Fassett & Batra
[2024] FedCFamC2F 1322
•23 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fassett & Batra [2024] FedCFamC2F 1322
File number(s): PAC 3313 of 2021 Judgment of: JUDGE STREET Date of judgment: 23 September 2024 Catchwords: FAMILY LAW – PARENTING - Substantial consent orders made – child aged 11 – benefit of overseas travel for the child – family therapy to continue until the child turns 15 - no orders as to the ICL’s costs Legislation: Family Law Act 1975 (Cth) Cases cited: Kapoor & Kapoor [2024] FedCFamC2F 605 Division: Division 2 Family Law Number of paragraphs: 9 Date of hearing: 23 September 2024 Place: Sydney Counsel for the Applicant: Ms L Hamilton Solicitor for the Applicant: Tan Le Nguyen Counsel for the Respondent: Mr T Robertson Solicitor for the Respondent: Delfino & Delfino Solicitors and Conveyancers Counsel for the Independent Children’s Lawyer: Ms S Hayward Solicitor for the Independent Children’s Lawyer: Mahony Family Lawyers ORDERS
PAC 3313 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FASSETT
Applicant
AND: MR BATRA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
23 SEPTEMBER 2024
BY CONSENT AND ON A FINAL BASIS, THE COURT ORDERS THAT:
Procedural
1.The parents shall have joint decision-making responsibility for major long term issues affecting X born in 2013.
2.All other previous Orders made in these legal proceedings be discharged forthwith.
Residence of the child
3.The child, X (‘the child’) born in 2013, live with the Mother.
The Child’s time with the father during the New South Wales Gazetted School Term
4.The child spend time with the Father during the New South Wales gazetted School Term until the conclusion of Term 1 of 2025 in accordance with a two (2) week repetitious loop cycle as follows:
(a)In week 1 from after school Friday (or 3pm if not a school day) until before school Monday (or 9:00am if not a school day); and
(b)In week 2 from after school Thursday (or 3pm if not a school day) until before school Friday (or 9:00am if not a school day).
(c)as otherwise agreed between the parties.
5.From the commencement of Term 2 2025 the child spend time with the Father in accordance with a two (2) week repetitious loop cycle as follows:
(a)In week 1 from after school Friday (or 3pm if not a school day) until before school Tuesday (or 9:00am if not a school day); and
(b)In week 2 from after school after Thursday (or 3pm if not a school day) until before school Friday (or 9:00am if not a school day).
(c)as otherwise agreed between the parties.
The Child’s time with he parties during the New South Wales Gazetted School Term Holidays
6.The child spend time with the parties during the New South Wales gazetted School Terms 1,2 and 3 Holidays as follows:
(a)in even numbered years with the:
(i)Father from the conclusion of school on the last day of the required school attendance until 17:00 on the middle Saturday of the holiday period; and
(ii)Mother from 17:00 on the middle Saturday of the holiday period until the commencement of school on the first day of the required school attendance; or
(iii)as otherwise agreed between the parties; and
(b)in odd numbered years with the:
(i)Mother from the conclusion of school on the last day of the required school attendance until 17:00 on the middle Saturday of the holiday period; and
(ii)Father from 17:00 on the middle Saturday of the holiday period until the commencement of school on the first day of the required school attendance; or
(iii)as otherwise agreed between the parties.
The Child’s time with the parties during the traditional Easter Holiday period
7.The child spend time with the parties, if the child is not otherwise already in the care of the respective parties, during the traditional Easter Holiday period as follows, in:
(a)odd numbered years with the:
(i)Father from 9:00 on Good Friday until 9:00 on Easter Sunday; and
(ii)Mother from 9:00 on Easter Sunday until 9:00 on Tuesday; or
(iii)as otherwise agreed between the parties; and
(b)even numbered years with the:
(i)Mother from 9:00 on Good Friday until 9:00 on Easter Sunday; and
(ii)Father from 9:00 on Easter Sunday until 9:00 on Tuesday; or
(iii)as otherwise agreed between the parties.
