Ezekov and Chandra and Anor - [2015] FamCA 133

FAMILY COURT OF AUSTRALIA

EZEKOV & CHANDRA AND ANOR

[2015] FamCA 133

FAMILY LAW – PARENTING – Relocation – First respondent father –Where significant family violence perpetrated by the first respondent –Where applicant mother seeks to relocate to Country I – Consideration as to the best interests of the subject child – Where mother’s relocation not permitted – Where consideration as to appropriate orders otherwise – Where recommendation from the family report writer for ongoing long term identity supervision only for child aged three – Consideration as to issues of long term supervision – Where long terms supervision not in the best interests of the subject child – Where orders made for the child’s time with the father to be carefully and gradually increased over an extended period of time – Where presumption as to equal shared parental responsibility not to apply in the circumstances of the first respondent.

FAMILY LAW – PARENTING – Relocation – Second respondent father –Where second respondent father fails to participate in the proceedings – Consideration as to the best interests of the subject children – Consideration as to weight to be attached to the older children’s views – Where mother’s relocation not permitted – Where views of the second respondent known through his children and the mother’s evidence – Where presumption as to equal shared parental responsibility to apply in the circumstances of the second respondent – Where orders for equal or substantial and significant time not in the best interests of the children.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Sawant & Karanth [2014] FamCAFC 235
AMS and AIF (1999) 199 CLR 160
Sayer & Radcliffe and Anor (2013) 48 Fam LR 298
Muldoon & Carlyle (2012) FLC 93-513
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755
Morgan & Miles (2008) 38 Fam LR 275, (2007) FLC 93-343
Taylor & Barker (2007) 37 Fam LR 461
Malcolm & Monroe and Anor (2011) FLC 93-460
Johnson and Page [2007] FamCA 1235
Moose [2008] FamCAFC 108
Champness and Hanson [2009] FamCAFC 96
Slater v Light [2011] FamCAFC 1
Malburon & Waldlow [2013] FamCAFC 191
Mazorski v Albright[2007] FamCA 520
McCall & Clark (2009) FLC 93-405, (2009) 41 Fam LR 483
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342

APPLICANT:

Ms Ezekov

1st RESPONDENT:

Mr Chandra

2nd RESPONDENT:

Mr B

INDEPENDENT CHILDREN’S LAWYER:

Gonzalez & Co

FILE NUMBER:

PAC

2596

2013

DATE DELIVERED:

5 March 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

19, 20, 21 and 22 January 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Heazelwood

SOLICITOR FOR THE APPLICANT:

Norwest Family Law

COUNSEL FOR THE 1ST RESPONDENT:

Mr Lethbridge SC

Ms Gibbons

SOLICITOR FOR THE 1ST RESPONDENT:

Kheir Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hill

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Gonzalez &…

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.

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Details

Case: [2015] FamCA 133
Decision Date: 5 March 2015

CaseChat Overview and Summary

This matter concerned applications by Ms Ezekov (the mother) and Mr Chandra (the father) regarding their child, C Ezekov-Chandra, and separate applications by Ms Ezekov and Mr B (the second respondent father) concerning their children, G and H. The proceedings were before Foster J.

The court was required to determine issues of parental responsibility, living arrangements for the children, and time spent with each parent. Additionally, the court needed to consider orders restraining the removal of the children from the Commonwealth of Australia and the placement of their names on the Family Law Watchlist.

In relation to C Ezekov-Chandra, the court ordered that the mother have sole parental responsibility and that the child live with her. The father was granted specific, phased-in time with the child, commencing with supervised changeovers and gradually increasing in duration and independence, including provisions for holidays and special occasions. For the children G and H, the court ordered equal shared parental responsibility and that they live with the mother, with time spent with the father to be as agreed between the parents.

For all children, the court made orders restraining the removal of the children from the Commonwealth of Australia for a period of two years and requested the Australian Federal Police place the children's names on the Family Law Watchlist for that duration. Further orders addressed communication between parents and children, notification of medical issues, access to medical information, and the ability for parents to liaise with schools and attend significant events.

Orders

Orders of the court

That the mother Ms Ezekov have sole parental responsibility for the child C Ezekov-Chandra born … 2012.

That the child live with the mother.

