FOTILAS & TZIKA - [2020] FamCA 212

FAMILY COURT OF AUSTRALIA

FOTILAS& TZIKA

[2020] FamCA 212

FAMILY LAW – CHILDREN – Parental Responsibility – Best interests of the child – Where the father seeks equal shared parental responsibility – Where the mother seeks sole parental responsibility – Where the mother has been making decisions with respect to major issues affecting the child – Where the father has been excluded from decisions – Orders

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Best interests of the child – Where the mother seeks to relocate with the child to Greece – Where the father opposes the relocation – Where both parties have extended family– Where the child has been living with the mother – Where the mother’s circumstances will be compromised by remaining in Australia – Where the father is concerned that if relocation is permitted he will not spend time with the child – Where there is little evidence as to the child’s education – Orders

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of the child – Where the father seeks a week about arrangement – Where the mother seeks that the child live with her and spend time with the father – Where the child has been living with the mother and spending time with the father – Where the child does not want to alter the current arrangements – Orders

Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 65DAA(1), 69ZN, 69ZT, 69ZT(3)
Family Law Rules 2004 (Cth) r 15.13

AMS v AIF (1999) 199 CLR 160
Godfrey & Sanders [2007] FamCA 102
Mazorski & Albright [2007] FamCA 520
Starr & Duggan [2009] FamCAFC 115
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT:

Mr Fotilas

RESPONDENT:

Ms Tzika

FILE NUMBER:

DNC

430

2016

DATE DELIVERED:

7 April 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Berman J

HEARING DATE:

13, 14 and 15 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Romeo

SOLICITOR FOR THE APPLICANT:

Margaret Orwin Barrister and Solicitor

COUNSEL FOR THE RESPONDENT:

Ms Franz

SOLICITOR FOR THE RESPONDENT:

Darwin Family Law

Orders

That the final parenting orders made 26 June 2017 as amended on 18 August 2017 be discharged.
That the parties have equal shared parental responsibility for X born …2009 (“the child”).
That the child shall live with the mother.
That until 1 August 2023 or such later time as the mother may elect to relocate with the child to C Island in Greece the child shall spend time with the father:-
(a) At such times as may be agreed but in default:-
(i)Each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Tuesday;
(ii)For one half of all end of term holidays at such times as are agreed but in default of agreement then:-
1. The child shall live with the mother for the first…

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

AGLC: FOTILAS & TZIKA [2020] FamCA 212
Case: [2020] FamCA 212
Decision Date: 7 April 2020

CaseChat Overview and Summary

In this matter before Berman J, the father sought equal shared parental responsibility and a week-about living arrangement for the child, X. The mother sought sole parental responsibility and that the child live with her, with time spent with the father. The mother also sought to relocate with the child to Greece, which the father opposed. The child had been living with the mother and spending time with the father, and reportedly did not wish to alter the current arrangements.

The court was required to determine the best interests of the child in relation to parental responsibility, the living arrangements, and the mother's proposed relocation to Greece. Specifically, the court had to consider the father's concerns about maintaining a relationship with the child if relocation were permitted, and the mother's circumstances which she contended would be compromised by remaining in Australia. The court also had to assess the child's wishes, though evidence regarding the child's education was limited.

The court's reasoning led to orders discharging previous parenting orders and establishing equal shared parental responsibility. The child was ordered to live with the mother. The father was granted significant time with the child, including alternate weekends, half of all school holidays, and specific arrangements for Christmas and Greek Easter, with detailed provisions for communication and travel. Crucially, the orders also addressed the mother's relocation to Greece, outlining specific time arrangements for the father to spend with the child in Greece, including provisions for travel and communication, and detailing the process for obtaining and holding the child's passport. The court also made orders regarding communication between the parents, the exchange of information about the child's welfare and education, and injunctions restraining denigration of the other parent and entry into each other's residences. Finally, the parties were ordered to attend upon a child psychologist to ascertain the child's wishes and any changes in circumstances.

Orders

Orders of the court

That the final parenting orders made 26 June 2017 as amended on 18 August 2017 be discharged.

That the parties have equal shared parental responsibility for X born …2009 (“the child”).

That the child shall live with the mother.

