Chiles & Petrenko

Case [2024] FedCFamC1A 112

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Chiles & Petrenko [2024] FedCFamC1A 112

Appeal from: Petrenko & Chiles [2024] FedCFamC2F 1444
Appeal number: NAA 354 of 2023
File number: SYC 7025 of 2018
Judgment of: TREE J
Date of judgment: 12 July 2024
Catchwords: FAMILY LAW – APPEAL – Parenting – Where the primary judge made orders providing that the child’s overnight time with the father was required to be supervised by the maternal grandparents and made orders permitting a change in the child’s name – Inadequacy of reasons – Where the primary judge gave no cogent reason for finding that the risk the father posed to the child was different at night – Assertion of evidentiary error – Where there was historical evidence from some years earlier of how the child was likely to react to a change of surname – Assertion of discretionary error – Where the primary judge did not need to repeat a relevant consideration when specifically considering a separate issue – Appeal allowed in part – Matter partially remitted for rehearing.
Cases cited:

Bant & Clayton (2015) 53 Fam LR 222; [2015] FamCAFC 222

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

House v The King (1936) 55 CLR 499; [1936] HCA 40

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Monie v The Commonwealth (2005) 63 NSWLR; [2005] NSWCA 25
Number of paragraphs: 67
Date of hearing: 4 June 2024 
Place: Cairns via video link
Counsel for the Appellant: Mr Cox SC and Mr O’Brien
Solicitor for the Appellant: Family Focus Legal
Counsel for the Respondent: Dr Barnett SC
Solicitor for the Respondent: Barkus Doolan Winning

ORDERS

NAA 354 of 2023
SYC 7025 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR CHILES

Appellant
AND:

MS PETRENKO

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

12 JULY 2024

THE COURT ORDERS THAT:

1.Save that on 4 June 2023 the father was given leave to rely upon a Further Amended Notice of Appeal dated 20 May 2024, the Application in an Appeal filed 21 May 2024 is dismissed.

2.The appeal is allowed in part.

3.Orders 20, 23 and 24 of the Federal Circuit and Family Court of Australia (Division 2) made 27 November 2023 are set aside.

4.Otherwise, the Further Amended Notice of Appeal dated 20 May 2024 is dismissed.

5.The issue of what, if any, conditions other than Order 19 of the primary judge’s orders, should, until 27 November 2025, be imposed upon the appellant spending time with the child X Chiles Petrenko, born 2015 is remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.  

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…

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AGLC
Chiles & Petrenko [2024] FedCFamC1A 112
Case
[2024] FedCFamC1A 112
Decision Date

CaseChat Overview and Summary

In the matter of Chiles & Petrenko, the appellant, Mr Chiles, and the respondent, Ms Petrenko, were involved in a lengthy dispute regarding parenting arrangements for their child, born in 2014. The primary judge made orders on 27 November 2023, which included that the father's overnight time with the child must be supervised by the maternal grandparents and that a change in the child's name be permitted. The father appealed certain aspects of these orders, arguing that the reasons provided by the primary judge were inadequate, that there was an evidentiary error, and that the judge made a discretionary error in her consideration of the child's surname.

The key legal issues before the court were whether the reasons provided by the primary judge were adequate and whether there were any errors in her consideration of the father's risk to the child at night, the evidentiary basis for her findings, and her discretionary decision regarding the child's surname. The court found that while the primary judge adequately considered the father's risk to the child during the day, she provided insufficient reasons for her conclusion that the risk at night was different. The court also noted that the primary judge's consideration of the child's surname did not adequately address the evidence presented. However, the court did not find that the primary judge made an error of discretion in her overall consideration of the child's best interests.

Consequently, the appeal was allowed in part. Orders 20, 23, and 24 of the primary judge’s orders were set aside, and the matter was remitted for rehearing before a different judge to determine what conditions, if any, should be imposed on the father's spending time with the child until 27 November 2025. The rest of the appeal was dismissed.

Orders

Orders of the court

NAA 354 of 2023

SYC 7025 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR CHILES

Appellant

AND:

MS PETRENKO

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

12 JULY 2024

THE COURT ORDERS THAT:

1. Save that on 4 June 2023 the father was given leave to rely upon a Further Amended Notice of Appeal dated 20 May 2024, the Application in an Appeal filed 21 May 2024 is dismissed.

2. The appeal is allowed in part.

3. Orders 20, 23 and 24 of the Federal Circuit and Family Court of Australia (Division 2) made 27 November 2023 are set aside.

