DALPRA & KAFTON

[2020] FCCA 1985

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALPRA & KAFTON [2020] FCCA 1985

Catchwords:
FAMILY LAW – Parenting – best interests of the child – a child’s right to a meaningful relationship with both parents – where the child lives with her mother and spends time with her father – where the child is to relocate with the mother as agreed – what time is the child to spend with the father and at whose cost – where the family report states the child has a good relationship with the father – the child is to spend some school holiday time with the father – the parties are to equally share the costs of the child spending time with the father.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR DALPRA

Respondent: MS KAFTON

File Number: DNC 619 of 2019

Judgment of: Judge Young

Hearing date: 16 June 2020

Date of Last Submission: 16 June 2020

Delivered at: Darwin

Delivered on: 16 June 2020

REPRESENTATION

Counsel for the Applicant: Ms Franz

Solicitors for the Applicant: Darwin Family Law

Counsel for the Respondent: Ms Farmer

Solicitors for the Respondent: Withnalls Lawyers

ORDERS

IT IS ORDERED BY CONSENT ON A FINAL BASIS:

1. That the final orders of the Family Court of Western Australia dated 12 September 2017 be discharged.

Parental Responsibility

1. That the parties have equal shared parental responsibility for X born in 2011 (“the child”).

2. The child shall at all times be referred to and known by the name X.

Where the child shall live

1. That the child shall live with the Mother.

2. That forthwith the child be permitted to relocate with the Mother to Town B, Western Australia.

In the event the father resides in Town C/Town B

1. That in the event the father resides in Town C/Town B in Western Australia, and unless otherwise agreed between the parties in writing, the child shall spend time with the Father during school terms from 5.00pm Friday to 5.00pm the following Friday and each 4 weeks thereafter.

2. That in the event the father resides in Town C/Town B in Western Australia, and unless otherwise agreed between the parties in writing the child shall spend time with the parties equally during the school holidays and in default of any agreement, as follows:

   (a)The first half of all school holidays with the Father in even numbered years and the second half of all school holidays in odd numbered years; and

   (b)The second half of all school holidays with the Mother in even numbered years and the first half of all school holidays in odd numbered years.

3. That in the event the father resides in Town C/Town B except as otherwise provided in these orders, and unless one party has taken the child interstate or overseas, on occasions of special significance Order 6 and 7 above shall be suspended and the child shall spend time with the parties as follows:

   (a)With the Mother from 9:00am to 5:00pm Mother’s Day in each year;

   (b)With the Father from 9:00am to 5:00pm Father’s Day in each year;

   (c)With the Mother on the Mother’s birthday in each year;

   (d)With the Father on the Father’s birthday in each year;

   (e)For no less than four hours with each party on the child’s birthday each year;

   (f)In odd numbered years, the Mother may spend time with the child from 2:00pm Christmas Eve to 2:00pm Christmas Day, and in even numbered years the Mother may spend time with the children from 2:00pm Christmas Day to 2:00pm Boxing Day;

   (g)In even numbered years, the Father may spend time with the children from 2:00pm Christmas Eve to 2:00pm Christmas Day, and in odd years the Father may spend time with the children from 2:00pm Christmas Day to 2:00pm Boxing Day.

In the event the father does not reside in Town C/Town B

1. That in the event the father does not live in the Town C/Town B area in Western Australia, and unless otherwise agreed between the parties in writing, the child shall spend time with the Father as follows:

   (a)In odd numbered years in two of the three term school holidays being term 1, term 2 or term 3 Western Australian Gazetted school holidays provided the father elects which of the two school holidays not less than 12 weeks prior to each school holiday period and provided the Father provides to the Mother an itinerary for the child’s airfare travel not less than 28 days prior to intended travel; and

   (b)For one half of the term 4 Western Australian Gazetted school holidays, being the first half in even numbered years, and the second half in odd numbered years.

2. The child shall return to the Mother at the conclusion of any school holidays with the Father not less than two days prior to the commencement of the following school term.

Communication

1. That the parents communicate with the child at all reasonable times with the parent with whom the child is living to instigate the telephone, FaceTime or Skype call to the to the non-resident parent and in default of agreement between 5.00pm to 6.00pm each Monday, Wednesday and Sunday.

