Nadig and Iyar - [2018] FCCA 709

FEDERAL CIRCUIT COURT OF AUSTRALIA

NADIG & IYAR

[2018] FCCA 709

Catchwords:
FAMILY LAW – Application for final parenting orders – child almost 5 years – parties consent to order for equal shared parental responsibility – Court’s obligation to consider child spending equal time – Court’s obligation to consider child spending substantial and significant time – whether reasonably practicable and in the child’s best interests – father seeks an order for week about – mother seeks an order for the child to live primarily with her – child has developmental delay – issue regarding school holidays – mother seeks an order permitting her to travel to India with the child – father opposes international travel to India – order made for child to live with the mother and spend substantial and significant time with the father including school holiday time – child to remain on the Airport Watchlist until 2023.

Legislation:

Family Law Act 1975, ss.60B (1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(2)(b), 60CC(3), 61DA (1), 61DA(2), 61DA(4), 65D, 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5), 65DAC

Cases cited:

Gin v Hing [2010] FamCA 617

Kaur & Kaur [2014] FCCA 2843
Line & Line (1997) FLC 92-729
Thomason & Malhotra [2010] FamCAFC 85
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286

Applicant:

MR NADIG

Respondent:

MS IYAR

File Number:

CAC 1222 of 2016

Judgment of:

Judge Tonkin

Hearing date:

26 February 2018

Date of Last Submission:

26 February 2018

Delivered at:

Canberra

Delivered on:

27 March 2018

REPRESENTATION

Counsel for the Applicant:

Self-Represented

Counsel for the Respondent:

Self-Represented

ORDERS

All previous orders are hereby discharged.
By consent the parties shall have equal shared parental responsibility for the child X born (omitted) 2013 (“the child”).
The child shall live with his mother.
The child shall spend time with his father as agreed between the parties and failing agreement:
(a)Week 1: Commencing March 30 2018 from Friday at the conclusion of preschool or school (or afterschool care) until the commencement of preschool or school (or before school care) on Tuesday and each alternate weekend thereafter; and
(b)Week 2: Commencing 4 April 2018 from Wednesday at the conclusion of preschool or school (or afterschool care) until the commencement of preschool or school (or before school care) on Thursday and each alternate week thereafter; and
(c)For half of all school holiday periods at the end of Terms 1, 2 and 3 with the father in the first half in the years ending in an odd number and for the second half in the years ending in zero or an even number; and
(d)Until December 2021 for half of the long Christmas summer holidays in a week about arrangement commencing on the Saturday immediately following the conclusion of the school year at 9.00 am for the first, third and fifth weeks of the school holiday period in the years ending in an odd number and for the second, fourth and sixth weeks of the school holiday period in the years ending…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nadig and Iyar

Details

AGLC: Nadig and Iyar [2018] FCCA 709
Case: [2018] FCCA 709
Decision Date: 27 March 2018

CaseChat Overview and Summary

This matter concerned an application by Mr Nadig and Ms Iyar regarding their child, X. The dispute centred on parenting arrangements, specifically the time X would spend with each parent and related issues. The decision was made by Judge Tonkin.

The court was required to determine the best interests of the child, X, in light of his developmental delays and the need for stability. Key issues included the appropriate parenting schedule, the practicalities of communication and travel between parents, and measures to prevent parental denigration and international child abduction. The court also considered the parents' respective capacities to meet X's emotional and educational needs, their attitudes towards their parental responsibilities, and the potential impact of parental conflict.

Judge Tonkin's reasoning was significantly influenced by the Family Consultant's report, which highlighted X's developmental delays and the importance of stability and security in his care arrangements. The court accepted the recommendation that X remain in his mother's primary care, with specific time allocations for the father designed to provide predictability and support X's developmental progress. The court also acknowledged the parents' capacity to provide for X's needs and their commitment to addressing his difficulties, noting the father's insight into the impact of parental conflict. Orders were made to facilitate communication between the parents, prevent denigration, and protect against international child abduction.

