Pending further order, the father shall spend time with the children each Christmas Eve and each Boxing Day, from 10 am to 6 pm. Changeover is to occur at the maternal grandmother’s residence.

IT IS NOTED that publication of this judgment under the pseudonym Chapa & Chapa is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 4726 of 2012

MR CHAPA

Applicant

And

MS CHAPA

Respondent

REASONS FOR JUDGMENT

This is the hearing of competing interim parenting applications concerning two young boys, [X] born [in] 2006 and [Y] born [in] 2009. The parties are the children’s parents.
Most of the pertinent facts in this matter are in dispute. As is usual in an interim matter there has been no cross-examination of any witness. As is less usual in a matter of this kind, there has been a large number of affidavits not only by each of the parties themselves but also by supporting witnesses that has resulted in a significant protraction of this interim hearing without adding any real benefit or casting any greater light than might have come from one comprehensive and coherent affidavit from each party.
Be that as it may, the father is 26, the mother is 37. As I have just indicated the two children were aged 6 and 3 years 10 months respectively. The commencement of the parties cohabitation is but one of the many facts in dispute. The father suggests that it was in August 2005, the mother 26 December 2006. The date of marriage, thankfully, is agreed, [omitted] 2008, as is the date of final separation,

13 October…

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 Chapa and Chapa

Details

AGLC: Chapa and Chapa [2012] FMCAfam 1420
Case: [2012] FMCAfam 1420
Decision Date

CaseChat Overview and Summary

The Federal Magistrates Court was tasked with deciding interim parenting orders for two young boys, aged six and three, following the separation of their parents. Both parents sought different parenting arrangements, with the father seeking the children live with him and spend time with the mother, while the mother sought sole parental responsibility and for the children to spend time with the father under supervision. The Independent Children’s Lawyer proposed that the children return to Sydney, with the mother agreeing to do so if ordered, and recommended a specific time-sharing arrangement with the father. The court considered the best interests of the children as the paramount consideration, applying the relevant considerations identified in section 60CC of the Family Law Act 1975. The court found that both parents had made serious allegations against each other, including allegations of child abuse and family violence, but neither had taken steps to protect the children from these alleged risks. The court was troubled by the inconsistencies in the evidence and the failure of both parents to secure the safety of the children. Despite the father's allegations of the mother's mental instability and risk of neglect, the court found that the mother had habitually been the primary carer for the children and that their separation from her would have a more significant adverse impact. The court also found that ordering the mother to return to Sydney would compromise her ability to parent the children effectively. Therefore, the court ordered that the children remain with their mother in Adelaide, with specific time-sharing arrangements with the father, and without the need for supervision. The court did not make any parental responsibility orders, considering the extensive factual dispute between the parents and the seriousness of the issues in dispute.

Orders