Haniyya & Terentiy
[2023] FedCFamC1A 210
•1 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Haniyya & Terentiy [2023] FedCFamC1A 210
Appeal from: Terentiy & Haniyya [2023] FedCFamC2F 832 Appeal number: NAA 204 of 2023 File number: SYC 759 of 2020 Judgment of: CHRISTIE J Date of judgment: 1 December 2023 Catchwords: FAMILY LAW – APPEAL – Whether the primary judge was in error by not making orders concerning alternate carers for the child in the event neither parent was available to care for the child – Where the order proposed did not create enforceable rights – Where the proposed order did not specify which arrangement was to take priority nor was there evidence to support the necessity of that order – Where the order did not create certainty – Where the primary judge was not in error to reject the proposed order – Incompetent ground – Where a ground of appeal is directed to an order that is not the subject of the Notice of Appeal –– Parental Responsibility – Whether the primary judge erred in making an order for equal shared parental responsibility – Where the primary judge did not misunderstand nor misapply the law – Where the primary judge was aware of the parties’ difficulties in communication – Where the orders made for parental responsibility were designed to assist the parties in the event of an impasse – Where the appellant herself had sought orders for equal shared parental responsibility in respect of some specified matters – Appeal dismissed – Directions as to costs. Legislation: Family Law Act 1975 (Cth) s 65DAC Cases cited: Chappell & Chappell (2008) FLC 93-382; [2008] FamCAFC 143
Newlands & Newlands (2007) 37 Fam LR 10; [2007] FamCA 168
Number of paragraphs: 42 Date of hearing: 21 November 2023 Place: Sydney Solicitor for the Appellant: Mr Brown, Browns the Family Lawyers Solicitor for the Respondent: Ms Wearne, Reid Family Lawyers ORDERS
NAA 204 of 2023
SYC 759 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HANIYYA
Appellant
AND: MR TERENTIY
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
1 DECEMBER 2023
THE COURT ORDERS THAT:
1.Appeal NAA 204 of 2023 is dismissed.
2.Any applicant for costs shall file evidence and written submissions within seven (7) days of these orders.
3.The respondent to any application for costs shall file any evidence and written submissions within seven (7) days of receipt of the applicant’s evidence and submissions.
4.Any submissions in reply shall be filed within a further three (3) days, at which time judgment in the costs matter will be reserved.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Haniyya & Terentiy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an appeal from final parenting orders made by a Judge of the Federal Circuit and Family Court of Australia (Division 2).
The Amended Notice of Appeal seeks that if the appeal is allowed this Court re-exercise the discretion and make orders in accordance with the appellant’s proposal.
The respondent opposes the appeal.
For the reasons which follow the appeal will be dismissed.
THE TRIAL
The proceedings before the primary judge concerned competing applications for final parenting orders. The primary judge set out at [29] the essential issues in dispute:
(a) Parental responsibility;
(b) The child’s time with the father during the school term and, in particular, whether he should live with each parent on an equal time basis (as sought by the father) or whether his time with the father should be 5 nights per fortnight (as sought by the mother);
(c) How school holidays should be arranged (with the parents agreeing that the school holidays should be shared equally, their dispute being limited to how this is arranged);
(d) Special occasions and in particular, whether orders should be made for defined times;
(e) Changeovers;
(f) Overseas travel; and
(g) Various other consequential orders including some orders by way of injunctive relief.
The primary judge further set out at [31] relevant uncontested facts (which formed an exhibit in the hearing). I have included those parts of the uncontested facts as may be relevant to the appeal as follows:
…
(i) In early September 2018, the parties separated on 2 September (on the mother’s version) and 7 September (on the father’s version).
(j) In late September 2018, the parties returned to Sydney from [Town C] and moved in with the father’s family in [Suburb D], NSW for, approximately, 6 weeks.
(k)In November 2018, the parties moved into their own rented accommodation in [Suburb E], NSW (“the [Suburb E] property”).
(l) On 9 November 2018, the parties signed a parenting plan which provided that:
(i) They will be equally responsible for the care of the child; and
(ii) The child would be under the primary care of the father on Mondays, Wednesdays and for one (1) day of the weekend and in the primary care of the mother on Tuesdays, Thursdays and for one (1) day of the weekend and at day-care on Fridays.
(m) In September 2019, the mother agreed for the father to take the child to the child’s paternal grandfather on Tuesdays from 8.30am to 5.00pm.
(n) In September 2019, the mother requested mediation through [F Family Services] as a pre-requisite to applying for Court orders.
(o) On 29 November 2019, the parties attended mediation with [F Family Services].
(p) On 13 December 2019, the mother told the father that she was in the process of applying for Court orders in relation to various issues, including her travelling to [Country G] with the child.