2. That the mother shall provide to the father regular updates about X when any schooling or medical issues may arise.

3. That the parties will:

   (a)Communicate by text or email except in the event of an emergency when communication will be by telephone;

   (b)Keep each other informed of their current contact details including their residential and postal addresses, telephone numbers, email address and Skype details and will inform the other of any change to any of these details within seven days of any change; and

   (c)Advise each other of any medical or other emergency involving either of the child whilst in their respective care.

Travel and passports

1. That the child be permitted to travel interstate and/or overseas with either of the parties during an period of time that the child is permitted to spend with the party in accordance with these orders provided that the party with whom the child is to travel provides to the other party not less than 14 days written notice and provides itineraries, contact addresses and telephone numbers for the child whilst the child is interstate or overseas so that the child can communicate with the other party at all reasonable times.

2. That the parties do all acts and sign all documents necessary to maintain a valid passport for the child, and shall equally share in the cost of any renewal application.

3. That not less than 7 days prior to any notified overseas travel, the Mother provide to the Father the child’s passports and the Father shall return the child’s passports to the Mother immediately upon the conclusion of the overseas travel, with the Mother to retain possession of the passport.

Authorisation

1. That a copy of these Orders authorises the child’s schools and medical practitioners to provide to each of the parents:

   (a)Copy of school reports, school newsletters, school photo application forms, parent/teacher interview notices and so forth regarding the educational needs of the child; and

   (b)Copy of medical reports including any referrals, information regarding any medical condition suffered by the child, including treatment and any other information or material concerning the health and wellbeing of the child.

2. That the parties have liberty to attend all and any schooling events and extra-curricular activities attended by the child which parents are ordinarily invited to attend.

Injunctions

1. That each parent be restrained by injunction and an injunction issue restraining the parties from:

   (a)Denigrating the other parent or the parent’s partner or members of that parent’s family in the presence of or within the hearing of the child and each parent remove the child from the hearing of anyone else who may be denigrating the other parent or that parent’s partner or family;

   (b)Posting to any social media any comments/posts regarding the other party in a negative manner or these proceedings; and

   (c)Permitting or allowing any third person to do so.

NOTATIONS

A.In the event the Father returns to reside in Town C/Town B and the Father’s roster is not two weeks on and two weeks off the parties agree to return to FDR to reach agreement as to the child’s routine time spent with the Father.

B.The Mother intends to return to Darwin upon the COVID-19 border restrictions easing and if possible shall travel with the child to Darwin during the term 3 Western Australia school holidays and it is intended, if possible, the child spend time with Father in Darwin between 1 October 2020 and 9 October 2020.

AND IT IS ORDERED ON A FINAL BASIS:

In the event the father does not reside in Town C/Town B

1. That in the event the father does not live in the Town C/Town B area in Western Australia, and unless otherwise agreed between the parties in writing, the child shall spend time with the Father as follows:

   (a)In even numbered years in two of the three term school holidays being term 1, term 2 or term 3 Western Australian Gazetted school holidays provided the father elects which of the two school holidays not less than 30 days prior to each school holiday period and provided the Father provides to the Mother an itinerary for the child’s airfare travel not less than 28 days prior to intended travel;

   (b)Upon the father visiting Town C/Town B and providing not less than 14 days’ written notice of his intention to spend time with the child, and details of his accommodation including address and contact details, a further 10 days on no more than three occasions in any calendar year provided the child attends school and all extra-curricular activities.

2. That unless otherwise agreed in writing by the parties, the parents shall equally contribute to the travel costs for the child to spend time with the father in Australia as follows:

   (a)The Father shall book and pay for the child’s travel from Town B to the destination of the child’s intended holiday in Australia; and

   (b)The Mother shall book and pay for the child’s return travel within Australia to Town B.

3. Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations of these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

NOTATIONS:

C.For Order 10 hereof, the Mother agrees while the child is in primary school and middle school that consideration will be given to the child leaving school 2 days early in order to travel to spend time with the Father for the term 1, term 2 and term 3 school holidays.

IT IS NOTED that publication of this judgment under the pseudonym Dalpra & Kafton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 619 of 2019

MR DALPRA

Applicant

And

MS KAFTON

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting case about X, who is eight years old.  X lives with her mother and her stepfather, Mr D.  She spends time with her father, Mr Dalpra. For the past three years the parties have lived in Darwin.  Mr D was employed on the E project here in Darwin but he has recently accepted a position in Town B in Western Australia.  Mr Dalpra works at Town F and he rents a home in Darwin.  He is originally from Perth and works at Town F, as I understand it, on a casual basis where he is employed on a two weeks on, two weeks off roster.