By consent, the parties were granted equal shared parental responsibility for X. X was ordered to live with his mother, with specific, detailed arrangements for his time with his father, including during school holidays and Christmas. Further orders addressed communication between the child and parents, interstate travel notification, the provision of contact details, notification of illness or injury, and the sharing of educational information. Crucially, both parents were restrained from removing X from the Commonwealth of Australia, and the Australian Federal Police were requested to place X on the Family Law Watchlist. Either party could apply for removal from the watchlist after May 2023, provided mediation had been attempted to resolve international travel disputes.

Orders

Orders of the court

All previous orders are hereby discharged.

By consent the parties shall have equal shared parental responsibility for the child X born (omitted) 2013 (“the child”).

The child shall live with his mother.

The child shall spend time with his father as agreed between the parties and failing agreement:

(a) Week 1: Commencing March 30 2018 from Friday at the conclusion of preschool or school (or afterschool care) until the commencement of preschool or school (or before school care) on Tuesday and each alternate weekend thereafter; and

(b) Week 2: Commencing 4 April 2018 from Wednesday at the conclusion of preschool or school (or afterschool care) until the commencement of preschool or school (or before school care) on Thursday and each alternate week thereafter; and

(c) For half of all school holiday periods at the end of Terms 1, 2 and 3 with the father in the first half in the years ending in an odd number and for the second half in the years ending in zero or an even number; and

(d) Until December 2021 for half of the long Christmas summer holidays in a week about arrangement commencing on the Saturday immediately following the conclusion of the school year at 9.00 am for the first, third and fifth weeks of the school holiday period in the years ending in an odd number and for the second, fourth and sixth weeks of the school holiday period in the years ending in zero or an even number; and

(e) Commencing in December 2021 for the first half of the long Christmas summer holidays in the years ending in an odd number and for the second half of the school holidays in years ending in zero or an even number.

(f) The first half of all school holidays periods shall commence at 9:00am on the first Saturday of such holidays.

(g) The second half of all school holidays periods shall commence at 9:00am on the mid Saturday of such holidays and conclude the day before the next school term commences in the event the children are with the father during that period.

(h) The Christmas/New Year end of term school holiday period as gazetted shall end at 4:00pm on the Saturday immediately preceding the new school term in the event the children are with the father in the second half of that holiday period.

(i) In the event that the father spends time with the child in the:

(i) first half of the school holidays his Week 2 time with the child shall resume on the Wednesday of the first week after school resumes; and

(ii) second half of the holiday period his Week 1 time with the child shall resume on the Friday of the first week after school resumes.

(j) Subject to order 5 hereof the child shall spend all other times with his mother.

Notwithstanding these orders the child shall spend time with the parties as follows:

(a) In years ending in an odd number from 11.00 am Christmas Eve until 11.00 am Christmas Day with his father and from 11.00 am Christmas Day until 11.00 am Boxing Day with his mother; and

(b) In years ending in zero and an even number from 11.00 am Christmas Eve until 11.00 am Christmas Day with his mother and from 11.00 am Christmas Day until 11.00 am Boxing Day with his father; and

(d) With his father from 6.00 pm on the day immediately preceding Father’s Day to 5.00 pm on Father’s Day;

(e) On the child’s birthday with each parent at times to be agreed but failing agreement:

(i) if the birthday does not fall on a school day from 12 noon to 3.30 pm with the parent he is currently not spending time with; and

(ii) if the birthday does fall on a school day from after school until 5.30 pm with the parent he is currently not spending time with.

The child shall communicate with the parties as follows:

(a) With the father when the child is spending time with the mother each Tuesday and Thursday evening between 7.00 pm and 7.15pm with the father to initiate such calls;

(b) With the mother when the child is spending time with the father each Tuesday and Thursday evening between 7.00 pm and 7.15pm with the mother to initiate such calls.

No later than three days prior to any interstate travel with the child, each party shall advise the other in writing of that party’s intention to travel and provide all contact and accommodation details for such travel.