(q) On 6 February 2020, the father commenced these proceedings.
(r) On 22 April 2020, the Court made, inter alia, interim orders as follows:
(i) That, pending further order, the parties be restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia;
(ii) That the Australian Federal Police give effect to the above order, by placing the name of the child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal;
(iii) By consent, the child live with the mother; and
(iv)The child spend time with the father as agreed between the parties in writing or further order of the Court.
…
(v) On 30 September 2020, the parties attended a Legal Aid mediation. Following mediation, the father’s time with the child increased from one (1) night per week to 2 nights per week.
…
(y) On 18 October 2021, the mother informed the father that she had placed the child on a waiting list to attend [K preschool] in [Suburb L] on Thursdays and Fridays. The mother did not consult the father before doing so.
(z)On 10 December 2021, the parties entered into orders, by consent, that the child spend 6 nights per fortnight with the father as follows:
(i) In week one (1), from after day-care on Tuesday until 6.00pm on Thursday (2 nights); and
(ii) In week 2, from after day-care on Tuesday until 6.00pm on Thursday and from after day-care on Friday until 4.00pm on Sunday (4 nights).
(aa)On 13 December 2021, the mother advised the father that a place was available for the child to attend at [M preschool] on Thursdays and Fridays after placing the child on a waitlist there, without the father’s prior consent or involvement.
(bb) On 11 February 2022, the mother sent the father an email agreeing to the father’s proposal to enrol the child in [School N] commencing in 2023.
…
(dd) On 14 March 2022, the mother sent a letter to the father’s legal representatives confirming her agreement for the child to be enrolled in and attend at [School N] in 2023.
(ee) In late March 2022, the child commenced preschool at [O preschool] on Thursdays and Fridays.
(ff) On 27 June 2022, the mother told the father that she had relinquished making decisions for the child via an email which read: “I confirm to date, I have given up on making decisions for [the child] to keep the peace and save the time and energy that is necessary to survive a life. I confirm I will leave [the Court] to decide on the sole or shared parental responsibility based on the evidence”.
(gg) On 23 July 2022, the mother told the father that she intended to move to the [Suburb P] area to be close to the child’s school. The mother asked the father whether, following the commencement of the 2023 school year, he or his family would care for the child after school from 6.00pm until 6.30pm on days when the child was in her care.
(hh) On 30 August 2022, the mother asked the father to care for the child on some Thursday nights and some weekends when the child was to, otherwise, be in her care.
(ii) Between 13 September 2022 and 18 September 2022, the child spent 5 consecutive nights in the father’s care.
…
(kk)On 8 October 2022, the mother requested an adjournment of the final hearing as she intended to travel to [Country G].
(ll) On 13 October 2022, the mother travelled to New Zealand and then to [Country G], arriving in [Country G] on 16 October 2022.
(mm) On 15 October 2022, the father advised the Department of Human Services of the change in care arrangements for the child, being that the child was then in the father’s full-time care and so as to change the assessment of child support.
…
(pp)On 12 December 2022, the father enrolled the child in [R vacation care] for January 2023, which was to occur during the mother’s time with the child. As the mother was in [Country G] the father did so without the prior consent or involvement of the mother as he maintained that he did not know when the mother was to return to Australia from [Country G]. The father emailed the mother in terms regarding attempts from the Child Support team to contact her in relation to contributing to the child’s expenses.
(qq)Between 19 December 2022 and 27 December 2022, the father offered the mother time with the child following her return from [Country G].
(rr)On 27 December 2022, the arrangement whereby the child lived with the father resumed, being largely from Tuesday 7.30pm until Thursday morning and then again from Saturday at 10.30am until 5pm on Sunday (that is, 6 nights a fortnight).
(ss) On 1 February 2023, the child commenced kindergarten at [School N].
…
(bbb) Neither parent reported having any particular religious faith and the child was not being brought up in a religion.
(ccc) The mother’s parents and her extended family live in [Country G].
(ddd) The father’s parents live at [Suburb D] on the [S Area] of Sydney, NSW. The father’s sister and her family also live on the [S Area].
THE APPEAL
The appeal is concerned with four topics:
(1)Whether failure to make orders concerning alternate carers for the child in the event of parental unavailability constituted error;
(2)Whether the judge’s failure to make an order about parental attendance at extra-curricular events was in error;
(3)Whether the orders which related to Christmas and Easter were in keeping with the reasons for judgment and paid regard to the mother’s position at trial; and
(4)Whether the primary judge erred in making an order for equal shared parental responsibility.
