FAMILY COURT OF AUSTRALIA
| HOPMAN & SHU | [2007] FamCA 600 |
| FAMILY LAW – PARENTING – Best Interests of a Child – Proposals involved the child continuing to live in North Queensland with his father who had been his primary caregiver or living with his mother in Melbourne – Significant distance and parties’ relative impecuniosity precludes considerations of equal or substantial and significant time with the other party – Ex-parte orders obtained for the child to live with the father due to the mother’s absence from the country – Reasons for the absence disputed – Father alleged that mother had abandoned the child to the father and returned to China – Found that the father had thwarted the mother’s attempts to gain a visa after persuading her to leave Australia – Father’s concerns that mother will remove child from Australia to China not made out – Family violence – Insufficient evidence provided by either the mother or the father to enable findings to be made – Child to live with the mother FAMILY LAW - PROPERTY - PROPERTY DIVISION – Very little evidence put before the Court – Mother’s contribution was about 14-18 per cent – Adjustment of six percent for long-term care of a child FAMILY LAW - CHILD SUPPORT – APPLICATION FOR DEPARTURE – Insufficient evidence – Application adjourned to another date to be fixed |
| Family Law Act 1975 |
Briginshaw v Briginshaw (1936) 68 CLR 333
Townsend v Townsend (1995) FLC ¶92-569
Chorn v Hopkins (2004) FLC ¶93-204
| APPLICANT: | MR HOPMAN |
| RESPONDENT: | MS SHU |
| FILE NUMBER: | TVF 192 of 2005 |
| DATE DELIVERED: | 18 May 2007 |
| PLACE DELIVERED: | Cairns |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 14-18 May 2007 |
REPRESENTATION
| THE APPLICANT FATHER: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Demack |
| SOLICITOR FOR THE RESPONDENT: | Ms Cuthbertson |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr Fellows |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Ms Gray |
Orders
(As amended under the slip rule on 23 May 2007)
These orders relate to T (who is also known as “[I]”) who was born on … November 2000 (“[T]”).
The parents will not have equal shared parental responsibility for T.
T will live primarily with his mother but will spend time with his father as hereafter set out.
T’s mother will have responsibility for all day-to-day decisions about T when he is living with her and T’s father will have responsibility for day-to-day decisions about T’s care and welfare when T is spending time with him in accordance with these orders.
(a) Long term decisions about T’s care, welfare and development will be made by T’s mother but she will, wherever possible, consult with T’s father prior to making any such decision.
(b)In particular, but without limiting in any way the last order, if T requires medical treatment (other than a ordinary consultation with a doctor) T’s mother will give immediate notice of the requirement to T’s father and will keep him informed about the progress and development of any medical treatment. In this context “medical” includes dental and other forms…
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- Hopman & Shu [2007] FamCA 600
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- [2007] FamCA 600
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CaseChat Overview and Summary
The legal issues before the court included determining T's best interests under section 60CC of the Family Law Act 1975, specifically considering the benefit of a meaningful relationship with both parents and the need to protect T from harm. The court also had to assess the extent to which each parent had fulfilled their responsibilities, including participation in major long-term decisions, spending time with T, communicating with T, and facilitating the other parent's involvement. The presumption of equal shared parental responsibility under section 61DA was a key consideration, as was whether this presumption should be rebutted due to concerns about family violence or the child's best interests. Additionally, the court addressed property division, where the mother's contributions were assessed, and child support, where an application for departure was adjourned due to insufficient evidence.
The court found that the father had thwarted the mother's attempts to obtain a visa after persuading her to leave Australia, and his concerns about her removing T to China were not substantiated. Insufficient evidence was presented by either parent to make findings regarding family violence. Applying section 60CC, the court determined that equal shared parental responsibility was not in T's best interests, and T would live primarily with his mother, spending specified time with his father. The court also made orders regarding decision-making responsibilities, communication, travel arrangements, and the father's ability to send materials related to African culture. Further orders included restraining both parents from removing T from Australia and placing T on the Airport Watch List. The property division involved an adjustment of six percent in favour of the mother for her long-term care of T, reflecting her contribution of approximately 14-18 percent.
Orders
Orders of the court
(As amended under the slip rule on 23 May 2007)
1.
These orders relate to T (who is also known as “[I]”) who was born on … November 2000 (“[T]”).
2.
The parents will not have equal shared parental responsibility for T.
3.
T will live primarily with his mother but will spend time with his father as hereafter set out.
4.
T’s mother will have responsibility for all day-to-day decisions about T when he is living with her and T’s father will have responsibility for day-to-day decisions about T’s care and welfare when T is spending time with him in accordance with these orders.
5.
(a) Long term decisions about T’s care, welfare and development will be made by T’s mother but she will, wherever possible, consult with T’s father prior to making any such decision.
(b) In particular, but without limiting in any way the last order, if T requires medical treatment (other than a ordinary consultation with a doctor) T’s mother will give immediate notice of the requirement to T’s father and will keep him informed about the progress and development of any medical treatment. In this context “medical” includes dental and other forms of therapy such as physiotherapy.
(c) If T requires medical treatment when he is in either parent’s care and the nature of the care and the need for it is such that it is impossible to consult the other parent before that care is given to T than the parent in whose care he then is will arrange for such care but will advise the other parent as soon as practicable after the treatment is administered and consult with the other parent about future care.
6.
This is not a matter in which T should spend equal time with each of his parents and this is not a matter in which he should spend substantial and significant time in accordance with the terms of the Family Law Act 1975 with his father.
7.
