FEDERAL CIRCUIT COURT OF AUSTRALIA
| FADDEN & JANCO | [2020] FCCA 1101 |
| Catchwords: FAMILY LAW – Parenting – allocation of sole parental responsibility to the Father – children live with the Father – meaningful relationship with the parents – whether the Father ought to be permitted to obtain Australian passports for the Children without the consent of the Mother – whether the Children should be permitted to travel internationally – ongoing litigation. |
| Legislation: Australian Passports Act 2005(Cth), ss.7, 11 Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 61DA, 62B, 62G, 65D, 65DA(2), 69ZT Federal Circuit Court Rules 2001 (Cth), r.21.15 |
| Cases cited: AMS v AIF (1999) 199 CLR 160 |
| Applicant: | MR FADDEN |
| Respondent | MS JANCO |
| File Number: | MLC 10826 of 2010 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 24 February 2020 |
| Date of Last Submission: | 25 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 13 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Bonney |
| Solicitors for the Applicant: | Pearce Webster Dugdales |
| The Respondent: | Appearing in person |
| Counsel for the Independent Children’s Lawyer: | Mr Kiernan |
| Solicitors for the Independent Children’s Lawyer: | Clark Family Law |
ORDERS
Previous Parenting Orders
All previous parenting orders in relation to X (X), born in 2005 and Y (Y), born in 2008 (together the Children) be discharged.
Parental Responsibility
The Applicant Father, Mr Fadden (Father), have sole parental responsibility for X and Y, provided always that the Father keep the Respondent Mother, Ms Janco (Mother), informed of significant long term decisions that he makes in relation to the Children and actively seeks the Mother’s input on such issues.
For the purpose of Order 2:
(a)Before any such long term decisions are made in respect of X and alternatively Y:
(i)The Father shall advise the Mother by email of his proposal relating to X and alternatively Y;
(ii)If the Mother wishes to comment on the Father’s proposal (or if the Mother has any proposal she wishes to make relating to X and alternatively Y on this issue) she shall, within seven (7) days after the date of the Father’s email, advise the Father by one email (to the email address from which the Father sent his communication) of her views;
(iii)Upon receipt of any comment or proposal by the Mother, the Father shall give consideration to the Mother’s views;
(iv)After the Father has considered the Mother’s comments, he shall make a…
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- AGLC
- FADDEN & JANCO [2020] FCCA 1101
- Case
- [2020] FCCA 1101
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the father ought to be granted sole parental responsibility for the children, and whether he should be permitted to obtain Australian passports for them without the mother's consent, allowing for international travel. Additionally, the court considered the living arrangements and the time the children would spend with the mother, as well as various restraints on the parents' conduct and communication regarding the children and the proceedings.
The court found that the father should have sole parental responsibility, with provisions for him to keep the mother informed of and seek her input on significant long-term decisions. The children were ordered to live with the father and spend time with and communicate with the mother as agreed. The court imposed specific restraints on the mother regarding alcohol and drug use when the children are in her care, and concerning the presence of a Ms A. Both parents were restrained from denigrating the other parent or discussing the proceedings in the children's presence. The court also made orders regarding the children's medical care, education, and extracurricular activities, and crucially, permitted the father to apply for Australian passports for the children and for them to travel internationally without the mother's consent, finding it impracticable to obtain her consent. The court's reasoning was influenced by the mother's inconsistent evidence regarding a relationship with Mr T, which affected her credit, and her failure to comply with previous orders for parenting programs. The court accepted the father's evidence, corroborated by a child inclusive memorandum and a family report, which indicated the father had stepped up to provide primary care when the mother's care had broken down.
Consequently, the court ordered that the father have sole parental responsibility, with specific communication protocols for long-term decisions. The children were to live with the father and spend time with the mother as agreed. The mother was subject to specific restraints concerning alcohol, drugs, and the presence of Ms A. The father was permitted to apply for Australian passports for the children and for them to travel internationally without the mother's consent. All extant applications were dismissed, and the appointment of an Independent Children's Lawyer was discharged.