Ground 1
Ground 1 asserted that the primary judge:
…erred in failing to consider at all, or to properly consider, the application of the appellant for orders pursuant to order 28 of her Final Minute of Orders Sought and erred in finding that the orders sought by the mother were “outside jurisdiction”
Order 28 of the appellant’s final minute of orders sought per her Further Amended Response provided:
Notwithstanding Orders 22, 23, 24, 25, 26, and 27, when either parent is sick or needs childcare due to personal occasions or on holidays or business trips/ conferences meetings/ overseas' studies without the child for a maximum of 3 weeks at a time, the other parent will care for the child. In the event that both parents are unable to care for the child, the father shall arrange for his family (the child’s grandparents or aunt) to care for him.
The appellant’s Summary of Argument notes (correctly) that she did not rely on her Further Amended Response at trial. Instead, she relied on a Minute of Orders which became Exhibit 3. However, she sought an order in similar terms to proposed order 28 at proposed Order 17 which read:
17.Notwithstanding Orders 11, 12, 13, 14, and 16, when either parent is sick or needs childcare due to personal occasions or on holidays or business trips/conferences meetings/ overseas’ studies without the child for a maximum of 3 weeks at a time, the other parent will care for the child. In the event that both parents are unable to care for the child, the father can arrange for the child to be cared for by his grandparents or aunt if they agree, or the mother can arrange for other childcare arrangements that might conflict with the existing childcare arrangements between the parents.
The order the appellant sought was problematic.
The primary judge said at [152]: “[o]rders which provide for the child’s grandparents or aunt to agree to matters are outside jurisdiction”.
I understand that his Honour was expressing concern that he did not have jurisdiction to make an order compliance with which depended upon the consent of a third party to the litigation.
The appellant argued that the order was not “outside jurisdiction” because the order the mother sought did not require the third parties to agree it merely came into force if they agreed.
Orders must, as the primary judge himself noted, be expressed with “as little ambiguity as practicable” citing Chappell & Chappell (2008) FLC 93-382 and Newlands & Newlands (2007) 37 Fam LR 103.
The primary judge was being asked on a plain reading of the appellant’s proposed Order 17 to provide for a hypothetical absence of both parents for a period of up to three weeks by the making of an order which merely recited that the respondent may pursue childcare agreement X or the appellant may pursue childcare arrangement Y. Neither of the options was, pursuant to the proposed order, to have priority. There was no specific evidence to support the necessity for an order nor the availability of the options. The appellant made no submissions on the topic to the primary judge.
The appellant’s advocate said that the primary judge had available to him evidence of the close relationship of the child with the respondent’s family and their previous involvement in caring for the child but that is not a substitute for specific evidence in support of the order. Similarly, the appellant contended that the order was necessary because there was uncertainty arising from the mother’s extended absence. I accept that the mother’s unexpected and extended absence was likely a cause of uncertainty for the child and both parents. However, the form of proposed Order 17 did not create certainty and the primary judge was not in error to reject it.
Ground 2
Ground 2 was set out as follows:
His Honour erred in his finding that order 36 sought by the appellant mother in her Further Amended Response was inconsistent with order 12 as sought by the respondent father sought by the father in his further Amended Initiating Application; and thereby erred in preferring the order sought by the respondent father and failed to consider or properly consider the order sought by the appellant mother.
Appeals lie against orders and not reasons. The appeal ground appears directed to Order 9 of the primary judge’s orders but Order 9 is not the subject of the Amended Notice of Appeal.
This appeal ground is not competent and will not be further considered.
Ground 3
Ground 3 contended:
His Honour erred in making orders not providing for the mother to spend time with the child at Christmas for the next 3 years or on the Easter long weekend and did not give any consideration or in the alternative did not give proper consideration to the benefits of the child spending such occasions with the mother.
The mother did not specifically seek time at Christmas in any version of her application. The mother’s application was:
16.The child spends special occasions with each parent upon request and as agreed between the parties in writing.
The primary judge ordered that the father have some specified special occasions which included the weekend of Easter (Order 5(d)) and otherwise as “agreed between the parties in writing upon receiving any specific request by the other party” (Order 5(g)). The primary judge similarly ordered that the mother have some specified special occasions which included Chinese New Year and otherwise “as agreed between the parties in writing upon receiving any specific request by the other party” (Order 6(f)).
In effect the primary judge made precisely the order the appellant sought. In the absence of any submission by her in the Court below in support of a position different from that contained in her application, the appeal ground is without merit.
Ground 4
Ground 4 related to the primary judge’s orders for the parties to have equal shared parental responsibility for the children and was particularised as:
His Honour erred in making orders for Equal Shared Parental Responsibility and in particular:
(a) His Honour erred in his conclusion that the effect of an order for Equal Shared Parental Responsibility does not require parties to reach a joint decision, but to consult one another and make a genuine effort to reach agreement about major long-term issues in relation to the child
(b) His Honour erred in his conclusion that the parties have the capacity to jointly make decisions about major long-term decisions
(c) His Honour failed to properly consider the evidence in relation to the history of the parties in making or failing to make major long-term decisions
(d) His Honour erred in his assumption that, merely because parenting decisions including major long-term decisions had been made in relation to the child, that these were in a true sense “joint decisions”
The ground has a number of subparagraphs which raise distinct issues. Ground 4(a) contends the primary judge misstated the law as it concerns the effect of an order for equal shared parental responsibility and was the primary focus of the appellant’s argument.
