Chattarak & Hegadi
[2022] FedCFamC1F 926
Federal Circuit and Family Court of Australia
(DIVISION 1)
Chattarak & Hegadi [2022] FedCFamC1F 926
File number(s): DGC 900 of 2019 Judgment of: BENNETT J Date of judgment: 15 July 2022 Catchwords: FAMILY LAW- PARENTING- where parties cannot agree on interpretation of a provision in a final parenting order which was sought and made by consent – matter brought back to court irregularly – particular provision varied so that interpretation is beyond doubt. Legislation: Family Law Act 1975 (Cth) s 69ZN Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 15 July 2022 Place: Melbourne (via MS Teams) Counsel for the Applicant: Litigant in person Counsel for the Respondent: Litigant in person ORDERS
DGC 900 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HEGADI
Applicant
AND: MR CHATTARAK
Respondent
order made by:
BENNETT J
DATE OF ORDER:
15 JUly 2022
THE COURT ORDERS THAT:
1.Paragraph 5 of the final parenting Order made on 18 May 2022 is varied as follows:
“If changeover is not effected at kindergarten or school because kindergarten or school is closed, changeover for the purpose of spending time is to take place inside Macdonald’s Family Restaurant at [B Street, Suburb C].”
IT IS DIRECTED:
2.That the email thread initiated by the mother on Wednesday 29 June 2022 at 3.42pm and replied to by the father on Wednesday 29 June 2022 at 4.29 pm and by the mother on Wednesday 29 June 2022 at 8.34pm be marked Exhibit “A” and remain on the Court file.
AND IT IS NOTED:
A.That final parenting orders were made in this matter on 18 May 2022 by consent.
B.That paragraph 25 of the Order made on 18 May 2022 states “If the parties are unable to agree on any matter arising out of these orders, they will refer their dispute to a Family Relationships Centre for a family dispute conference before initiating court proceedings”.
C.That paragraph 31 of the Order made on 18 May 2022 states “Both parties shall adhere to the current orders, and they shall each be restrained from making unilateral changes to the orders without the consent in writing of the other party. If there is a breach of orders without valid reasons, the party committing the breach is responsible for the litigation costs of the other party”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Chattarak & Hegadi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPOREBENNETT J:
This matter comes before me as a mention which has been requested by the husband, Mr Chattarak, essentially to interpret orders made by me on 18 May 2022 which finalised parenting proceedings in this Court concerning the parents’ only child, X, born 2017. In order to provide context to my determination today, I should say that this is a high-end parental conflict case in which there is hardly any common ground between the parents. The proceedings have been before the Court since 2019 and have involved various criminal charges being brought against the father and then being dismissed. The manner in which the matter has been listed and conducted is out of the ordinary. However, the controversy is a narrow parenting issue which is easy to solve. Both parents seek a resolution today. This facilitative and remedial approach is, in my view, consistent with the principles for conducting child related proceedings under Part VII – Division 12A of the Family Law Act 1975 (Cth). In particular, Principles 6 and 7.
Section 69ZN provides:
(1) The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b)in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
I don’t want to make a habit of the facilitative approach but in this instance, a pragmatic approach is best for the parents and the child.
The final parenting order made on 18 May 2022 provides a regime for contact. Orders were made in the terms of minutes submitted by the parties and were sought by consent. Paragraph 5 of the order provides:
If changeover is not to be effected at kindergarten or school, changeover is to take place inside the McDonalds family restaurant at [B Street, Suburb C].
The wording to which I have referred is the wording that was proposed by the parties.
At the time of the hearing (18 May 2022) the parties were represented, Ms D of counsel appeared on behalf of the applicant wife and Mr E of counsel appeared on behalf of the respondent husband. The child’s interests were represented by an independent children’s lawyer for whom Mr F of counsel appeared.
On 29 June 2022, the mother wrote to my associate in the following terms, omitting formal and irrelevant parts:
I thank you for providing the sealed copies of the recently finalised parenting orders.... Order 5 of the orders is made on the 18th of May 2022, is causing misinterpretation and I am seeking some clarification and possible amendment.