That until 1 August 2023 or such later time as the mother may elect to relocate with the child to C Island in Greece the child shall spend time with the father:-

(a) At such times as may be agreed but in default:-

(i) Each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Tuesday;

(ii) For one half of all end of term holidays at such times as are agreed but in default of agreement then:-

1. The child shall live with the mother for the first half of the said holiday period; and

2. The child shall live with the father for the second half of the said holiday period;

AND for the purposes of determining the same, the school holidays (including Christmas school holidays) shall be deemed to commence at the conclusion of school on the last day of term and conclude at 12 noon on the Sunday immediately preceding the new school term;

(iii) For the second half of the Christmas school holidays in 2020 and each alternate year thereafter and the first half of the Christmas school holidays in 2021 and each alternate year thereafter PROVIDED that the child shall live with the mother for the first half of the Christmas school holidays in 2020 and each alternate year thereafter and the second half of the Christmas school holidays in 2021 and in each alternate year thereafter;

(iv) With the father at Christmas as follows:-

1. From 3.00 pm Christmas Eve until 3.00 pm Christmas Day in 2020 and each alternate year thereafter PROVIDED that the child shall be with the mother from 3.00 pm Christmas Day until 3.00 pm Boxing Day in 2020 and each alternate year thereafter;

2. From 3.00 pm Christmas Day until 3.00 pm Boxing Day in 2021 and each alternate year thereafter PROVIDED that the child shall be with the mother from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in 2021 and each alternate year thereafter.

(v) On Greek Easter in 2020 with the father from 5.00 pm Thursday until 5.00 pm Friday and from 5.00 pm Saturday until 5.00 pm Sunday and with the mother from 5.00 pm Friday until 5.00 pm Saturday and each alternate year thereafter;

(vi) On Greek Easter in 2021 with the mother from 5.00 pm Thursday until 5.00 pm Friday and from 5.00 pm Saturday until 5.00 pm Sunday and with the father from 5.00 pm Friday until 5.00 pm Saturday and each alternate year thereafter;

(vii) On Father’s Day from 5.30 pm on the Saturday immediately preceding Father’s Day until 7.00 pm on Father’s Day;

(viii) If the child is with the father on Mother’s Day the father’s time is to be suspended for the child to be returned to the mother from 5.30 pm on the Saturday immediately preceding Mother’s Day until 7.00 pm on Mother’s Day.

(ix) That on the child’s birthday if it falls on a school day from 4.00 pm until 7.00 pm and if the child’s birthday falls on a non-school day from 2.30 pm until 7.30 pm with the father and from 9.00 am until 2.30 pm with the mother;

(x) On … in each year being the father’s birthday from 10.00 am until 10.00 am the following day;

(xi) On … being the mother’s birthday if it falls on a non-school day and should the child be in the father’s care the father’s time is suspended from 12.00 noon until 12.00 noon the following day;

(xii) Such further or other times as the parties may agree.

Upon the mother relocating with the child to Greece the child shall spend time with the father as agreed between the parties or failing agreement as follows:-

(a) For four (4) weeks in the Greek summer school holidays in Darwin or C Island, with the father to give the mother ninety (90) days written notice as to where he wants the child to spend time with him with the mother to pay the costs of her airfare and the parties to share the costs of the child’s airfare if the time is to be spent in Darwin, with each parent to pay the airfare costs in alternate years;

(b) For four (4) weeks in December/January in C Island with the time to include Christmas and New Year in 2023 and then in each alternate year thereafter;

(i) For up to seven (7) days on no more than two (2) occasions per year at his cost PROVIDED this time is not co-joined with any other time when the child is spending time with the father pursuant to these orders and the time does not interfere with the child’s schooling or extra-curricular activities;

(ii) For up to five (5) hours on the child’s birthday;

For the time the child spends with the father if the child is in C Island the father shall at his cost collect the child at the commencement of his time and return the child to C Island at the conclusion of his time SUBJECT to the following:-

(a) The parties agree the father may spend time with the child in a location of his choosing:

(b) The father shall provide to the mother no less than sixty (60) days’ notice before the departure date of his intention to travel with the child out of Island; and

(c) That not less than fourteen (14) days prior to the departure date, the father shall provide the mother the child’s general travel itinerary, including return flights, the address at which the child will be staying and the telephone number on which the child can be contacted during the child’s absence from C Island.

