Chen & Chen

Case [2022] FedCFamC1F 40

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Chen & Chen [2022] FedCFamC1F 40

File number(s): SYC 7716 of 2021
Judgment of: CAMPTON J
Date of judgment: 7 February 2022 
Catchwords: FAMILY LAW – REVIEW OF A SENIOR REGISTRAR’S DECISION – Where the father seeks a review of the senior registrar’s decision that the children live with the mother and spend time with the father each alternate weekend and on two evenings each week, and that they be enrolled in a school nearby to the mother’s residence – Where an interim order for joint parental responsibility has been made by consent – Where an equal time or substantial and significant time arrangement is not practical due to the distance between the parties’ homes, the conflict and communication issues between the parents and the father’s work commitments – Where it is found to be in the children’s best interests to live with the mother and spend time with the father on two evenings each week and alternate weekends – Where it is in the children’s best interests to attend a school proximate to their primary residence with the mother – Review dismissed save amendment to collection and delivery times during the school week.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 65D, 65DAA
Cases cited:

Bilz & Breugelman [2013] FamCA 578

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode (2007) 26 Fam LR 422

McCall & Clark (2009) 41 Fam LR 483

MRR v GR [2010] HCA 4

Re G: Children’s Schooling (2000) FLC 93-025
Division: Division 1 First Instance
Number of paragraphs: 134
Date of hearing: 28 January 2022
Place: Sydney
Counsel for the Applicant: Mr Givney
Solicitor for the Applicant: Super & Super Lawyers
Counsel for the Respondent: Ms Mahoney

ORDERS

SYC 7716 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR CHEN

Applicant
AND:

MS CHEN

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

7 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The father’s Application for Review of Orders 1, 2 (as to time spent during the school term), 3, 4 and 5 made by the senior judicial registrar on 14 January 2022 as amended by the slip rule on 18 January 2022 be dismissed and the said orders be confirmed.

2.Order 2 of the orders made by the senior judicial registrar (as to the time spent by the father with the children during the school term mid-week) be varied so that he collect the children from the mother’s residence at 5.45 pm on each Tuesday and Thursday and return them to the mother’s residence at 7.30 pm unless otherwise agreed between the parties in writing.

3.Pending further order, the mother be restrained from doing any act or thing so as to facilitate or permit the children to engage in an extra-curricular activity during the father’s mid-week time unless otherwise agreed by the father in writing.

4.All interim applications and responses to interim applications as to parenting otherwise be dismissed, save and…

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Chen & Chen [2022] FedCFamC1F 40
Case
[2022] FedCFamC1F 40
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Chen & Chen was heard and determined. The dispute centred on the best educational environment for the two children of the parents, who had separated and were in the process of finalising their parenting arrangements. The central legal issue before the court was determining which school, C School or B School, was in the best interests of the children. The parents provided extensive evidence regarding the merits of each school and the implications for the children's education, well-being, and social development. The court had to weigh these submissions carefully in light of statutory considerations outlined in section 60CC of the Family Law Act.

The court examined the children's current educational and social contexts, their views and preferences, and the potential impacts of a change in school. The court also considered the stability and continuity provided by B School, where the children had been enrolled since their early years, as well as the potential benefits of a fresh start at C School. The analysis included an assessment of each parent's capacity to support the children's educational and emotional needs, the role of extended family members in their lives, and the overall environment each school could offer. After thorough deliberation, the court concluded that a change to C School was in the children's best interests, considering the unique opportunities and challenges it presented.

Ultimately, the court found that, despite the familiarity and stability of B School, the benefits of attending C School outweighed the drawbacks. The decision was based on the potential for academic and personal growth, the school's specific programs, and the overall educational environment. The court ordered that the children would commence at C School from the beginning of the next school term, subject to the parents' cooperation in facilitating this transition.

Orders

Orders of the court

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Background

Background to the litigation

The mother relied upon the following documents:·Response to an Initiating Application, filed 16 November 2021;·Notice of Child Abuse, Family Violence and Risk, filed 16 November 2021;·Parenting Questionnaire filed 16 November 2021;·Mother’s Financial Statement, filed 16 November 2021;·Mother’s affidavit, filed 16 November 2021 (“the mother’s affidavit”);·Mother’s affidavit, filed 28 January 2022 (“the mother’s supplementary affidavit”);·Case Outline, filed 28 January 2021 and marked as Exhibit M1 for the purpose of the Review Hearing.BACKGROUND The parents married in 2009. They separated on 27 December 2020 but remained living together in their home at F Street, Suburb H in NSW (“the F Street Property”). The oldest child, X, was born in 2013. After her birth the mother took a period of nine months of maternity leave to care for her. The father continued with his full-time employment. In March 2014, the mother returned to work on a part-time basis, her hours of employment then being from 7.00 am to 4.00 pm, three days per week. On the days that the mother worked, the father’s parents (“the paternal grandparents”) cared for X. Each party acknowledged and it was uncontroversial that the paternal grandparents have played a significant role in the children’s care from that time. In 2015, X commenced attending day-care on two days per week while the mother worked, and on a third day was cared for by the paternal grandparents, who also assisted in X’s drop-offs to and pick-ups from day-care. The parties’ youngest child, Y, was born in 2017. The mother took a further period of maternity leave for 12 months to care for both children. She returned again to work three days per week in early 2018. From that time Y attended day-care on two days per week and was cared for by the paternal grandparents on one day per week. X commenced at the B School at Suburb E in 2019. She is commencing year three in 2022. Y attended prep school at the B School in 2021 and is commencing kindergarten in 2022. The paternal grandparents cared for the children in the morning and afternoon on days when the parents both worked, including arranging breakfast and dinner for them, bathing them, assisting with homework and facilitating their drop-off to and collection from school or day-care. Following their separation in December 2020, the parents continued to share in the care of the children as they had done before their separation. In May 2021, while separated under one roof, the parties engaged in discussions facilitated by the father’s brother-in-law as to their ongoing parenting of the children. They drafted a parenting plan that formed Exhibit H-1 to the father’s affidavit (“the parenting plan”). The parties did not implement the parenting plan at that time. On 4 September 2021 the mother left the F Street Property and took up rental accommodation in Suburb J. On 14 September 2021 the father vacated the F Street Property. The sale of the property was completed three days later. He moved in “temporarily” with his parents at their home. They also live in Suburb H. It was his evidence that he wanted the children to have “stability and remain living in the same area and close to the B School”. His affidavit evidence records that he proposes to move into his own rented accommodation in the Suburb H area in December 2021. He is yet to do so.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This is a finely balanced matter to consider but ultimately, in all these circumstances and in my view, it is in the children’s best interests to attend C School.CONCLUSION For all of these reasons, I make the orders as set out in the commencement of these reasons for judgment.

Ratio Decidendi

Legal Principle Established

Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:(1)Issues relating to the children – their views, level of maturity, culture and relationships:(a)Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;(b)Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;(c)Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and(d)Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.(2)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:(a)Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child; (b)Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;(c)Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and(d)Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.(3)Issues of family violence:(a)Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and(b)Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.(4)Practical difficulty of implementation:(a)Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.(5)Avoiding further proceedings:(a)Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. (6)Other relevant matters:(a)Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.CONSIDERATIONSection 60CC Considerations A number of the considerations set out above are not able to be applied in this case, and I will refer only to those which are relevant.