3. Ms Kafton and Mr D have two children of their own, G who is three, and H who is one.  The parties have agreed that X is to relocate with her mother and Mr D to live in Town B, where they lived until about three years ago.  However, the parties have not been able to agree on time spending arrangements and the costs of travel. 

4. There are, as far as I can identify, four areas of dispute and I will describe them generally.  The father proposes that X spends two term holidays with him, in addition to half of the long holiday or the Christmas holiday each year.  Each of the term holidays is two weeks long.  So under that arrangement under the father’s proposal X would spend seven weeks out of a total of 12 weeks of school holidays, with him. 

5. The family consultant who prepared a family report was of the view that X had a good relationship with her father, and that relationship ought to be encouraged. Indeed, under the Family Law Act, the right to a meaningful relationship with both parents, apart from protecting a child from harm, is the most fundamental factor in deciding what are the best interests of the child are.

6. The family consultant was of the view that the child should spend as much time with Mr Dalpra as practicable.  The mother’s position is that X should spend at least some holiday time with her, Mr D and X’s siblings.  Under her proposal the arrangement would be that in one year, X will spend two of the term holidays with her father, and in the next year, one of the three term holidays.  That would result in an average over the year of nearer to six weeks out of 12.  So looked at one way, the contest about this issue is whether X spends five weeks out of 12, or six weeks out of 12, with her mother, stepfather and siblings.

7. It was said that the necessity for the mother’s proposal was that the child should have some holiday time with her siblings in particular, as well as her family.  I accept that is important but I consider that the difference in the two proposals, as I have tried to illustrate, is very slight and not so different as likely to have any bearing one way or another on the best interests of the child.  I am satisfied that the recommendations in the family report are well-founded and I am satisfied that the arrangements that should occur are that, in addition to the Christmas long holiday which is to alternate, X should spend two of the term holidays of the three with her father.  The father will have to nominate well in advance which holiday he is proposing that X will spend with him and I have in mind that the minimum period for nomination is a month. 

8. The next area of dispute concerns the father visiting Town B where X will spend time with him.  He is proposing that he should be permitted to travel to Town B on up to three occasions each year, for 10 days each, and that X will then spend time with him.  The mother’s proposal is that there ought to be two periods of 10 days each.

9. I have my doubts about whether the father is likely to take up all of that time and even if there was an order that X spend time with him for 10 days, up to three occasions a year, I think given his working arrangements that is possible, but I am not entirely sure that it will happen all the same.  Nevertheless, I consider that it is practicable and I consider that there ought to be an order that if the father wishes to do that, he can travel to Town B for up to three occasions a year for 10 days each time.  Again there will need to be a minimum notice period of as I say, in my view, 30 days before that happens.

10. The third area of dispute concerned the costs of travel.  The father seeks that the parties share the costs of travel only from Perth to Darwin, or Perth to somewhere else in Australia, if that is where X is to spend time with the father, but that the mother be responsible for the Town B to Perth leg of the travel.  The father argues that Mr D receives a $20,000 a year travel allowance as part of his employment and that could be applied to orders for travel.  However, it appears to me that the travel allowance in reality is simply a flat allowance and taxable.  In other words, simply a component of salary rather than a fund that can be accessed for particular travel.

11. I am not satisfied that there should be any departure from the usual practice that the cost of travel is shared equally between the parties.  I note that in the case of high costs associated in spending time, and it is my understanding that it is at least 5 per cent of taxable income, if there are high costs of that nature, a paying party is entitled to apply the Child Support Registrar for a reduction in child support.  Whether Mr Dalpra would reach or whether the costs of X spending time with Mr Dalpra reach that threshold, I do not know.  That is a matter for him.

12. In my view there ought to be no departure from the usual practice.  In other words, the parties are to equally share the costs of X spending time with the father.  The usual arrangement is that the non-residential parent books and pays for the leg of the travel to them, and the residential parent pays for and books the leg of the travel to return.  Unless there is some other agreement that the parties reach that is the order I propose to make. 

13. The final area of dispute is the father’s submission that the mother ought to be responsible for paying the costs of travel and accommodation during those periods when he travels to Town B, so that X can spend time with him.  Ms Farmer, for the mother, submitted that there is no power for the Court to make such an order.  Regardless of whether or not there is a power it is not an order that I will consider fair or just in the circumstances and I do not propose to make it. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 21 July 2020