That should the child travel as an unaccompanied minor:-

(a) If either parent causes the child to miss a flight THEN the parent who is responsible for the missed flight will pay for the next available flight;

(b) The flights are to be booked to arrive and depart from the nearest airport to where the parent lives;

(c) The parent collecting the child is to telephone the other parent as soon as possible after collecting the child from the airport to confirm the child’s arrival;

(d) The parent delivering the child to the airport is to telephone the other parent to confirm the child has boarded the flight within thirty (30) minutes of the child boarding the flight.

That changeover for the child in Darwin and C Island shall be at the front of the mother’s residence or at an airport as may be necessary to facilitate the child’s travel arrangements or at such other place as the parties may agree.

That the child shall have the following communication with the father:-

(a) Telephone and audio-visual calls (Skype/Viber) at times as may be agreed between the parties but failing agreement as follows:-

(i) The father will telephone the child each day between 3.00 pm and 5.00 pm C Island time;

(ii) And to facilitate such communication the mother will have the child available to take the father’s call.

(b) The child can communicate with the father at all reasonable times as he may request and the mother is to facilitate the call.

10.

That for the purposes of communicating information between the parties the mother and the father shall communicate:-

(a) By telephone for matters of an urgent nature and otherwise;

(b) By Text/Viber about day to day matters including arrangements for each party to spend time with the child.

11.

Each of the parties shall advise the other and keep the other advised of:-

(a) Their separate residential address;

(b) Telephone numbers (including landline and mobile) at which they and the child can be contacted;

(d) Any changes to their residential address and telephone number within ninety six (96) hours.

12.

That each of the parties be entitled to obtain directly from any health or welfare professional, education institution or any other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice relating to the health, education, welfare of the child and for this purpose, each of the parties shall immediately notify the other party of the name and contact details of any relevant health or welfare professional or education institution and keep the other so informed.

13.

That without admission as to liability each party be restrained and an injunction granted restraining each of them from:-

(a) Denigrating the other parent or members of the other parents’ family to the child or in the child’s hearing or presence or allowing any other person to do so;

(b) Entering into or remaining at one another’s residence except with prior written consent.

14.

That the parties shall inform the other as soon as practicable of any medical or other emergency concerning the child and provide to the other parent details of any treating practitioner, hospitalisation and medication.

15.

That each party shall inform the other and follow all reasonable medical directions regarding the medication and treatment for the child as may be recommended by the child’s general practitioner.

16.

That the parent with whom the child is spending time in accordance with these orders shall take all necessary steps to deliver the child to any extra-curricular activities that may fall during the time the child is spending time with the other.

17.

The father agrees that the mother can travel overseas on one (1) occasion per year with the child and the mother agrees that the father can travel overseas on one (1) occasion per year with the child.

18.

The father agrees that should the mother wish to take the child overseas on another occasion she may do so PROVIDING she gives sixty (60) days’ notice and the father is to have makeup time with the child upon the child’s return.

19.

That the mother and father will do all things and sign all documents necessary to obtain an Australian passport for the child within thirty (30) days of a request by either party and that, if either party does not sign the passport or application for the child within thirty (30) days THEN these orders will provide sufficient authority such that either party is hereby authorised to be the sole applicant and sole signatory for any application for a passport to issue for the child X born 2009 and each parent may exercise sole parental responsibility in relation to all necessary procedures associated with such application pursuant to the Australian Passports Act 2005 (Cth), the Australian Passports Determination Act 2015 (Cth) and the requirements of the Commonwealth Department.

20.

That when the child is not travelling overseas his passport is to remain in the possession of the mother.

21.

That the child’s passport must be given to the father within ten (10) days of the father’s written request in connection with the father taking the child overseas for a holiday, and the child’s passport is to be returned to the mother at the same time that the child is returned to the mother.

22.

That if requested the Australian Federal Police give effect to the preceding order by removing the name of the child X born … 2009, also referred to in previous orders as X from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

23.

That no later than 30 March 2023 the parties and the child do attend upon such child psychologist as may be agreed at their joint expense to ascertain and consider the wishes of the child and any change in the child’s circumstance.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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