FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gazzi & Khera [2024] FedCFamC2F 561
File number(s): PAC 580 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 7 May 2024 Catchwords: FAMILY LAW – PARENTING – Best interests of children – Orders made. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D, 61DA(3), 65DAA (3) Cases cited: Saif & Saif [2020] FamCA 119 Division: Division 2 Family Law Number of paragraphs: 124 Date of hearing: 25 – 27 March 2024 Place: Parramatta Counsel for the Applicant: Mr Robertson Solicitor for the Applicant: Lyons Law Group Counsel for the Respondent: Ms Stolier Solicitor for the Respondent: Legal Aid NSW Counsel for the Independent Children's Lawyer: Mr Reeves Solicitor for the Independent Children's Lawyer: Harb Lawyers ORDERS
PAC 580 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GAZZI
Applicant
AND: MS KHERA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
7 MAY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
Parental Responsibility
1.That the parties have equal shared parental responsibility for the child, X born in 2016 (‘the child’).
Child’s live and spend time with arrangements
2.That the child shall live with the Mother.
3.That the child spend time with the Father as follows:
(a)Stage 1: From the commencement of these Orders and continuing for a period of four (4) weeks, from the conclusion of school on Friday (or otherwise 3.00 pm) until 6.00 pm on Saturday, and each alternate weekend thereafter;
(b)Stage 2: Commencing upon the conclusion of Order 3(a) and continuing for a period of four (4) weeks, from the conclusion of school on Friday (or otherwise 3.00 pm) until 6.00 pm on Sunday and each alternate weekend thereafter;
(c)Stage 3: Commencing upon the conclusion of Order 3(b), from the conclusion of school on Friday (or otherwise 3.00 pm) until commencement of school or 9.00 am Monday and each alternate weekend thereafter.
(d)During the school holidays as follows:
(i)During the 2024 school holiday periods at the end of Term 2 and each school holidays other than Term 4 school holiday:
A.Unless otherwise agreed, from conclusion of school or 3:00pm on the last day of the school term for one half of the holidays;
(ii)Commencing from Term 4 2024 school holidays, and each Term 4 school holiday thereafter:
A.On a week about basis commencing on the first Friday of the school holiday, unless otherwise agreed.
(e)At such other and additional times as agreed to between the parents in writing.
4.That the child shall spend additional time with the Father as follows:
(a)On Father’s Day from 10.00 am until 6.00 pm;
(b)On the child’s birthday from 4.00 pm to 7.00 pm if on a school day, otherwise 9.00 am to 1.00 pm on any other day; and
(c)On Eid Al Fitr and Eid Al Adha as agreed to between the parents in writing (via text message).
5.That for the purposes of the child spending time with the Father, and…
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CaseChat Overview and Summary
The court was tasked with determining the appropriate division of parental responsibilities and the specific living and spending time arrangements that would ensure the child's welfare was prioritised. This included considering the views of the Independent Children's Lawyer, who provided input on what would be in the child's best interests. The court examined various factors, including the child's age, the parents' ability to provide for the child's needs, and the importance of maintaining a relationship with both parents.
Judge Newbrun concluded that it was in the child's best interests for the parents to have equal shared parental responsibility. The court ordered that the child live primarily with the mother, with a detailed schedule for the father's time with the child, which included various stages and special occasions. The court also mandated the use of a co-parenting app for communication and record-keeping between the parents, and set out specific guidelines for communication between the parents and the child. Additionally, the court imposed restraints on the parents to prevent them from exposing the child to the parents' disputes and required both parents to attend a parenting program.
The final orders of the court included provisions for the child's living arrangements, time-sharing schedules, communication protocols, and educational and medical considerations. The court also addressed the provision of information between the parents and the need for the parents to cooperate in the child's best interests. The orders ensure that the child's welfare remains the paramount consideration in all decisions made by the parents.
Orders
Orders of the court
PAC 580 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR GAZZI
Applicant
AND:
MS KHERA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
7 MAY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
Parental Responsibility
1. That the parties have equal shared parental responsibility for the child, X born in 2016 (‘the child’).
Child’s live and spend time with arrangements
2. That the child shall live with the Mother.
3. That the child spend time with the Father as follows:
(a) Stage 1: From the commencement of these Orders and continuing for a period of four (4) weeks, from the conclusion of school on Friday (or otherwise 3.00 pm) until 6.00 pm on Saturday, and each alternate weekend thereafter;
(b) Stage 2: Commencing upon the conclusion of Order 3(a) and continuing for a period of four (4) weeks, from the conclusion of school on Friday (or otherwise 3.00 pm) until 6.00 pm on Sunday and each alternate weekend thereafter;
(c) Stage 3: Commencing upon the conclusion of Order 3(b), from the conclusion of school on Friday (or otherwise 3.00 pm) until commencement of school or 9.00 am Monday and each alternate weekend thereafter.
(d) During the school holidays as follows:
(i) During the 2024 school holiday periods at the end of Term 2 and each school holidays other than Term 4 school holiday:
A. Unless otherwise agreed, from conclusion of school or 3:00pm on the last day of the school term for one half of the holidays;
(ii) Commencing from Term 4 2024 school holidays, and each Term 4 school holiday thereafter:
A. On a week about basis commencing on the first Friday of the school holiday, unless otherwise agreed.
(e) At such other and additional times as agreed to between the parents in writing.
