FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Maddocks & Sachdev [2024] FedCFamC2F 567
File number(s): PAC 305 of 2023 Judgment of: JUDGE NEWBRUN Date of judgment: 7 May 2024 Catchwords: FAMILY LAW – PARENTING – Best interests of child. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: Saif & Saif [2020] FamCA 119 Division: Division 2 Family Law Number of paragraphs: 94 Date of hearing: 15 – 18 April 2024 Place: Parramatta Counsel for the Applicant: Mr Cairns Solicitor for the Applicant: Derham Houston Lawyers Counsel for the Respondent: Ms Wallace Solicitor for the Respondent: Nolan Lawyers Counsel for the Independent Children's Lawyer: Mr Hill Solicitor for the Independent Children's Lawyer: Gonzalez & Co ORDERS
PAC 305 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MADDOCKS
Applicant
AND: MS SACHDEV
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
7 MAY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.That all previous parenting orders are discharged.
2.That the mother has sole parental responsibility for the child, X born in 2021 (herein referred to as “the child”) and in exercising sole parental responsibility the mother shall;
2.1.Until the child commences primary school;
2.1.1.Notify the father by text message no less than 48 hours or at the earliest possible time prior to making any non-urgent major long-term decisions concerning the child;
2.1.2.The mother shall take into account any views expressed by the father in relation to her proposed decision, provided such views are expressed in a timely manner; and
2.1.3.Provide the father with her final decision by text message
2.2. Upon the child commencing primary school;
2.2.1.Notify the father by text message no less than fourteen (14) days or at the earliest possible time prior to making any non-urgent major long-term decisions concerning the child;
2.2.2.The mother shall take into account any views expressed by the father in relation to her proposed decision, provided such views are expressed in a timely manner; and
2.2.3.Provide the father with her final decision by text message
3.That the child live with the mother.
4.That the father spend time with the child as follows;
4.1. For a period of 3 months;
4.1.1.Each Saturday from 2.00 pm until 6.00 pm; and
4.1.2.Each Sunday from 9.00 am until 2.00 pm;
4.2.Upon the completion of Order 4.1, then for a period of 3 months;
4.2.1.Each Saturday from 9.00 am until 6.00 pm; and
4.2.2.Each Sunday from 9.00 am until 2.00 pm;
4.3.Upon the completion of Order 4.2, then for a period of 3 months;
4.3.1.Each alternate weekend from 9.00 am Saturday until 2.00 pm Sunday
4.4.Upon the completion of Order 4.3, then for a period of 3 months;
4.4.1.Each alternate weekend from 5.00 pm Friday until 2.00 pm Sunday
4.5.Upon the completion of Order 4.4, then for a period of 3 months;
4.5.1.Each alternate weekend from 5.00 pm Friday until 6.00 pm Sunday
4.6.Upon completion of Order 4.5;
4.6.1.Each alternate weekend from…
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CaseChat Overview and Summary
The legal issues encompassed the determination of sole parental responsibility, the visitation schedule for the father, the notification requirements for major decisions, and the conditions for overseas travel with the child. The court needed to balance the child's need for stability and continuity with the father's right to maintain a meaningful relationship with the child. The court also had to ensure that both parents could effectively participate in the child's life and wellbeing.
The court found that the mother should have sole parental responsibility for the child, given her capacity to provide a stable environment and meet the child's needs. The court ordered that the mother must notify the father of any non-urgent major long-term decisions concerning the child and consider his views. The visitation schedule for the father was structured to gradually increase his time with the child, starting with specific periods each week and evolving to alternate weekends. Special occasions for visitation were also specified. The court mandated that the father's visitation be suspended during certain holidays and special events. The court also detailed the communication protocols between the parents and outlined the conditions for overseas travel with the child, ensuring both parents could participate in such travel once the child began primary school. Finally, the court addressed the child's name change and the holding of the child's passport.
The final orders discharged previous parenting orders, granted sole parental responsibility to the mother, set out the visitation schedule for the father, specified communication protocols, and detailed conditions for overseas travel. The court's decision emphasised the importance of maintaining a balance between the child's need for stability and the father's involvement in the child's life.
Orders
Orders of the court
PAC 305 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MADDOCKS
Applicant
AND:
MS SACHDEV
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
7 MAY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1. That all previous parenting orders are discharged.
2. That the mother has sole parental responsibility for the child, X born in 2021 (herein referred to as “the child”) and in exercising sole parental responsibility the mother shall;
2.1. Until the child commences primary school;
2.1.1. Notify the father by text message no less than 48 hours or at the earliest possible time prior to making any non-urgent major long-term decisions concerning the child;
2.1.2. The mother shall take into account any views expressed by the father in relation to her proposed decision, provided such views are expressed in a timely manner; and
2.1.3. Provide the father with her final decision by text message
2.2. Upon the child commencing primary school;
2.2.1. Notify the father by text message no less than fourteen (14) days or at the earliest possible time prior to making any non-urgent major long-term decisions concerning the child;
2.2.2. The mother shall take into account any views expressed by the father in relation to her proposed decision, provided such views are expressed in a timely manner; and
2.2.3. Provide the father with her final decision by text message
3. That the child live with the mother.
4. That the father spend time with the child as follows;
4.1. For a period of 3 months;
4.1.1. Each Saturday from 2.00 pm until 6.00 pm; and
4.1.2. Each Sunday from 9.00 am until 2.00 pm;
4.2. Upon the completion of Order 4.1, then for a period of 3 months;
4.2.1. Each Saturday from 9.00 am until 6.00 pm; and
4.2.2. Each Sunday from 9.00 am until 2.00 pm;
4.3. Upon the completion of Order 4.2, then for a period of 3 months;
4.3.1. Each alternate weekend from 9.00 am Saturday until 2.00 pm Sunday
4.4. Upon the completion of Order 4.3, then for a period of 3 months;
4.4.1. Each alternate weekend from 5.00 pm Friday until 2.00 pm Sunday
4.5. Upon the completion of Order 4.4, then for a period of 3 months;
4.5.1. Each alternate weekend from 5.00 pm Friday until 6.00 pm Sunday
4.6. Upon completion of Order 4.5;
4.6.1. Each alternate weekend from 3.00 pm or the conclusion of school Friday until 9.00 am or the commencement of school Monday
5. That upon the father’s time commencing as per Order 4.3, the father shall also spend time with the child for the following special occasions;
5.1. For the purposes of Christmas, on Christmas Eve from 12 noon until 12 noon on Christmas Day in even numbered years and from 12 noon on Christmas Day until 12 noon on Boxing Day in odd numbered years.