The Child’s time with the parties during the New South Wales Gazetted Summer School Holidays
8.The child spend time with the parties during the New South Wales gazetted Summer School Holidays as follows, in:
(a)odd numbered years with the:
(i)Father from the conclusion of school or 15:00 on a non-school day on the last day of the school term until 9:00 on the twenty-second (22nd) consecutive calendar day; and
(ii)Mother from 9:00 on the twenty-second (22nd) consecutive calendar day after the last day of the school term until 9:00 on the first day of the new school year; or
(iii)as otherwise agreed between the parties; and
(b)even numbered years with the:
(i)Mother from the conclusion of school or 15:00 on a non-school day on the last day of the school term until 9:00 on the twenty-second (22nd) consecutive calendar day; and
(ii)Father from 9:00 on the twenty-second (22nd) consecutive calendar day after the last day of the school term until 9:00 on the first day of the new school year; or
(iii)as otherwise agreed between the parties.
9.Notwithstanding order 6 above, for Term 4 school holiday period for 2024/2025 the child shall spend time with each parent on a week about arrangement from the conclusion of the last day of the school term with the first week to be with the Mother.
The Child’s time with the parties during other special days and occasions
10.The child spend time with the Mother in every year from 19:00 on the Saturday immediately before Mother’s Day until 19:00 on Mother’s Day if the child is not otherwise already in the care of the Mother.
11.The child spend time with the Father in every year from 19:00 on the Saturday immediately before Father’s Day until 19:00 on Father’s Day if the child is not otherwise already in the care of the Father.
12.The child spend time with the parties on the child’s birthday as follows, in:
(a)odd numbered years with the Father from the conclusion of school or from 15:00 on a non-school day until 18:00 if the child is not otherwise already in the care of the Father; and
(b)even numbered years with the Mother from the conclusion of school or from 15:00 on a non-school day until 18:00 if the child is not otherwise already in the care of the Mother; or
(c)as otherwise agreed between the parties.
13.The child spend time with the Father on cultural/religious days of every year, if the child is not otherwise already in the care of the Father, as follows:
(a)from the conclusion of school until 21:00 if any of those dates and/or events fall upon a day of the child’s school attendance; or
(b)from 16:00 until 21:00 if any of those dates and/or events fall upon the child’s non-school attendance; and or
(c)as otherwise agreed between the parties.
Changeover and Ancillary provisions
14.For the purposes of facilitating the times that the child spend with the parties in accordance with the provisions of these Orders herein:
(a)during the times of the child’s school attendance, the parties each deliver the child to school and collect him from school where it is consistent and provided for herein of these Orders;
(b)during the times of the child’s non-school attendance, the changeovers occur at the McDonald’s Restaurant in Suburb C or if nominated by either party at an after school or holiday care centre provided that such nomination is made to the other party in writing not less than seven (7) days prior to the scheduled changeover; or
(c)as otherwise agreed between the parties;
(d)the parties transmit text message to each other on their respective mobile telephone numbers should either of them arrive more than ten (10) minutes late at the changeover location on each instance of contact; and
(e)the parties transmit a text message to each other respective mobile telephone numbers at least twenty-four (24) hours in advance should either of them be unable or unwilling to spend time with the child on each instance of contact as provided and stipulated herein of these Orders.
Communication and Care of the Child
15.Each party keep the other informed of his or her current residential address(es) where the child resides at all times.
16.Each party be authorised to receive from the child’s school all school information, notices, newsletters and the child’s school report(s) pertaining to the child.
17.Each party keep the other informed of the child’s progress at school as well as all parent/teacher appointments and extracurricular activities involving the child, if such information is not otherwise available for access by each other (either via email or school website), so as to provide the other with the opportunity to attend and/or participate.
18.Each party immediately advise the other in the event that the child suffers from serious illness or injury whilst in their respective care and control.
19.Each party keep the other informed of the child’s health and any health issues as well as any procedure(s) and/or operation(s) to be undertaken prior to them being undertaken except in cases of emergency (with the party in whose care the child is must inform the other as soon as possible).
