CHAVES & CHAVES - [2020] FamCA 418

FAMILY COURT OF AUSTRALIA

CHAVES & CHAVES

[2020] FamCA 418

FAMILY LAW – CHILDREN – With whom the children spend time – Where each of the parties proposes minor changes to the existing interim parenting orders – Where the father seeks orders for make-up time as a result of not spending time with the children during the Christmas school holidays – Where the existing orders made no specific provision for the father’s time with the children during the Christmas school holidays – Where it is not appropriate to order make-up time – Orders made for the father to spend time with the children during future Christmas school holiday periods – Applications otherwise dismissed.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA

Champness & Hanson (2009) FLC 93-407
Eaby & Speelman(2015) FLC 93-654
Goode & Goode (2006) FLC 93-286
McCall & Clark (2009) FLC 93-405
SS v AH[2010] FamCAFC 13

APPLICANT:

Mr Chaves

RESPONDENT:

Ms Chaves

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

925

2019

DATE DELIVERED:

1 June 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

18 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Livingstone

SOLICITOR FOR THE APPLICANT:

Beswick Lynch Lawyers

RESPONDENT:

Mother in person

INDEPENDENT CHILDREN’S LAWYER:

Ms Smith

Orders

In addition to such other changes as are agreed between the parents in writing, the Orders made on 13 June 2019 are varied pending further order to provide that the father also have time with the children X born … 2009, Y born … 2011 and Z born … 2015:
(a)in the 2020/2021 Christmas school holidays and in each alternate year thereafter, from:
(i)the conclusion of the last day of school in December 2020 to 12 noon on 21 December 2020; and
(ii)12 noon on 25 December 2020 to 5.00 pm on 10 January 2021.
(b)in the 2021/2022 Christmas school holidays and in each alternate year thereafter, from:
(i)12 noon on 21 December 2021 to 12 noon on 25 December 2021; and
(ii)5.00 pm on 10 January 2022 to 5.00 pm on 26 January 2022.
Otherwise the interim parenting applications of the parties are dismissed.
Leave is granted to the parties to bring the matter back before the Court within 28 days, or such further time on which the parties may agree, in relation to the wording of the orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chaves & Chaves has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA…

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.

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Details

AGLC: CHAVES & CHAVES [2020] FamCA 418
Case: [2020] FamCA 418
Decision Date: 1 June 2020

CaseChat Overview and Summary

In *Chaves & Chaves*, Loughnan J of the Federal Circuit and Family Court of Australia considered interim parenting orders concerning three children. The dispute involved the father seeking increased time with the children, which the mother opposed.

The primary legal issue before the court was whether to vary the existing parenting orders to grant the father additional time with the children during school holidays. The court was required to determine the specific arrangements for the father's time with the children, particularly in relation to the Christmas school holidays, and to decide on the disposition of the parties' interim parenting applications.

Loughnan J reasoned that a variation of the existing orders was appropriate to facilitate increased time for the father. The court applied principles relating to the best interests of the children, balancing the need for the father to have meaningful time with his children against the existing arrangements and the children's welfare. The court's decision reflected a pragmatic approach to interim arrangements, aiming to provide clarity and structure for the children and parents.

The court ordered that the existing orders made on 13 June 2019 be varied pending further order to provide the father with specific periods of time with the children during the Christmas school holidays in alternate years, commencing with the 2020/2021 holidays. Otherwise, the interim parenting applications of both parties were dismissed. Leave was granted for the parties to return to court within 28 days to address the precise wording of the orders.

Orders

Orders of the court

In addition to such other changes as are agreed between the parents in writing, the Orders made on 13 June 2019 are varied pending further order to provide that the father also have time with the children X born … 2009, Y born … 2011 and Z born … 2015:

(a) in the 2020/2021 Christmas school holidays and in each alternate year thereafter, from:

(i) the conclusion of the last day of school in December 2020 to 12 noon on 21 December 2020; and

(ii) 12 noon on 25 December 2020 to 5.00 pm on 10 January 2021.

(b) in the 2021/2022 Christmas school holidays and in each alternate year thereafter, from:

(i) 12 noon on 21 December 2021 to 12 noon on 25 December 2021; and

(ii) 5.00 pm on 10 January 2022 to 5.00 pm on 26 January 2022.

Otherwise the interim parenting applications of the parties are dismissed.

Leave is granted to the parties to bring the matter back before the Court within 28 days, or such further time on which the parties may agree, in relation to the wording of the orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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