…the changeover for [X] has been the childcare (pickup and drop off) since last orders made by her Honour on 9 February 2021. Order 2 and 3 of these orders indicate the same and otherwise at [Suburb G] police station (copy attached). At the time the final orders were made the intent was to continue with the same arrangement but only change the police station to McDonalds to allow [X] a more safe environment.
The reason for keeping childcare is the changeover place on the days when [X] is picked up from childcare, has always been to have supervised changeover where possible. However the days that they are not operational, the changeover can occur at McDonalds family restaurant that is my understanding of order number 5 (sic) considering that Intervention Order is in place as there has been numerous reported breaches, I have preferred to keep the contact as minimum as practically possible. The changeover time at 6 pm was also suggested through the acting Barristers to allow [X] to be dropped off by the father and mother to pick up once the father leaves allowing a smooth changeover. The childcare has been able to facilitate the changeover and is confirmed to continue doing so as [X] is very familiar with educators and environment.
Since there seems ambiguity around this part of the order from the father leading to potential breach, if not rectified. Could I kindly request under the Slip Rule to rectify and allow clarity. If agreeable by her Honour it can be amended as follows, on the days [X] attend childcare or school, the changeover continues to be at the foyer of the childcare or school and otherwise shall occur inside McDonalds family restaurant at [B Street, Suburb C] unless otherwise agreed between the parties.
I would hereby request the court to consider the request and allow a hearing to amend for clarity for parents and Childcare.
Approximately an hour later on Wednesday, 29 June 2022 my Associate received correspondence from the father which, omitting formal and irrelevant parts, reads:
I disagree with [Ms Hegadi]’s contention that there is a slip up in the orders.
The intention of this order was for the child to have minimum disruption and move away from exchanges happening at the police station to a much more friendly environment like the McDonalds play area. These were consent orders and were made prepared by her lawyers.
Every time the child returns to the childcare at 6pm he feels as if he is returning to school and does not want to return back to the mother. There have been numerous incidences in the past where the child has refused to return back to the mother at all. The carpark is a dark and unfriendly place to facilitate child exchange.
To clarify we are not being supervised by any childcare staff when we exchange the child in the carpark before these orders were made.
Further, there are no breaches of IVO, previously or currently as alleged by the mother.
Exchanging the child at McDonalds play area gives the child for smooth and stress-free exchange under a camera. Please note, as per orders, we exchange the child at the same McDonalds on other days.
The orders are clear and there’s no ambiguity in my opinion.
Four hours later, at 8.34 pm on Wednesday 29 of June 2022 the following communication was sent by the mother to my chambers. Omitting formal and irrelevant parts, it reads as follows:
Dear Associate,
Please find a screenshot of the email correspondence between myself and my lawyer and barrister. As indicated before, the intent was not to change any arrangement from both sides (indicated by the Barrister) but only alter the times and that is my understanding of the new orders. The only change requested and agreed was for the police station to MacDonalds for the times Childcare or school cannot facilitate changeover.
[Mr Chattarak] has conveniently followed these new orders from 18 May 22 until today and continued the drop off at Childcare on Wednesdays pursuant to Order 3 (b), however his understanding seems to have changed and [X]’s drop off to Childcare was denied today and instead was asked to be picked up from MacDonalds without any arrangement. Email from childcare for the same can be provided upon request. For better understanding, please clear Order 5 of the orders made before The Honourable Justice Bennett on 18th May 22 and there is clear ambiguity.
I have spoken to my lawyer who share the same understanding as me, and have advised me to write to you directly to seek clarification as they do not act on my behalf anymore.
I will await your consideration and response.
Kind regards
[Ms Hegadi]
The attachment contained an email from the mother to her barrister which read as follows:
Hello [Mr E],
As I told you earlier, 6.30 childcare closes and it has been very difficult at the time of changeovers. Sometimes the child acre (sic) educators have to wait only for [X] to reach before they can close down. I agreed to it not permanently but only until we come to court for final orders.
The mother’s barrister replied to the mother, stating:
The message from 1:32pm refers to the arrangement as “a permanent one” and you replied at 1:53pm with “Ya all good”.