Grounds 4(b) and (d) are complaints that certain of the judge’s findings were unavailable on the evidence.
Ground 4(c) complains of a failure to give proper consideration. I understand this as a complaint that the primary judge failed to afford sufficient weight to evidence.
As indicated above the primary focus of the submissions was on whether the judge had misstated and hence misapplied the statutory provision.
At [47] the primary judge said:
…The effect of an order for equal shared parental responsibility is to require the parents not to reach a joint decision but to consult one another and make a genuine effort to reach agreement about major long-term issues in relation to the child (s.65DAC of the Act)…
The appellant submitted that s 65DAC(2) of the Family Law Act 1975 (Cth) (“the Act”) explicitly requires those who have equal shared parental responsibility to reach joint decisions.
The respondent’s submissions on this issue as set out in the Summary of Argument read:
28) It is firstly submitted that no error of law was made by the Trial Judge when he stated that section 65DAC Family Law Act (the Act) does not require the parties to reach a joint decision.
29)Section 65DAC (2) requires a major long-term decision to be made jointly by 2 people who share parental responsibility for a child. Consistent with the principle enunciated in s 60B (2) (d), a jointly agreed decision is the desired outcome.
30) However, that s 65DAC (2) does not require persons who share parental responsibility to agree or make a joint decision. As the Trial Judge identified, and as a matter of common sense, persons with parental responsibility cannot be required to reach a joint decision. Sometimes their different viewpoints make that impossible.
31) Section 65DAC (3) specifies the obligations that each person who shares parental responsibility for a child is required to discharge when attempting to reach a joint decision. They can be required to consult with one another and make a genuine effort to reach agreement. If, after doing so, they cannot make a joint decision, then they must return to Court.
32) As the Full Court observed in Cameron & Brook [2018] FamCAFC 175, at paragraph 26:
“Plainly, … neither s60B nor s 65DAC of the Act seek to limit the power of the Court to make parenting orders in the event that the desired agreement is not possible.”
And at paragraph 35:
“… It is, of course, entirely desirable that parents should reach agreement about issues – all issues – affecting their children. The Act now enshrines that very concept, indeed obliging parties to consult and seek to reach agreement when, as here, they share parental responsibility (s 65DAC). However when parents cannot or will not do that which they should, and which the Act obliges them to do, the Court’s powers are not excluded but, rather, enlivened, if its jurisdiction is properly invoked.”
(As per the original)
There is merit in the respondent’s submissions.
The reasons for judgment in this matter as they relate to the decision to make an order for equal shared parental responsibility were comprehensive. As part of the discussion the primary judge returned to the “mechanism” for joint decision making set out in the Act at [56]:
56.…the Court accepts the father’s proposal for such a mechanism which reflects the statutory requirements created by s 65DAC of the Act, being:
(1) Consultation: s 65DAC(3)(a);
(2) A genuine effort to come to joint decisions: s 65DAC(3)(b);
(3) Decisions to be made jointly: s 65DAC(2).
No reading of [56] could support the conclusion that the primary judge either misunderstood or misapplied the relevant law. The appellant’s argument requires the reader to read [47] in isolation.
Turning then to Grounds 4(b), (d) and (c) – the primary judge had before him considerable evidence about the parties’ capacity (and lack of capacity) to cooperate. Significantly, the Court made findings about the potential disadvantages to the child of an order for sole parental responsibility in favour of the mother in respect of education: [51], [58].
To the extent that the appellant contended that the reasons for judgment and resulting orders failed to appreciate the parties’ communication difficulties, that submission is not accepted. The primary judge was acutely aware of these difficulties and made comprehensive orders designed to assist the parties in the event of impasse. The appellant’s argument is also problematic in circumstances where she sought equal shared parental responsibility in respect of specified matters and sole parental responsibility in respect of others.
COSTS
Both parties sought that costs be dealt with upon receipt of the reasons for judgment.
I will direct that any application for costs be dealt with in chambers as that course was agreed to by both parties.
The applicant shall file any evidence and written submissions within seven (7) days of receipt of these reasons for judgment.
The respondent shall file any evidence and written submissions within seven (7) days of receipt of the applicant’s evidence and submissions.
Any submissions in reply shall be filed within a further three (3) days, at which time judgment in the costs matter will be reserved.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 1 December 2023