Orders
Orders of the court
Previous Parenting Orders
1.
All previous parenting orders in relation to X (X), born in 2005 and Y (Y), born in 2008 (together the Children) be discharged.
Parental Responsibility
2.
The Applicant Father, Mr Fadden (Father), have sole parental responsibility for X and Y, provided always that the Father keep the Respondent Mother, Ms Janco (Mother), informed of significant long term decisions that he makes in relation to the Children and actively seeks the Mother’s input on such issues.
3.
For the purpose of Order 2:
(a) Before any such long term decisions are made in respect of X and alternatively Y:
(i) The Father shall advise the Mother by email of his proposal relating to X and alternatively Y;
(ii) If the Mother wishes to comment on the Father’s proposal (or if the Mother has any proposal she wishes to make relating to X and alternatively Y on this issue) she shall, within seven (7) days after the date of the Father’s email, advise the Father by one email (to the email address from which the Father sent his communication) of her views;
(iii) Upon receipt of any comment or proposal by the Mother, the Father shall give consideration to the Mother’s views;
(iv) After the Father has considered the Mother’s comments, he shall make a decision and advise the Mother by email or SMS text message of the outcome immediately after making that decision; and
(v) If the Mother does not respond by email as provided in Order 3(a)(ii), the Father shall be entitled to presume that the Mother does not wish to be involved as provided in Order 3(a)(ii), and he may decide the issue.
Living Arrangements and the Time the Children Spend with the Mother
4.
X and Y live with the Father.
5.
X and Y spend time with and communicate with the Mother, at such times (including during extracurricular activities) and on such terms, as may be agreed in writing (including text message), between the Father and the Mother, in accordance with the wishes the Children, or either of them individually.
Restraints on Parents
6.
The Mother is hereby retrained from imbibing, ingesting or being under the influence of alcohol or illegal drugs for 24 hours prior to and at all times when the Children, or either of them, are in her care. For the avoidance of doubt, the Mother is required to have a blood alcohol level of 0.00 at all times that the Children, or either of them, are in her care.
7.
The Mother shall do all things necessary to ensure that Ms A is not present during any time spent by the Children, or either of them, with the Mother.
8.
The Mother and the Father and their servants and agents are hereby restrained from:
(a) Abusing, belittling, insulting or otherwise denigrating the other parent, their relatives or friends within the presence or hearing of the Children.
(b) Commenting, discussing, or referring to any part of the family law proceedings, including communications, negotiations, or showing any documents from these proceedings, or allowing any other person to do so within the presence or hearing of the Children.
(c) Encouraging the Children not comply with these orders.
Medical
9.
The Father ensure that X, and Y if required, receive counselling as required from agencies such as the B Hospital, Headspace and Youth Beyond Blue. The Father shall be at liberty to provide a copy of the Family Report, dated 21 January 2020 to any such counsellors.
10.
Each party shall notify the other as soon as practicable in the event that either of the Children suffers any serious illness or injury whilst in their respective care and each shall authorise any medical or dental practitioner who treats either of the Children to communicate and consult with the other parent.
11.
Each party shall advise the other of any medication prescribed for either of the Children while in their respective care, including the dosage and frequency prescribed, and each shall ensure that such medication travels between their houses with the Children, and that any such medication is taken in accordance with its prescription.
Education and Extra-Curricular Activities
12.
The Father shall authorise any school or extra-curricular activity in which the Children are enrolled to provide to the Mother, at the expense of the Mother, all information, notices, photographs, reports, invitations and like materials, and the Mother shall be named as a contact person in the records of such school or organisation in the event of any emergency involving X and/or Y.
13.
The Mother be at liberty to attend the Children’s school and extra-curricular events including, but not limited to, parent teacher interviews and other events organised by the school, sporting clubs and like activities.
Passports
14.