20.Each party allow and facilitate the child’s desire to contact the other party through telephone and other electronic means at the urging or request of the child.
Injunctive and other provisions
21.Pursuant to Section 68B (1) (a) of the Family Law Act 1975 (‘the Act’), the parties be restrained by injunction from:
(a)discussing the content(s) of any document(s) filed in or intended for use in any current and/or future legal proceeding(s) in respect of the child other than with the leave of the Court; and
(b)saying and/or doing anything to or in the presence or hearing of the child that is in any way derogatory of the other party or detrimental to the relationship between the other party and the child.
22.The parties do all acts and things within their power and control to ensure that their domestic partner(s), friends and/or extended family members, shall not physically discipline the child or saying and/or doing anything in the presence or hearing of the child that is in any way derogatory of the other party and/or detrimental to the relationship that the other party has with the child.
23.Pursuant to Sections 62B and 65DA (2) of the Act, the particulars of the obligations these Orders create and the particulars of the consequence(s) that may follow if a party contravenes these Orders and the details of who can assist a party to adjust to and comply with an Order are set out in the Fact Sheet attached herewith and these particulars are included in these Orders.
THE COURT NOTES THAT:
A.The parents will use their best endeavours to assist X to explore his Country D cultural heritage including religion.
B.The Mother agrees that she shall not make any application to the Registrar for Child Support or the Child Support Agency or any other relevant body to have any re assessment of the current rate of child support (and or the percentage of care) for the period from the date of these Orders until the start of Term 2 2025. For the avoidance of doubt, the Mother agrees not to apply for a retroactive assessment after that period and for that period.
ON A FINAL BASIS, THE COURT ORDERS THAT:
24.The child’s name X born in 2013 be forthwith removed from the Family Law Watchlist to enable the child to travel outside of Australia and the Australian Federal Police are DIRECTED to take all steps to ensure that occurs.
25.Each of the parties be permitted to travel with the child outside of Australia to Hague Convention countries only provided that all of the following requirements have been complied with:
(a)the travelling parent must provide to the non-travelling parent with at least sixty (60) days of written notice of the travelling party’s intention to travel with the child;
(b)if the child’s Passport has expired and required to be renewed or applied for prior to the travelling party’s intention to travel with the child, the non-travelling party do all acts and things and sign all and any documents as may be necessary and required to give effect to the renewal or creation of the child’s Passport(s) and in the event of default or omission by the non-travelling party, the travelling party be empowered to solely renew or create the child’s Passport(s) without the consent, co-operation or signature of the non-travelling party prior to the travelling party travelling with the child;
(c)the travelling party must provide to the non-travelling party with copies of return airfare tickets for the child and the travelling party;
(d)the travelling party must provide to the non-travelling party a travel itinerary detailing locations and contact telephone numbers of each destination of where the child will be staying;
(e)the travelling party must ensure and facilitate the child telephoning and/or video calling the non-travelling party every two (2) days whilst the child remains outside of Australia;
(f)the travelling party must ensure that the child is appropriately vaccinated for travel and obtain travel insurance for the child and the travelling party prior to travelling outside of Australia and must provide evidence of such to the non-travelling party no later than seven (7) days prior to travelling outside of Australia; and
(g)the travelling party with whom the child travels outside of Australia be solely responsible for all costs arising from and incidental to that travel without any compensation or reimbursement from the non-travelling party; or
(h)as otherwise agreed to by the parties.
The Child’s Passport(s)
26.The child’s Passport(s), when issued, must be retained in the possession and custody of the Mother save for that the Mother must provide the child’s Passport(s) to the Father no less than fourteen (14) days prior to any overseas travel for the child with the child’s Passport(s) be returned to the Mother within a period of seven (7) days of the child’s return to Australia.
