CHEW & FENG - [2021] FCCA 107

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHEW & FENG [2021] FCCA 107

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made - property adjustment – orders made.

Legislation:

Australian Passports Act 2005, s 11

Family Law Act 1975 (Cth), ss 60B, 106A, 60CA, 60CC, 75, 79

Cases cited:

Lotta & Lotta [2017] FamCA 50

Kessey & Kessey [1994] FamCA 162

Mabb & Mabb And Anor [2020] FamCAFC 18

Applicant: MR CHEW

Respondent: MS FENG

File Number: PAC5149 of 2018

Judgment of: Judge Newbrun

Hearing dates: 26 and 27 November 2020

Date of Last Submission: 26 and 27 November 2020

Delivered at: Parramatta

Delivered on: 27 January 2021
REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr Maddox of Counsel

Solicitors for the Respondent:
Mark Brown & Associates
ORDERS
Parenting
(1)That the Mother have sole parental responsibility for the child X born in 2017 relating to major decisions to be made for the child in relation to medical issues, but otherwise and subject to Order (19) below, the parties should have equal shared parental responsibility.
(2)Prior to the Mother making any major decision for the child in relation to medical issues, she shall take all reasonable steps to consult with the Father in relation to her proposed decision, and such consultation process shall occur in a timely fashion. Following such consultation, the Mother shall proceed to make her decision in relation to any relevant major decision affecting the child’s medical needs.
(3)That the child live with the Mother.
(4)That the child spend time with the Father:
(a)Until the child commences school:
(i)each alternate weekend from after preschool Friday until 4 PM Sunday;
(ii)from after preschool Wednesday until the start of preschool Thursday, and Fridays (from 9am to 3.30pm), of each intervening week;
(iii)for 2 periods each year, each of 5 days by agreement, and failing agreement, commencing 1 May and 2 November;
(iv)from 6 PM Christmas Day to 6 PM Boxing Day each year;
(v)on the Father’s Day weekend, from 6 PM Saturday until 6 PM Sunday;
(vi)such further times as the parties may agree.

(b)After the child commences school until the child’s 6th birthday:
(i)each alternate weekend from after school Friday until 4 PM Sunday;
(ii)from after school Tuesday until the start of school Thursday in the intervening week;
(iii)for one half of each school holiday period by agreement, and failing agreement, the second half in years ending with an even number, and the first half in years ending with an odd number, provided that Christmas school holiday should be exercised on a week about basis;
(iv)from 6 PM Christmas Day to 6 PM Boxing Day each year, provided that the Mother shall have the child in her care from 6 PM Christmas Eve until 6 PM Christmas Day each year;
(v)on the Father’s day weekend, from 6 PM Saturday until 6 PM Sunday, provided that the Father’s time shall be suspended on the Mother’s day weekend during the same times;
(vi)Such further times as…

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 CHEW & FENG

Details

AGLC: CHEW & FENG [2021] FCCA 107
Case: [2021] FCCA 107
Decision Date: 27 January 2021

CaseChat Overview and Summary

In the matter of CHEW & FENG, Judge Newbrun made orders concerning parenting arrangements for the child X and the adjustment of the parties' property. The dispute involved the allocation of parental responsibility, the child's living arrangements, and the division of assets.

The court was required to determine the best interests of the child X in relation to parenting orders, including the specifics of parental responsibility for major decisions, the child's residence, and the time the child would spend with each parent. Additionally, the court addressed the division of the parties' property, including the proceeds from the sale of a property, an investment portfolio, and other assets.

The orders reflect a determination of the child's best interests, granting the Mother sole parental responsibility for medical decisions after consultation with the Father, and establishing a detailed schedule for the child to live with the Mother and spend time with the Father. The property orders provided for the disbursement of sale proceeds from a property, the transfer of an investment portfolio to the Mother, and confirmed each party as the sole owner of property in their possession, with provisions for the Registrar to execute documents if a party refused to do so.

Orders

Orders of the court

Parenting

(1) That the Mother have sole parental responsibility for the child X born in 2017 relating to major decisions to be made for the child in relation to medical issues, but otherwise and subject to Order (19) below, the parties should have equal shared parental responsibility.

(2) Prior to the Mother making any major decision for the child in relation to medical issues, she shall take all reasonable steps to consult with the Father in relation to her proposed decision, and such consultation process shall occur in a timely fashion. Following such consultation, the Mother shall proceed to make her decision in relation to any relevant major decision affecting the child’s medical needs.

(3) That the child live with the Mother.

(4) That the child spend time with the Father:

(a) Until the child commences school:

(i) each alternate weekend from after preschool Friday until 4 PM Sunday;

(ii) from after preschool Wednesday until the start of preschool Thursday, and Fridays (from 9am to 3.30pm), of each intervening week;

(iii) for 2 periods each year, each of 5 days by agreement, and failing agreement, commencing 1 May and 2 November;

(iv) from 6 PM Christmas Day to 6 PM Boxing Day each year;

(v) on the Father’s Day weekend, from 6 PM Saturday until 6 PM Sunday;

(vi) such further times as the parties may agree.

(b) After the child commences school until the child’s 6th birthday:

(i) each alternate weekend from after school Friday until 4 PM Sunday;

(ii) from after school Tuesday until the start of school Thursday in the intervening week;

(iii) for one half of each school holiday period by agreement, and failing agreement, the second half in years ending with an even number, and the first half in years ending with an odd number, provided that Christmas school holiday should be exercised on a week about basis;

(iv) from 6 PM Christmas Day to 6 PM Boxing Day each year, provided that the Mother shall have the child in her care from 6 PM Christmas Eve until 6 PM Christmas Day each year;

(v) on the Father’s day weekend, from 6 PM Saturday until 6 PM Sunday, provided that the Father’s time shall be suspended on the Mother’s day weekend during the same times;

(vi) Such further times as the parties may agree.