The parties shall keep each other informed of their current residential address and contact telephone number with each party to notify the other of any change to this contact information within 48 hours of such change.

The parties shall keep each other informed of, and as soon as reasonably practicable, notify each other of any serious illness or injury sustained by the child during any time he is in the care of that parent, including any treatment required or received by the child together with the name and address of the treatment provider and/or location at which the child is hospitalised if applicable.

10.

Each party will ensure that both parties' details and contact information is provided to the child's school.

11.

Each party shall inform the other as soon as practicable of any significant health or educational issue that arises relating to the child.

12.

These orders authorise any school or preschool attended by the child to provide to each parent with copies of any information and/or report relevant to the child.

13.

Each party is restrained from denigrating the other party in the presence of the child and/or permitting any other person (including the maternal and paternal relatives) from denigrating the other party in the presence of the child or at all.

14.

The parties shall use a Communication Book that will be conveyed to the parent receiving the child on each occasion the child changes between his parents such Communication Book to include all relevant matters relating to the child in particular any health issues, any medication prescribed for the child, any attendance by the child at any medical or dental practitioner, any dietary or sleep issues for the child and any educational issues including any difficulties observed by either parent regarding the child’s speech, hearing, or other developmental progress.

15.

The parties MR NADIG born (omitted) 1978 and MS IYAR born (omitted) 1982 are hereby restrained by injunction from removing, permitting or attempting to remove or causing or permitting the removal of the child X born (omitted) 2013, male, from the Commonwealth of Australia.

16.

It is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders its removal.

17.

Either party is at liberty to apply for the removal of the child from the Airport Watchlist after 1 May 2023 for the purposes of travelling with the child internationally provided that the parties have attended mediation in an attempt to resolve any dispute regarding international travel.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The mother raised some criticism of the father regarding financial support suggesting his application for week about was centred around his desire to reduce child support. He disagreed. Currently the father pays child support as assessed. The amount is significant. He also provided for X’s needs whilst in his care.(d) The likely effect on the children of any changes in their circumstances including separation from a parent or any other child X has repeated pre - school and is currently developmentally behind his peers. The Family Consultant indicated that “the key consideration for X at this time are his developmental needs and capacity……given he is below the expected capabilities of a 4 year old ……… X should be provided with the stability and security of the structure of a primary care arrangement at this time with future decisions around this changing being influenced by his personal capacities and progress to achieving his developmental milestones as these are better known in the future.” The Family Consultant recommended that X remain in his mother’s primary care and spend time with his father from Friday to Tuesday on alternate weekends and from Wednesday to Thursday the following week. I consider such an arrangement to be in X’s best interests. I do not intend to make an order for time on Monday afternoons. In my view having regard to X’s current delays and the need for predictability and stability the recommendations for time with the father are in X’s best interests. I agree with the Family Consultant that X should commence spending school holidays with his father. This is likely to be an enjoyable time for X without the pressure of preschool and will provide him with an opportunity to enjoy a more relaxed time with his parents. (e) The practical difficulties and expense of the children spending time and communicating with each of their parents The parties live within fairly close proximity of each other so practical difficulties are not apparent save that the mother contends the parties’ communication could improve. Both parents have agreed to implement a Communication Book to enhance communication between them about X’s needs. (f) The capacity for the parties to provide for the children’s emotional and educational needs Both parents have demonstrated that they have the capacity to care for X emotionally and educationally. Both parents impressed as being child focused with the ability to prioritise X’s needs above their own. Both are committed to supporting X to the maximum extent with respect to his developmental delays and impressed with respect to their commitment to addressing X’s difficulties. I formed the view that the father displayed particular insight into the negative impact of parental conflict upon the child. (i) The attitude that each parent has demonstrated to the responsibilities of parenthood Both parents have embraced parenthood and the responsibilities that brings for each of them. The father has readily cared for X when ill at the mother’s request. (j) Family violence