4. That the child shall spend additional time with the Father as follows:
(a) On Father’s Day from 10.00 am until 6.00 pm;
(b) On the child’s birthday from 4.00 pm to 7.00 pm if on a school day, otherwise 9.00 am to 1.00 pm on any other day; and
(c) On Eid Al Fitr and Eid Al Adha as agreed to between the parents in writing (via text message).
5. That for the purposes of the child spending time with the Father, and unless otherwise agreed to between the parents in writing, changeover shall occur as follows:
(a) On occasions that changeover coincides with the commencement or conclusion of school, then changeover shall occur with the Father collecting/delivering the child to the child’s school; and
(b) At all other times, the Father or his nominee shall pick up the child from, and return the child to, the Mother (or her nominee) outside Suburb B Library.
6. That notwithstanding any other Order or arrangement herein, the child shall live with the Mother on the following days of special significance:
(a) On Mother’s Day from 10.00 am until 6.00 pm;
(b) On the child’s birthday, from 1.00 pm until 5.00 pm (if not on a school day);
(c) On Eid Al Fitr and Eid Al Adha as agreed to between the parents in writing (via text message);
AND in the event the child is spending time with the Father during the above periods, then the Mother shall collect the child from the Father outside Suburb B Library at the commencement of the periods and return the child to the Father outside Suburb B Library at the conclusion of the periods (if the child is due to spend time with the Father).
7. That in the event that the Mother is unavailable to care for the child, then the Father shall be given first priority to care for the child and shall make all necessary arrangements to facilitate the care of the child until such time as the Mother indicates she is in a position to resume the care of the child.
Communication
8. That for the purposes of communicating information about the child between the parents, and unless in the case of an emergency in which case the parents shall communicate via mobile telephone, the parents shall:
(a) download and subscribe to the OurFamilyWizard or such other agreed equivalent co-parenting app within seven (7) days from the making of these Orders. The parties shall pay their share of the subscription fee or seek a waiver, and ensure that their subscription is renewed every year thereafter;
(b) use the online communication feature to share all key documentary matters regarding the child, including school reports;
(c) use the Calendar feature to arrange any agreed variations to the order and/or record any medical appointments;
(d) use the Expense feature to record any child related expenditure that relates to the Orders;
(e) use the Messaging feature when information cannot be conveyed in the Calendar, Expense, and online communication features.
9. That the Father is permitted to communicate with the child by telephone or video call every Monday and Wednesday between 6.30 pm and 7.00 pm, and for that purpose, the Father shall initiate the call to the Mother’s mobile telephone and the Mother shall do all things necessary to facilitate such communication including ensuring the mobile telephone is switched on, fully charged and within range of reception.
10. That the Mother be permitted to communicate with the child via telephone or video call every day that the child is spending overnight time with the Father between 6.30 pm and 7.00 pm, and for that purpose, the Mother shall initiate the call to the Father’s mobile telephone and the Father shall do all things necessary to facilitate such communication including ensuring the mobile telephone is switched on, fully charged and within range of reception.
Restraints
11. That the Mother and Father are restrained from:
(a) Discussing any proceedings between them or the contents of any documents filed in or intended for use in any proceedings to, with or in the presence or hearing of the child;
(b) Permitting any person from discussing any proceedings between the parents or the contents of any documents filed in or intended for use in proceedings to, with or in the presence or hearing of the child;
(c) Abusing, insulting, belittling, rebuking, or otherwise denigrating the other parent or a member of that parent’s extended family in the presence or hearing of the child;
(d) Permitting any other person from abusing, insulting, belittling, rebuking, or otherwise denigrating the other parent or a member of that parent’s extended family in the presence or hearing of the child;
(e) Questioning the child concerning the personal and work matters of the other parent.
Courses/Programs
12. That within 14 days, the Mother and Father shall enrol in and subsequently complete the earliest available ‘Keeping Kids in Mind or Parents Not Partners course (by C Family Services)’ parenting program, and provide the other parent with evidence of their enrolment and a certificate of completion upon completing the course.
Provision of Information
13. That the Mother and Father shall keep one another informed in writing via the parenting application or text message/phone call in an emergency, of:
(a) Any significant illness, significant injury or significant medical problem suffered by the child whilst in their care;
(b) Any medication that has been prescribed for the child; and
(c) Their respective telephone number(s) and email address and the parents shall advise one another within twenty-four (24) hours should these details change.
Medical Issues
14. That the Mother and Father shall ensure that the child attends upon the same medical facility as nominated by the Mother for her general medical care, that being D Medical Centre in Suburb B, except in the case of an emergency or otherwise if by agreement. This Order authorises any treating health professional to communicate with the Mother and Father about the condition and treatment of the child.
15. That each of the parents shall ensure that they comply with all reasonable recommendations of the child’s treating medical practitioners and/or allied health professionals (such as Speech Therapists).
Schooling
16. That the Mother and Father be authorised, by this Order, to obtain information about the child’s educational progress and/or other school related activities and for this purpose, the school attended by the child is to supply both parents all copies of newsletters, school reports, photograph order forms, and copies of certificates and awards obtained by the child at the request of each parent and at their own cost.
17. That the parents are each permitted to attend all events involving the child which ordinarily allow for parental attendance including:
(a) Sporting events;
(b) Extracurricular activities; and
(c) School functions and events including concerts, school assemblies, sports days, parent and teacher interviews and school functions.
18. That the Mother have leave to provide a copy of these Orders to the child’s school, any After School Care provider, and any extra-curricular activity provider at which the child may attend from time to time.
Miscellaneous
19. The Mother shall hold all documents belonging to or concerning the child, including passports, medical reports, health care cards, Medicare cards, school documents and the like.
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.
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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