FAMILY COURT OF AUSTRALIA
| CHOU & PARSONS | [2017] FamCA 65 |
| FAMILY LAW – CHILDREN – Magellan – Best Interests of the children – Where allegations of family violence are not proven – Where the allegations of sexual abuse are not proven – Where allegations of physical abuse and neglect are not proven – Where the conduct of the father in making allegations is of concern – Where there is no unacceptable risk to the children – Where the accuracy of the parents’ evidence is questionable - The children live primarily with the mother – The children spend substantial and significant time with the father – The mother have sole parental responsibility – There be a change of the children’s surname. |
Births Deaths and Marriages Registration Act 1995 (NSW) s 28(5)
Evidence Act 1995 (Cth) s 140(2)(c)
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61DA, 64B(2), 65DA(2), 69ZX |
| Deiter & Deiter [2011] FamCAFC 82 Parson & Chou [2016] FamCA 3 Parson & Chou (No.2) [2016] FamCA 12 Reynolds & Sherman [2016] FamCAFC 240 W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235 |
| APPLICANT: | Ms Chou |
| RESPONDENT: | Mr Parsons |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Vincent |
| FILE NUMBER: | PAC | 4424 | of | 2013 |
| DATE DELIVERED: | 10 February 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 22, 23, 24, 25 February 2016, 4, 5, 12 July 2016, and 17 August 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fermanis |
| SOLICITOR FOR THE APPLICANT: | Rafton Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Breeze |
| SOLICITOR FOR THE RESPONDENT: | Blanchfield Nicholls Partners |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Longworth |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Watts McCray Lawyers |
Orders
That all prior Parenting Orders concerning the children:
(a) B born … 2012 (‘B’); and
(b) C born … 2013 (‘C’).
be discharged.
That the mother have sole parental responsibility for the children subject to Order (16).
That the mother consult with the father in relation to the enrolment of the children in school, prior to finalising any decision in relation to such enrolment, and noting the father’s preference to have the children be educated in the private school system.
That the mother do all things and sign all documents necessary to ensure that the father be entitled to receive any such information as he may request from the preschool and/or school attended by the children or either of them from time…
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- AGLC
- Chou and Parsons [2017] FamCA 65
- Case
- [2017] FamCA 65
- Decision Date
CaseChat Overview and Summary
The court was required to determine a range of issues concerning the children's welfare, including the allocation of parental responsibility, the specific time each parent would spend with the children, and provisions for their education, medical care, and communication between the parents. Further issues included the children's surname, restrictions on removing the children from Australia, and prohibitions against physical discipline and denigration of either parent.
Hannam J ordered that prior parenting orders be discharged and that the mother have sole parental responsibility for the children, subject to specific consultations with the father regarding schooling and notification of significant medical treatment. The court established detailed time arrangements for the children with each parent, including provisions for school holidays, special occasions, and daily care. Orders were also made for the children to adopt the surname 'Chou-Parsons', with restrictions on using any other name. The court imposed significant restraints on both parents, including prohibitions on physical discipline, denigration of the other parent or their family, and the use of recording devices at changeovers. Finally, orders were made regarding the notification of residential addresses and telephone contact numbers, and a contravention notice was annexed to the orders.
Orders
Orders of the court
1.
That all prior Parenting Orders concerning the children:
(a) B born … 2012 (‘B’); and
(b) C born … 2013 (‘C’).
be discharged.
2.
That the mother have sole parental responsibility for the children subject to Order (16).
3.
That the mother consult with the father in relation to the enrolment of the children in school, prior to finalising any decision in relation to such enrolment, and noting the father’s preference to have the children be educated in the private school system.
4.
That the mother do all things and sign all documents necessary to ensure that the father be entitled to receive any such information as he may request from the preschool and/or school attended by the children or either of them from time to time, being such information that is ordinarily sent to parents, including but not limited to newsletters, reports, details of parent teacher interviews, details of any assemblies, school carnivals and other special events.
5.
That the mother inform the father of any significant medical treatment proposed to be administered to either of the children, giving the father as much notice of such proposed treatment as is reasonably practicable.
6.
That each parent have responsibility for the day to day care of the children while the children are in each party’s care.
7.
That each party notify the other in writing, as soon as reasonably practicable, of any serious illness or injury suffered by the children or either of them while in that parent’s care, as well as of any medication or ongoing treatment prescribed.
8.
That the children live with the mother.
9.