Family Therapy
27.Until the child turns 15, the parents shall do all acts and things necessary to attend upon Mr E of the F Centre, or such other Family Therapist as agreed between the parents in writing, for family therapy, and for that purpose the parents shall:
(a)Within 7 days of the date of these orders, contact Mr E to schedule an initial consultation at the earliest available date;
(b)Attend all scheduled appointments, with such appointments to occur as recommended by the family therapist;
(c)Follow all reasonable directions as recommended by the family therapist, including but not limited to, completing parenting courses or engaging in individual counselling;
(d)Facilitate the attendance of the child upon the family therapist, as directed and recommended by the family therapist;
(e)Each parent shall pay for the costs associated with their own appointments with the family therapist, and in the event a session is arranged for the child to attend, the parents shall pay one half of his costs of attendance.
28.Leave is granted to the Independent Children’s Lawyer to provide a copy of these Orders and the Single Expert Report of Mr B dated 31 July 2023 to the appointed family therapist.
29.Notwithstanding any other order, the parents shall not be required to attend a joint session with the family therapist.
30.No order as to the ICL’s costs.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These proceedings were commenced on 17 June 2021. The matter was fixed today for a three-day final parenting hearing.
At the commencement of the hearing, the Court accepted into evidence the following affidavits and exhibit (subject to further objection):
·Affidavit of the applicant mother dated 30 August 2024.
·Affidavit of the respondent father dated 13 September 2024.
·Affidavit of the Ms G dated 16 September 2024.
·Exhibit A - Single Expert Report dated 31 July 2023.
The parties have substantially agreed to parenting orders, which reflects the parties prioritising the best interests of the child, X, born in 2013 (the child). The Court will separately comment on the contribution made by the practitioners in assisting their clients achieve a substantial degree of consent, and also the ICL. The Court has taken into the parenting law and principles in Part VII of the Family Law Act 1975 (Cth) (the Act) as identified in Kapoor & Kapoor [2024] FedCFamC2F 605 at [6] – [15].
The Court had identified in the proposed orders issues relating, first, paragraphs 24 through to 29. In that regard, dealing with paragraphs 24 and 25, the applicant mother (the mother) opposed overseas travel for the child, including overseas travel to Hague Convention countries, because of the risk of the respondent father (the father) travelling back to Country D. The mother maintained that was a risk as a result of communications that had taken place with the father. Mr Robertson of counsel, on behalf of the father, pointed out that the father has substantial connections to Australia, and has given up his citizenship in Country D.
There is an obvious benefit to the child, at the age of 11, to travel overseas for his emotional, intellectual advancement, and development. If the child was at a different and much younger age, one can understand a greater concern in respect of the safety of the child raised by the mother. At this age, it is one where the child will clearly benefit from overseas travel. The Court is not prepared to reject entirely the concern of the mother as to the safety of the child, and will impose a restraint that the child is only permitted to travel to Hague Convention countries. The Court is satisfied that adequately protects the safety of the child, and it is in the best interests of the child to facilitate the overseas travel with either parent.
There was an issue raised in relation to paragraph 26 relating to passports that has not been issued yet, and who retains the same. The mother submitted that she wished to retain the passports. There was no issue in that regard maintained by the father.
In relation to family therapy, the issue raised by the father was the absence of an end date in respect of the therapy and contended that it should end after the end of term 2 in 2025. The ICL supported an end date to family therapy when the child turns 15 years old. The Court is satisfied that, at that age, it is the wishes of the child that are likely to prevail, and there is no apparent reason for further family therapy once the child has turned 15. In these circumstances, the Court is satisfied that it was in the best interests of the child to facilitate the continuation of family therapy to help the child until 15 years old, if so, recommended through the family therapist.
At the conclusion of the consent orders being made, Ms Hayward of counsel, on behalf of the ICL, advanced an application for costs. The Court heard submissions in relation to the financial position of the mother and the father. Whilst it is the case that there are assets owned by each of the parties, it is apparent that they each have substantial outgoings. Taking into account the factors to which the Court must have regard to under s 117(2A) of the Act, and, in particular, the financial circumstances of each of the parties, the Court is not persuaded that it is an appropriate matter in which to make an order in respect of the ICL’s costs.
It is for these reasons that the Court made orders 24 to 30 that were not by consent.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Oral Published Reasons for Judgment of Judge Street. Associate:
Dated: 24 September 2024
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