4. Otherwise, the Further Amended Notice of Appeal dated 20 May 2024 is dismissed.

5. The issue of what, if any, conditions other than Order 19 of the primary judge’s orders, should, until 27 November 2025, be imposed upon the appellant spending time with the child X Chiles Petrenko, born 2015 is remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons which follow, the appeal will be allowed in part, but otherwise dismissed. BACKGROUND The father is 42 years of age. The mother is 49 years of age. The child was conceived in 2014 whilst the parties were in a casual sexual relationship. At no time have they lived together. Although initially the mother did not inform the father of his paternity of the child, once she disclosed it, he began to spend time with him. However thereafter issues developed, although the history of the consequences of those issues is not relevant to the appeal. What is relevant is that it transpired that the father has an astonishing history of traffic related offences which caused the mother to be concerned of a risk of harm to the child if he was a passenger in a vehicle driven by the father. Conflict also developed about the child’s surname. The mother commenced those proceedings in 2018. Interim parenting orders were made by consent on 14 November 2018 under which the father spent time with the child on two occasions each week, being 3.5 hours on Tuesday and 9.5 hours on Saturday (Order 2). However such time was to be supervised by the paternal grandparents, who were required to sign an undertaking in relation to that supervision (Order 3) and the father was restrained from driving a motor vehicle in which the child was a passenger, and from consuming alcohol in the period 24 hours prior to the child going into his care, or whilst in his care (Order 5). The paternal grandparents gave the relevant undertaking, and the father spent time with the child. Further interim parenting orders were made by consent on 25 March 2019. Pursuant to them, until 5 May 2019, in the first week of each fortnight, the time the child was to spend with the father increased by an additional hour, but in the second week that time increased more substantially, so that the Saturday time was also enlarged so that it commenced at 3:00pm on the Friday. That time was all unsupervised. After 5 May 2019, that regime continued, save that the father was permitted to drive a car in which the child was a passenger, so long as he held a New South Wales’s drivers licence (Order 12.1) but was prohibited from consuming alcohol 12 hours prior to the child coming into his care, or whilst in his care (Order 9). Again, no supervision of the child’s time with the father was imposed. The post 5 May 2019 arrangements were the orders which prevailed at the time of trial, and indeed the 27 November 2023 orders; they had therefore been operating for about 4.5 years. The trial commenced before the primary judge on 27 May 2021, with judgment being delivered in late 2023. Her Honour properly expressed regret for the difficulties which that delay caused.THE PRIMARY JUDGE’S REASONS Relevant to this appeal, in her reasons the primary judge found that the father presented an unacceptable risk of physical harm to the child (at [548]) by virtue of his extensive breaking of road rules whilst driving (at [545]). That informed Order 19, which imposed a two-year restraint on the father driving a motor vehicle in which the child is a passenger, or from transporting the child on a bicycle, electric bicycle, motorcycle or motor scooter. The father does not seek to disturb that order in this appeal.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Thus paragraph 80 of the Family Report provides as follows:80.This family report is informed by the report and conclusions made by [Ms C] about [the child’s] surname. Indications from this assessment are also that [the child] has a solid relationship with [the father] and this is likely to strengthen over time. The incorporation of the name [Chiles] into [the child’s] surname, either as a single surname or hyphenated, may benefit [the child] as a symbol of his connection to the paternal side of his family, particularly his connection to [his half sibling]. Names are representative of and reflective of one’s identity. As pre-school aged child, [the child] is at a stage of development where his sense of self is beginning to form; the adolescent stage of development being when [the child’s] identity will be much more fully shaped. It is suggested that [the child’s] surname name be hyphenated, maintaining the name [Petrenko] with the addition of [Chiles], reflecting the heritage of both of his parents. This is a common solution parental disagreement about the name. With a simply and consistent explanation from each parent about the change of surname, [the child] will be able to accept the change if it is not a source of parental conflict and if his parents present the change to [X] with confidence. The reality is that [the child] and [his half sibling’s] family backgrounds and the current context of their family lives is different, and therefore [the child’s] name being hyphenated would not necessarily be to [the child’s] detriment but reflective of their different life contexts.[The child] and [his half sibling] would be connected through the name [Chiles]. [The child] having a hyphenated surname will be understood by the half-brothers when they are old enough to understand this.(Emphasis added) In cross-examination Ms D said:[SENIOR COUNSEL FOR THE MOTHER]: Right. And just staying with that last paragraph I was asking you some questions about, you say this:With a simple and consistent explanation from each parent about the change of surname, [the child] will be able to accept the change if it is not a source of parental conflict. [MS D]: Yes.[SENIOR COUNSEL FOR THE MOTHER]: Continuing: And if – and if his parents present the change to [the child] with confidence.[MS D]: Yes.[SENIOR COUNSEL FOR THE MOTHER]: Did you see anything that would lead you to conclude they could do that, and if so, can you tell me what it is that leads you to that conclusion? [MS D]: Well, I would like to know how they presented him going to school, to his school. That could be an example.[SENIOR COUNSEL FOR THE MOTHER]: Right. Well, assuming there’s no evidence of that, do you know of anything else that would fortify your conclusion that they could present it in a simple and consistent way and with confidence? [MS D]: I think this is – could be an example of parents who are able to consider their wellbeing of their child enough, and this is ..... to then be able to go, the decision is made, now we make the most of it. We ensure that our child can progress from here.[SENIOR COUNSEL FOR THE MOTHER]: And so if you had a parent who doesn’t comply with orders though, that might lead you to have a concern that they wouldn’t present it in a – in a consistent way and in a child-focused way if they haven’t been able to comply with orders? [MS D]: Well, I – we were also talking about what I do think is that the parents – I do think they both really care for their – their child and – and [the child] (Transcript 8 October 2021 p.65 line 39 to p.66 line 23)

Ratio Decidendi

Legal Principle Established

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