5.2. For a period of 3 hours on the child’s birthday as agreed between the parties but failing agreement from 3.00 pm until 6.00 pm;
5.3. On Father’s Day from 9.00 am until 5.00 pm;
5.4. For the purposes of Easter, from 9am on Good Friday until 5pm Easter Saturday in odd numbered years and from 5pm Easter Saturday until 5pm Easter Sunday in even numbered years.
5.5. At any other times as agreed between the mother and father in writing
6. That the father’s time with the child be suspended as follows;
6.1. For the purposes of Christmas, on Christmas Eve from 12 noon until 12 noon on Christmas Day in odd numbered years and from 12 noon on Christmas Day until 12 noon on Boxing Day in even numbered years;
6.2. For the purposes of Easter, from 9.00 am on Good Friday until 5.00 pm Easter Saturday in even numbered years and from 5.00 pm Easter Saturday until 5.00 pm Easter Sunday in odd numbered years;
6.3. For the purposes of Mother’s Day from 9.00 am until 5.00 pm;
6.4. For a period of 3 hours on the children’s birthday as agreed between the parties but failing agreement from 3.00 pm until 6.00 pm
6.5. At any other times as agreed between the mother and father in writing
7. That upon the child commencing Year 1 at Primary School, the father shall also spend time with the child as follows;
7.1. For the NSW school holiday period following terms 1, 2 and 3 for one half as agreed between the parties but failing agreement for the first half in odd numbered years and for the second half in even numbered years;
7.2. For the NSW school holiday period following term 4 as agreed between the parties but failing agreement for week 1,3 and 5 in odd numbered years and week 2, 4 and 6 in even numbered years
8. That changeovers that do not take place at school take place at B Park, Suburb C.
9. That upon the child commencing Year 1 in Primary School, the father’s time is suspended as follows;
9.1. For the NSW school holiday period following terms 1, 2 and 3 for one half as agreed between the parties but failing agreement for the first half in odd numbered years and for the second half in even numbered years
9.2. For the NSW school holiday period following term 4 as agreed between the parties but failing agreement for week 1, 3 and 5 in odd numbered years and week 2, 4 and 6 in even numbered years
10. The parties shall ensure that the other is kept informed of the following information in relation to the children:
10.1. Any serious medical problems or severe illnesses suffered by the children whilst they are in their care including any hospitalisation;
10.2. Any medication that has been prescribed to the children, and the reason for such medication;
10.3. Any treatment that is required to be undertaken for the children;
10.4. Any social, school or religious function that the children is to attend from time to time;
10.5. The residential address and telephone contact details of the parties and any changes to such details within 24 hours, and the particulars of any other person who may reside in the same home as the children from time to time; and
10.6. Any other matter relevant to the children’s welfare.
11. That the mother shall forthwith provide the father with the details of all of the child’s current treating medical professionals, and any current reports from such professionals.
12. That these orders act as authority for each parent to communicate with the child’s medical professionals, and each parent to be provided with any communications and reports relating to the child from such professionals.
13. For the purposes of communicating information between the parties, parties shall;
13.1. Communicate by telephone in regards to matters of an urgent nature; and
13.2. Otherwise, communicate by text message about the day-to-day matters including arrangements for each party to spend time with the children
14. That each party refrain from making critical or derogatory remarks in relation to the other parties in the presence or hearing of the child and that each party shall do all things necessary to ensure that no third party makes any such critical or derogatory remarks about the other parties in the presence or hearing of the child.
15. Pursuant to Section 65Y(1)(c)(ii) of the Family Law Act 1975 (Cth) the mother and the father be permitted to travel overseas with the child, upon the child commencing Year 1 of Primary School, during any period of time the child is to spend with each party pursuant to these Orders, provided that:
15.1. The travelling parent provide the non-travelling parent with six (6) weeks' notice in writing of their intention to travel internationally with the child; and
15.2. The travelling parent provide the non-travelling parent with a full itinerary of the proposed travel, including details of return flights, transfer, accommodation and contact details for the child not less than two (2) weeks prior to departure; and
15.3. Such travel will not interfere with the non-travelling parent's time with the child in accordance with these Orders unless agreed in writing between the parties; and
15.4. The travelling parent provide the non-travelling parent details of the telephone number/s on which the child can be contacted.
16. The child's Australian passport to be held by the mother at all times that they are not being used by the parties or as otherwise provided for by these orders.
17. To facilitate travel by the parties with the child pursuant to Order 15 the parties will ensure that the passport they hold will be delivered to the travelling parent no later than forty-eight (48) hours prior to travel and returned within forty-eight (48) hours of their return from overseas.
18. The mother is permitted to do all acts and things as may be necessary to change the child’s name from X Maddocks to X Sachdev-Maddocks.
19. The father’s requirement to sign any documentation normally required to give effect to the alteration of the child’s name be dispensed with.
20. The mother shall be responsible for all costs associated with a change of name.
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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