FEDERAL CIRCUIT COURT OF AUSTRALIA
HATZIS & HATZIS [2020] FCCA 2859
Catchwords:
FAMILY LAW – Parenting – Interim – children’s spend time arrangements between the parents – frequency of communication with the Father - changeover arrangements – form of communication to be used between the parents – best interests of the children – consideration of section 60CC factors – consideration of section 65DAA factors.
Legislation:
Family Law Act 1975 (Cth), ss. 60B(1), 60B(2), 60CA, 60CC, 60CC(2),(3), 60CC(2A), 61DA, 62B, 64B(1), 65D, 65DAA(1)(2),(3),(4),(5), 65DA(2)(5), 102NA
Cases cited:
Goode v Goode (2006) 36 Fam LR 422
Keats & Keats [2016] FamCAFC 156
Marvel v Marvel (2010) 43 Fam LR 348
Mazorski & Albright (2007) 37 FamLR 518
McCall & Clark (2009) FLC 93-405
U v U (2002) 211 CLR 238
Waterford & Waterford [2013] FamCA 33
Applicant: MS HATZIS
Respondent: MR HATZIS
File Number: MLC 13388 of 2019
Judgment of: Judge C. E. Kirton QC
Hearing date: 3 August 2020
Date of Last Submission: 3 August 2020
Delivered at: Melbourne
Delivered on: 22 October 2020 REPRESENTATION
The Applicant appearing in person
Counsel for the Respondent: Ms Mariole
Solicitors for the Respondent: Lander and Rogers ORDERS
THE COURT ORDERS THAT:
(1)The matter be adjourned to the Duty List of the Federal Circuit Court of Australia on 26 November 2020 at 9.45 am for Mention.
(2)Order 3 of the Consent Orders made on 29 November 2019 is hereby discharged.
FURTHER, THE COURT ORDERS UNTIL FURTHER ORDER THAT:
(3)The children X born in 2016 (X) and Y born in 2018 (Y) (together the Children) spend time with the Respondent Father (Father) as follows:
(a)From 22 October 2020 to 31 December 2020:
(i)From 3:00 pm until 7:00 pm each Tuesday commencing 27 October 2020;
(ii)From 3:00 pm until 7:00 pm each Thursday commencing 22 October 2020; and
(iii)From 10:00 am Saturday until 1:00 pm Sunday in each week commencing 25 October 2020 until 31 December 2020.
(b)From 31 December 2020 until further Order:
(i)From 3:00 pm until 7:00 pm each Tuesday;
(ii)From 3:00 pm until 7:00 pm each Thursday; and
(iii)From 10:00 am Saturday until 3:00 pm Sunday in each week.
(4)Notwithstanding any Order to the contrary:
(a)If the Children are not otherwise in the care of the Father, the Children spend time with the Father from 4:00 pm to 7:00 pm on each of X and Y’s birthdays;
(b)If the Children are not otherwise in the care of the Mother, the Children spend time with the Mother from 4:00 pm to 7:00 pm on each of X and Y’s birthdays.
(5)The Father be at liberty to communicate with the Children by FaceTime, Skype and/or Zoom communication each Monday and Wednesday between 4:30 pm and 5:30 pm, with the Mother to facilitate such communication by answering the call.
(6)Changeover take place in the foyer of the apartment complex where the Father lives or in such other…
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CaseChat Overview and Summary
Judge C. E. Kirton QC made orders establishing a schedule for the children's time with the Father, which varied between 22 October 2020 and 31 December 2020, and thereafter until further order. These orders included specific weekday and weekend time, as well as provisions for the children's birthdays. The court also ordered that the Father be at liberty to communicate with the children via FaceTime, Skype, or Zoom on specified evenings. Changeover arrangements were to occur at a particular location or as otherwise agreed. Furthermore, the parties were ordered to provide notice of significant medical, allied medical, educational, and schooling appointments and to continue using a specific communication application, with exceptions for emergencies. Additional consent orders addressed specific arrangements for Father's Day, Mother's Day, birthdays, and Christmas. The court also emphasised the parties' obligation to consult and inform each other regarding significant decisions and to authorise medical practitioners to communicate with the other party regarding the children's health. The matter was adjourned for mention on 26 November 2020.
Orders
Orders of the court
THE COURT ORDERS THAT:
(1) The matter be adjourned to the Duty List of the Federal Circuit Court of Australia on 26 November 2020 at 9.45 am for Mention.
(2) Order 3 of the Consent Orders made on 29 November 2019 is hereby discharged.