That the child spend time with the father Mr Chandra as agreed in writing including SMS or email by the mother and father and in default of agreement as follows:

(a) For a period of three months from the date of these orders each Saturday from 10:00am until 2:00pm with changeovers to be facilitated at the D Region Contact Service … with the father to pay all fees payable in relation to such changeovers;

(b) For a period of three months thereafter each Saturday from 10:00am until 4:30pm with changeovers to be facilitated at the D Region Contact Service … with the father to pay all fees payable in relation to such changeovers;

(c) For a period of six months thereafter each Saturday from 10:00am to 5:00pm with changeovers to be at the McDonalds Family Restaurant F Shopping Centre, Suburb E;

(d) For a period of six months thereafter from 10:00am to 5:00pm Saturday and 10:00am to 3:00pm Sunday each alternate weekend with changeovers to be at the McDonalds Family Restaurant, F Shopping Centre, Suburb E;

(e) For a period of six months thereafter from 10:00am Saturday to 11:00am Sunday each alternate weekend with changeovers to be at the McDonalds Family Restaurant, F Shopping Centre, Suburb E;

(f) For a period of six months thereafter from 10:00am Saturday to 3:00pm Sunday each alternate weekend with changeovers to be at the McDonalds Family Restaurant, F Shopping Centre, Suburb E;

(g) For the period thereafter until the child commences school from 9:00am Saturday to 5:00pm Sunday each alternate weekend with changeovers to be at the McDonalds Family Restaurant, F Shopping Centre, Suburb E;

(h) On Father’s Day in each year from 10:00am to 5:00pm provided that the child’s time with the father shall be suspended on Mother’s Day from 10:00am to 5:00pm changeovers to be at the McDonalds Family Restaurant, F Shopping Centre, Suburb E.

(i) Upon the child commencing school and during school term:

(i) For the first two terms of child’s first year of school each alternate weekend commencing on the first weekend after the commencement of term from after school Friday to 11:00am Sunday and for the remainder of that year after school Friday to 5:00pm Sunday with changeovers if not at school to be at the McDonalds Family Restaurant, F Shopping Centre, Suburb E;

(ii) Thereafter each alternate weekend commencing on the first weekend after the commencement of term from after school Friday to before school Monday;

(j) Upon the child commencing school and during school holidays:

(i) In the child’s first year of school in the middle weekend of the Term 1, 2 and 3 holidays from 6:00pm Thursday until 5:00pm Sunday and in the Term 4 Christmas holidays commencing on the first Thursday after Christmas Day and each alternate Thursday thereafter from 6:00pm Thursday to 5:00pm Sunday with changeovers to be at the McDonalds Family Restaurant, F Shopping Centre, Suburb E;

(ii) Thereafter for the child’s second year of school in Term 1, 2 and 3 holidays from 10:00am on the first Saturday of such holiday period to 6:00pm Thursday and in the Term 4 Christmas holidays commencing on the first Saturday after Christmas Day and each alternate Saturday thereafter from 10:00am Saturday to 6:00pm Thursday with changeovers to be at the McDonalds Family Restaurant, F Shopping Centre, Suburb E;

(iii) Thereafter in Term 1, 2 and 3 holidays from 10:00am on the first Saturday of such holiday period to 10:00am the next Saturday and in the Term 4 Christmas holidays commencing on the first Saturday after Christmas Day and each alternate Saturday thereafter from 10:00am Saturday to 10:00am the next Saturday with changeovers to be at the McDonalds Family Restaurant, F Shopping Centre, Suburb E.

That the mother and father be at liberty to communicate with the child by telephone or Skype (or similar) at all reasonable times provided always that such times shall be no more than once each alternate day that the child is not in their respective care and the parent with whom the child is shall assist the child to receive the phone call or Internet communication and the other parent shall initiate such communication.

That for the purposes of changeovers such changeovers shall be as provided above or as agreed between the parties in writing such writing including SMS or email.

That the mother and father keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other of any change thereto within 7 days of any change.

That the mother and father shall promptly notify the other when the child is ill or visits a medical practitioner or immediately notify the other when the child has a medical emergency, accident or hospital admission.

That the mother and father make available to the other any medications prescribed for the child for the other to administer when the child is with the other and the mother and father shall authorise the child’s medical practitioner to fully discuss the child’s treatment with the other parent and for this purpose this order shall be sufficient authority for the practitioner to do so.

That the mother and father be permitted to liaise directly with the child’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and other necessary information about the child’s progress.

10.

That the mother and father are at liberty to attend on such occasions and at such events significant to the child’s welfare, schooling, extracurricular activities, sport, health, religious instruction or events where the attendance of either or both parents is reasonably expected.

11.

That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 each party Ms Ezekov born … 1976 and Mr Chandra born … 1975, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child C Ezekov-Chandra born … 2012 from the Commonwealth of Australia for a period of two years.

12.

AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Watchlist for the said period, until the Court orders its removal, or with consent of all parties.

G and H:

13.

That the mother and second respondent father Mr B have equal shared parental responsibility for the children G born … 1999 and H born … 2002.

14.

That the children G and H live with the mother.

15.

That the children G and H spend time with the father as agreed between the mother and the father.

16.

That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 each party Ms Ezekov born … 1976 and Mr B born … 1967, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children G born … 1999 and H born … 2002 from the Commonwealth of Australia for a period of two years.

17.

AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period, until the Court orders its removal, or with consent of all parties.

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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