T will spend the following time with his father, unless the parties otherwise agree, and these orders should not be taken in any way to limit any additional time that the parents of T may agree that T will spend with his father:
(a) For the whole of the Victorian second term school holidays in 2007;
(b) For the period from 19 December 2007 until the Wednesday proceeding the recommencement of school in the following year; and
(c) For the whole of the first term Victorian gazetted school holidays.
8.
(a) The pattern above will continue on the basis that the Christmas school holidays will be spent with his father from 19 December until the Wednesday before the recommencement of school in every second year and in the alternate year for the last three weeks of the Christmas school holidays ending on the Wednesday before the recommencement of school.
(b) T will spend the whole of the first term school holidays in each year with his father and will alternate between spending the holidays at the end of the second term and the third term with his father in each year. In 2008 T will spend the third term school holidays with his father and the shorter period of Christmas holidays (January 2009)
(c) Each school holiday period (unless the parties otherwise agree) will commence for the purposes of these orders on the first day after the last day on which T is obliged to attend school and will end on the Friday before school is due to commence in the next term (subject to the longer school holidays referred to above for which the period T will spend with his father ceases on the Wednesday before the recommencement of school).
9.
(a) T mother will pay for T’s travel to North Queensland for the first period T will spend with his father (the June/July or second term school holidays).
(b) T’s father will be responsible for the cost associated with T’s or his travel to spend time with each other except for one visit in each year when the mother will pay for T to travel to North Queensland. That visit will be for the end of first term school holidays, unless the parties otherwise agree.
10.
(a) The time that T spends with his father will occur at the father’s option either in North Queensland or in Melbourne, but if the time that the father spends with T is to occur somewhere substantially other than at the father’s ordinary place of residence then the father will advise the mother of where he and T will be for most of the time that they are together not later than one month in advance of the proposed period when they are together and provide a contact phone number.
(b) In addition, if the father is not proposing that T would spend the holiday period with him in North Queensland he will give the mother not less than one month’s written notice thereof.
11.
(a) T may telephone his father at any reasonable time and T’s father may telephone him on every Tuesday and Saturday between the hours of 6:30pm and 7:30pm, unless the parents otherwise agree.
(b) Nothing herein prevents the parents from agreeing to the father’s having other telephone contact initiated by him however, such calls to T shall not exceed (except in the case of emergencies) one call per day and will be made at reasonable times.
(c) When T is with his father T’s mother may ring him twice a week on Tuesdays and Saturdays between the hours of 6:30pm and 7:30pm, or at such other additional times as the parents may agree.
(d) If T is with his father T may ring his mother at any reasonable time.
(e) In every case the parents will respect T’s privacy and leave him alone during the telephone call.
(f) Neither parent will question T about the other parent during the course of telephone conversations except in the ordinary course of T’s reporting on his day-to-day activities.
(g) Each of the parents will do everything in his or her power to encourage T to have and continue telephone contact with the other parent.
(h) If the father is able to set up and establish appropriate telecommunications links then in substitution for telephone calls he may communicate with T via e-mail or via webcam. Unless the parents otherwise agree any video link connexions will be in substitution for the telephone calls referred to above and not in addition thereto.
12.
(a) The father may and should send to T materials relevant to his understanding and development of knowledge of the African culture.
(b) The mother will accept such material from the father and encourage T to read and use such materials and wherever possible promote with T an interest in his father’s cultural heritage.
13.
The father may send letters, presents and photographs to T but such letters, photographs and presents will be appropriate for T’s age and will not attempt to involve him in further matters of litigation or in reporting on his mother’s or Mr G’s activities.
14.
In accordance with the agreement of both parents and of Mr D, as trustee for an education fund for T, may make available at his discretion to T’s mother funds from time to time to assist T in his education from money held by him in trust.
15.
Pursuant to section 65DA(2) and section 62B, the particulars of the obligations these orders create and of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
AIRPORT WATCH LIST
16.
Until further order both parents, and their servants and agents be and are restrained from taking or sending or attempting to take or send the T from Australia.
17.
The Court requests that until further order the Australian Federal Police place T’s name on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of him from Australia in breach of these orders.
18.
Both parents will continue to leave deposited with the Court all of their passports (and any of T’s passports) and such passports may only be released by further order of this Court.
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
In determining what is in the child’s best interests s 60CC provides that (other than in considering whether to make an order by consent) the Court must consider the following matters in determining what is in the child’s best interests. 60CC(2) Primary considerations (1) The primary considerations are (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Act then prescribes a sequence of additional considerations to be taken into account, which I will deal with more particularly in due course. However, as my attention was drawn to the matter in her address by Ms Demack, I comment about s 60CC(4) which prescribes that the Court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibility as a parent, and in particular, the extent to which each of the child’s parents: (a) has taken, or failed to take, the opportunity:(i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and (b) has facilitated, or failed to facilitate, the other parent:(i) participating in making decisions about major long-term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and (c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child. Finally, s 60CC(4A) provides:If the child’s parents have separated, the court must, in applying subsection (4), have regard in particular, to events that have happened, and circumstances that have existed, since the separation occurred. The system under which the Act operates requires that I should first consider a presumption, which the Act imposes under s 61DA. This section reads:(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The Act then provides in s 61DA(2) that, The presumption does not apply if there are reasonable grounds to believe the parent of the child (or a person who lives with the parent of that child) has engaged in: (a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or (b) family violence. Then there are provisions about interim orders and s 61DA(4) provides:The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. I pause to say that the existence of presumption does not mean that the Court must necessarily operate from that position. Clearly, the Court may conclude, in the best interests of the child in any event, either that shared parental responsibility is appropriate, or alternatively, that it is not. However, the starting position would seem to be that presumption.