It will be very difficult to argue that the agreement is not permanent.
Can you explain to my why changeover is difficult at 6:30pm if childcare closes at 6:30pm? It is because the father is late at times?
I am happy to take it to the father again, but I am at complete odds as to why the current arrangement should be changed where there is no evidence before the court as to why it should and you objectively agreed to a permanent arrangement (whether you subjectively intended to do so or not).
All of the above correspondence is in evidence and marked as exhibit “A”. I pause here to comment that this a superior court of record. Litigation is conducted by the filing and serving applications and responses, reliance on admissible evidence as contemplated by Subdivision D of Division 12A. Litigation is conducted in court, the proceedings are recorded and the process is transparent. Proceedings are not conducted email or correspondence. I directed that the matter be listed. Notwithstanding that I am functus officio I have some remedial power to correct an order so that it reflects what the court intended to pronounce.
Today each parent is self-represented. There is no appearance by or on behalf of the independent children’s lawyer. The request for appointment of an independent children’s lawyer was discharged by paragraph 34 of the Order made on 18 May 2022.
Under cover of seeking “clarification” each parent wants his or her interpretation of paragraph 5 the Order is to be preferred over the interpretation of the other party. They do so absent any enforcement application or a contravention application or in the context of a dispute which requires interpretation of the Order.
The parents’ submissions were predominantly directed to what each they intended the paragraph to mean on the day that the order was made. However, the ‘slip rule’ operates to give expression to what the court intended, not what individual parties intended. Once the order is made it is for the court to discern its meaning. It is not for one parent to argue why their individual motivation (intent) for agreeing to the minute of order is to be preferred over the motivation (intent) of the other parent.
Furthermore, the function of the court is to quell disputes between parties by determining rights and obligations of parties. The court does provide advisory opinions.
The oft cited rule for interpretation, being to look at the text, context and purpose, is easy to state but not necessarily straightforward to apply. Each parent requests that paragraph 5 re-expressed.
Essentially, the father contends that paragraph 5 permits him to choose where changeover should be, that is, either at school or inside the specified McDonalds family restaurant. He submitted that McDonalds is a preferable changeover point to childcare or school. On the other hand, the mother contends that changeover is to be at childcare or school and if, and only if, childcare or school is not operating or open on that day, is changeover to occur inside the specified McDonalds family restaurant.
I do not accept the father’s contention as to the interpretation of paragraph 5. Paragraph 5 does not permit a parent to choose the changeover point, it merely provides where changeover will occur if the kindergarten or school is closed. If the father’s contention was correct, there would need to be some provision for one or other party to make the election about the location of changeover was to be effected. Clearly there is not.
The proper construction of paragraph 5 is that, if the kindergarten or school is not open or operating on the day of the changeover, changeover is to take place inside McDonalds Family Restaurant at B Street, Suburb C. This interpretation is purposeful, reasonable and sits comfortably within the balance of the Order. I am satisfied that the amended order gives expression to what was intended to be pronounced by the court. It is an interpretation which is consistent with the best interests of the child.
I have amended paragraph 5 of the Order to give the parties and, through them, the child clarity. This is not the interpretation for which the father contended. It is much closer to the interpretation for which the mother contended.
This Order as amended today will stand unless or until it is discharged by the Court. If one of the parties makes an application for a different parenting order, including one which coincides with what he/she says was his/her intention on 22 May 2022, consideration will need to be given by the court as to whether there has been a sufficient change in circumstances to warrant the Court reopening litigation so close to a final order having been made (Rice & Asplund (1979) FLC 90-725).
Notably, paragraph 25 of the Order made on 18 May 2022 states “If the parties are unable to agree on any matter arising out of these orders, they will refer their dispute to a Family Relationships Centre for a family dispute conference before initiating court proceedings”.
I am satisfied that the Order is proper within the meaning of section 65D.
Section 61DA provides that when making a parenting order in relation to the child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The ambit of this dispute is much narrower than that which calls for a consideration of parental responsibility. In any event, the parents have equal shared parental responsibility for X.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 25 November 2022
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