(i) each alternate weekend from after school Thursday until the commencement of school Monday;

(ii) in the intervening week, on Friday from after school until 6pm;

(iv) from 6 PM Christmas Day to 6 PM Boxing Day each year, provided that the Mother shall have the child in her care from 6 PM Christmas Eve until 6 PM Christmas Day each year;

(v) on the Father’s day weekend, from 6 PM Saturday until 6 PM Sunday, provided that the Father’s time shall be suspended on the Mother’s day weekend during the same times;

(vi) Such further times as the parties may agree.

(5) Subject to Order (6) below, that for the purpose of facilitating orders for time, unless collection or return is to the child's pre-school/school, the Father shall collect the child from the Mother's residence at the commencement of time, and the Mother shall collect the child from the Father’s residence at the conclusion of time.

(6) In relation to the child spending time with the Father on Fridays during the daytime, the Father shall be responsible for effecting changeovers to and from the Mother’s residence.

(7) That weekend time shall be suspended during school holiday periods and resume following the commencement of each school term in the same alternate weekend pattern as if school holidays had not intervened.

(8) That school holidays shall be deemed to commence at 9.00 am following the last day of attendance at school and conclude at 5.00 pm immediately prior to the first day of attendance at school in the new term.

(9) That neither party physically chastise the child, nor allow any other person to do so.

(10) That neither party denigrate the other parent or anyone living in a close personal relationship with the other parent, to the child, nor allow any other person to do so.

(11) That each party shall keep the other informed of any significant issues relating to the health and general wellbeing of the child and shall forthwith advise the other of any accident or significant illness affecting the child including providing details of treatment and attendance at doctors and hospitals.

(12) The parties shall consult with each other in relation to any significant education issue regarding the child and ensure that the other party has an opportunity to attend at parent/teacher interviews arranged in relation to the child.

(13) That the Mother ensure that she makes available to the Father, a current telephone number and Skype account on which the Father can contact the child during times referred to herein, or for emergencies.

(14) That each parent be permitted to attend any school, sporting or other extracurricular activity for the child in the nature of which parents are usually invited to attend, and be permitted to obtain from the pre-school or school any newsletter published by the school and any information in relation to the child's progress, including school reports.

(15) That each parent shall facilitate the child's reasonable request to contact the other parent, within a reasonable time of such request being made, or in the case of medical emergencies.

(16) That the Mother do all things and sign all documents to ensure that the Father’s name is placed on the emergency contact list of any pre-school or school that the child attends.

(17) That each parent forthwith advise the other of any medical treatment or prescription for medication and ensure that such medications are delivered with the child at the time of changeover.

(18) That each party keep the other informed of their respective addresses and telephone numbers including landline and mobile and:-

(a) Give to the other party at least 28 days ·written notice of any intention to relocate

(b) In such notice of intention to relocate, stipulate the location of the proposed new residence.

(c) Immediately upon relocating, provide to the other party written notification of the changed address and telephone number.

(19) That the Mother shall have sole parental responsibility in relation to signing all necessary documentation, organising and obtaining an Australian passport for the said child.

(20) That pursuant to section 11(1) of the Australian Passports Act 2005, these orders provide authority for the Minister of Foreign Affairs or delegate of the Minister to issue an Australian Passport for the child.

(21) That the Australian passport issued to the said child shall be provided to the Mother to hold on behalf of the child.

(22) That either party be permitted to travel outside the Commonwealth of Australia with the child, and in the event of proposed overseas travel:

(a) The travelling party shall notify the other party of an intention to travel at least 8 weeks prior to the departure date;

(b) At that time, the travelling party shall provide to the other party a printed itinerary and copy of return travel tickets for both the travelling party, and the child;

(c) At least one week prior to the departure, the travelling party shall provide to the other party a telephone contact number upon which the travelling party and child can be contacted, whilst overseas;

(d) If the travelling party is the Father, the Mother shall provide the child’s passport to the Father at least 2 weeks prior to the departure date and the Father shall return the passport to the Mother within 1 week of return to Australia.

(23) That at the request of either of them, and within a 1 year period prior to the expiry of the child’s current passport, the parties shall do all things and sign all document to cause a new passport to be issued for the child and:

(a) The requesting party shall pay for the passport;

(b) The passport shall be retained in the Mother’s possession, subject to provision of it to the Father, to enable travel, in accordance with the terms of these orders.

Property

(24) That the parties forthwith do all things and sign all necessary documents to cause the solicitor for the Mother, Mark Brown of Mark Brown & Associates, to disburse the proceeds of sale of the property at F Street, Suburb G as follows:

(a) The sum of $198,629 to the Mother;

(b) $54,501 to the Father;

(25) That the parties forthwith do all things, and sign all documents necessary to cause their Investment Portfolio to be transferred to the Mother.

(26) That the Father and Mother do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein.

(27) That except as otherwise provided for in these Orders, the Father and Mother each be the sole legal and beneficial owners of all items of all property including furniture, money, motor vehicles, insurances, equities, superannuation entitlements, and personal effects, currently in the possession or control of each of them respectively to the exclusion of the other.

(28) That in the event that either party refuses to execute any deed or instrument necessary to give effect to these Orders, within seven (7) days of being requested so to do, the Registrar of the Court be appointed pursuant to Section 106A to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.

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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