FURTHER, THE COURT ORDERS UNTIL FURTHER ORDER THAT:
(3) The children X born in 2016 (X) and Y born in 2018 (Y) (together the Children) spend time with the Respondent Father (Father) as follows:
(a) From 22 October 2020 to 31 December 2020:
(i) From 3:00 pm until 7:00 pm each Tuesday commencing 27 October 2020;
(ii) From 3:00 pm until 7:00 pm each Thursday commencing 22 October 2020; and
(iii) From 10:00 am Saturday until 1:00 pm Sunday in each week commencing 25 October 2020 until 31 December 2020.
(b) From 31 December 2020 until further Order:
(i) From 3:00 pm until 7:00 pm each Tuesday;
(ii) From 3:00 pm until 7:00 pm each Thursday; and
(iii) From 10:00 am Saturday until 3:00 pm Sunday in each week.
(4) Notwithstanding any Order to the contrary:
(a) If the Children are not otherwise in the care of the Father, the Children spend time with the Father from 4:00 pm to 7:00 pm on each of X and Y’s birthdays;
(b) If the Children are not otherwise in the care of the Mother, the Children spend time with the Mother from 4:00 pm to 7:00 pm on each of X and Y’s birthdays.
(5) The Father be at liberty to communicate with the Children by FaceTime, Skype and/or Zoom communication each Monday and Wednesday between 4:30 pm and 5:30 pm, with the Mother to facilitate such communication by answering the call.
(6) Changeover take place in the foyer of the apartment complex where the Father lives or in such other place as the parties agree from time to time.
(7) The parties shall:
(a) Provide the other with 14 days’ notice or as soon as reasonably practicable, of any significant pending medical or allied medical appointment with respect to the Children, or any of them, and invite the other to attend any and all such appointments either physically or by telephone and/or video link, whichever applies;
(b) Provide the other with 14 days’ notice, or as soon as reasonably practicable, of any significant pending appointment with respect to education and/or schooling with respect to the Children, or any of them, and invite the other to attend any and all such appointments either physically or by telephone and/or video link whichever applies; and
(c) Continue to use the application entitled “We Parent” to communicate with one another at all times, unless it is impracticable to do so or in the event of serious illness, injury or an emergency relating to the Children, in which case the parties shall inform the other using whatever means reasonable and practicable to enable the other to be informed as promptly as possible as to the illness, injury or emergency.
FURTHER, THE COURT ORDERS BY CONSENT THAT:
(8) Notwithstanding any Order to the contrary, the Children spend time with the Father as follows:
(a) On Father’s Day:
(i) In the event that the Children are spending time with the Father on that day, his time be extended to conclude at 5:00pm;
(ii) In the event that the Children are not already spending time with the Father on that day, from 5:00 pm on the Saturday before Father’s Day until 5:00 pm on the Sunday;
(b) In the event that the Children are not already spending time with the Father on the Father’s birthday:
(i) From 8:00 am until 7:00 pm if on a week day;
(ii) From 5:00 pm on the day before the Father’s birthday until 9:00 am the following day if on a weekend;
(c) From 3:00 pm Christmas Day until 3:00 pm Boxing Day in 2020; and
(d) As may otherwise be agreed between the parties from time to time.
(9) Notwithstanding any Order to the contrary, the Children spend time with the Applicant Mother (Mother) as follows:
(a) On Mother’s Day, in the event that the Children are not already spending time with the Mother, from 5:00 pm on the Saturday before Mother’s Day until 5:00 pm on the Sunday;
(b) On the Mother’s birthday, in the event that the Children are not already spending time with the Mother, from 8:00 am until 7:00 pm on a week day and from 5:00 pm on the day before the Mother’s birthday until 9:00 am the following day if on a weekend;
(c) From 3:00 pm Christmas Eve until 3:00 pm Christmas Day in 2020; and
(d) As may otherwise be agreed between the parties from time to time.
(10) The parties consult with and keep the other informed of all significant decisions relating to the Children, including medical appointments and health treatments provided to the Children, as well as details of any treating doctors and specialists.
(11) The parties shall:
a) Advise the other immediately in the event that the Children or either of them suffer any serious illness or injury;
b) Authorise any medical practitioner upon whom the Children or either of them may attend from time to time, to communicate with the other party in respect of the Children’s medical condition and/or requirements; and
c) Advise the other of any sporting or extracurricular activities in which the Children, or either of them are involved and both parties be at liberty to attend.
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 the Annexure and these particulars are included in these orders.
B. If in any proceedings there are allegations of family violence and the provisions of s.102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E. If s.102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
F. In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(i) the filing of documents;
(ii) the payment of any applicable filing setting down, mediation or enforcement fee or fees; and/or
(iii) any other procedural issues;
The application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
G. To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial judge, or by another appropriate court officer, shortly prior to the final hearing date.
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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