Pursuant to ss.7 and 11 of the Australian Passports Act 2005(Cth) and the Court being satisfied that it is not practicable to obtain the consent of the Mother to enable the Children to travel internationally, the Court makes the following orders:
IT IS ORDERED BY THE COURT THAT:
15.
The Father of the Children X, born in 2005 and Y, born in 2008 be permitted to apply for an Australian passport to enable the Children, or either of them, to travel internationally, notwithstanding that the Mother of the Children has not signed the passport application form and furthermore the Children, or either of them, be permitted to travel internationally without the permission of the Mother.
16.
The Father is to pay all expenses associated with the Children obtaining and renewing Australian passports, until they each attain the age of 18.
17.
The Father have the sole right to retain in his possession the current Australian passports for the Children.
Miscellaneous
18.
All extant applications are otherwise dismissed.
19.
The Order of Judge C. E. Kirton QC, dated 16 October 2018 appointing the Independent Children’s Lawyer be discharged.
20.
Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
AND THE COURT NOTES THAT:
A. Pursuant to ss.65DA(2) and 62B 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 person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In the Mother’s Second July 2018 Affidavit, the Mother deposed: In the months since my separation from my husband, I have only had one boyfriend which is current and his name is Mr T. I haven’t had various male or female friends frequent my home as stated in [the Father’s] affidavit[107].(Emphasis added)[107] Mother’s Second July 2018 Affidavit, at [32(d)]. When the Mother was cross-examined by Counsel for the Father, the Mother denied that she had been in a relationship with Mr T[108]. The Mother provided the following reason that she could not have been in a relationship with Mr T: Because he’s actually married, so it’s impossible for me to be in a relationship with him[109].[108] Transcript T83:6.[109] Transcript T83:14-15. The Mother also denied filing an affidavit in this proceeding stating that Mr T had been her boyfriend. After being shown paragraph 32(d) of the Mother’s Second July 2018 Affidavit, the Mother said:Yes. Well obviously, I’ve mistyped that because I haven’t had any and I’m actually still legally married to my husband[110]. [110] Transcript T84:42-43. The Mother claimed that she had not read paragraph 32(d) of the Mother’s Second June 2018 Affidavit properly and it was a mistake[111]. I do not accept the Mother’s evidence concerning her relationship with Mr T, when cross-examined by Counsel for the Father. Firstly, it is not believable that the Mother would “mistype” the whole of the sentence: In the months since my separation from my husband, I have only had one boyfriend which is current and his name is Mr T. Secondly, the sentence makes sense in the context of the following sentence in paragraph 32(d): I haven’t had various male or female friends frequent my home as stated in [the Father’s] affidavit. Thirdly, on the same day that the Mother filed the Mother’s Second July 2018 Affidavit, the Mother also filed the Ms A Affidavit. In the Ms A Affidavit, Ms A deposed that:I need to clarify that she has only had ONE boyfriend – Mr T since her split with her husband […][112] [111] Transcript T85:1-9.[112] Ms A Affidavit, at p.4. The relevance of the Mother’s evidence in relation to Mr T at the Final Hearing when cross-examined, goes directly to the Mother’s credit. The Mother has not provided any evidence to the Court that she complied with the Orders made on 12 July 2018 to complete the following programs:a)N Family Services parenting program or in the alternative, the SeaChange program for women offered by Lifeworks; andb)The ‘Tuning into Teens’ parenting program, offered by N Family Services. I accept the evidence in the Father’s June 2018 Affidavit at paragraphs 32 to 52. This evidence has been corroborated by the Child Inclusive Memorandum. It has also been corroborated by the Mother’s July 2018 Affidavit, the Ms A Affidavit, the Mother’s February 2020 Affidavit and from the Mother’s evidence under cross-examination[113].[113] Transcript T114:6-115:17. Mr K concluded in relation to the Father:It must be said the writer gained a very good impression of [the Father] in the interview. It seemed that the two boys were very fortunate to have a father who was willing to step-up in mid-2018 and assume their primary care when their care by their mother had apparently all but broken down[192]. [192] Family Report, at [56].