That the children spend time with the father as follows:
(a) From the date of the orders until 10 February 2020:
(i) During all school holiday periods for the school attended by B, for two (2) separate four (4) day block periods, the first from the conclusion of school on the last day of term and the second commencing at 9.00am on the second Sunday of the school holiday period;
(ii) At all other times for five consecutive nights from the conclusion of school/pre-school on the first Friday of the school term until the commencement of school Wednesday and in the same pattern each alternate week thereafter;
(b) From 11 February 2020:
(i) During all Term school holiday periods for the school attended by B, for a seven (7) day period, commencing at the conclusion of school on the last day of Term in 2020 and each alternate year thereafter, and commencing at 9.00am on the second Sunday of the school holiday period in 2021 and each alternate year thereafter;
(ii) During Christmas school holiday periods for the school attended by B, for seven (7) day block periods, commencing at 9.00am on the first, third and fifth Sundays of the school holiday period in 2021 and alternate years thereafter, and on the second and fourth Sundays of the school holiday period in 2022 and alternate years thereafter;
(iii) At all other times for five consecutive nights from the conclusion of school/pre-school on the first Friday of the school term until the commencement of school Wednesday and in the same pattern each alternate week thereafter;
(iv) At any other times as may be agreed between the parties.
10.
That for the purpose of these Orders, all school holiday periods for the school attended by B shall be defined as commencing at 3.00pm on the last day of school for that Term for students and concluding at 3.00pm on the day prior to the children returning to school for the next school Term.
11.
That notwithstanding any other Order, the children spend time with each of the parents for special occasions as follows:
(a) For Christmas 2017 and each alternate year thereafter, with the father from 6.00pm on 24 December until 2.00pm on 25 December, and with the mother from 2.00pm on 25 December until 6.00pm on 26 December;
(b) For Christmas 2018 and each alternate year thereafter, with the mother from 6.00pm on 24 December until 2.00pm on 25 December, and with the father from 2.00pm on 25 December until 6.00pm on 26 December;
(c) For Easter each year, with the father from 6.00pm on Easter Saturday to 6.00pm on Easter Sunday;
(d) For Chinese New Year each year, with the mother from 6.00 pm on Chinese New Year’s Eve until 6.00pm on Chinese New Year’s Day;
(e) On Father’s Day each year, with the father from 6.00pm on the day prior to Father’s Day until 9.00am on the day following Father’s Day;
(f) On Mother’s Day each year, with the mother from 6.00pm on the day prior to Mother’s Day until 9.00am on the day following Mother’s Day;
(g) On B’s birthday each year, with the parent in whose care the children would not otherwise be, from the conclusion of school/preschool until 5.30pm in the event such day is a school day for B, or from 12 noon until 5.30pm in the event such day is not a school day for B; and
(h) On C’s birthday each year, with the parent in whose care the children would not otherwise be, from the conclusion of school/preschool until 5.30pm in the event such day is a school day for C, or from 12 noon until 5.30pm in the event such day is not a school day for C.
12.
That for the purposes of these Orders, changeover shall occur at any preschool or school attended by the children from time to time and if changeover is not to occur at the commencement or conclusion of school/preschool, then for the purposes of changeover, the mother or her nominee shall deliver the children to the father or his nominee in front of Coles at Westfield Suburb O Shopping Centre at the commencement of the father’s time with the children, and the father or his nominee shall deliver the children to the mother or her nominee at the same place at the conclusion of his time with the children.
13.
That both parties do all things and sign all documents necessary to change the surname of B and C to ‘Chou-Parsons’ with the Registry of Births Deaths and Marriages and with any other body or institution holding records or enrolments in respect of the children or either of them and that pursuant to section 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW) the Registrar register the children’s names in the form specified above.
14.
That both parties be restrained thereafter from referring in any way to, or calling B by any name other than ‘B Chou-Parsons’ and from using any other name to register or enrol B with any group, body or institution.
15.
That both parties be restrained thereafter from referring in any way to, or calling C by any name other than ‘C Chou-Parsons’ and from using any other name to register or enrol C with any group, body or institution.
16.
That the mother is restrained from changing the children’s names to any name other than those provided for in this order.
17.
Pending further order, each party and their agents are restrained from removing or attempting to remove or causing or permitting the removal of the children B Chou-Parsons (previously known B Parsons) born … 2012 and C Chou-Parsons (previously known as C Chou) born … 2013, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the children reach the age of 18 years or the Court orders its removal.
18.
That if either party wishes to take the children or either of them outside of the Commonwealth of Australia, they shall first seek the consent of the other and if that is not forthcoming, that party may make an application for Orders permitting the proposed travel outside of Australia.
19.
That both parties be restrained from:
(a) Physically disciplining the children;
(b) Allowing or permitting any other person to physically discipline the children;
(c) Denigrating or allowing any other person to denigrate the other parent or member of the other parent’s family in the presence or hearing of the children;
(d) Making any critical or derogatory comments about the other or any member of the other parent’s family on any form of social media; and
(e) Using recording devices including but not limited to sports glasses, cameras and phones or other devices, at changeover, to take photographs or recordings of the other parent or the children and shall use his and her best endeavours to ensure that no third party who attends changeover uses such recording devices or takes photographs.
20.
That each parent inform the other, and keep the other informed, of his or her current residential address, and notify the other party of any change to such address not less than forty eight (48) hours prior to such change occurring.
21.
That each party inform and keep the other informed of his or her current telephone contact number and notify the other not less than twenty four (24) hours after any such change occurring.
22.
Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are included in these Orders, annexed hereto.
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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