FAMILY COURT OF AUSTRALIA
| PAPP & MYERS | [2020] FamCA 127 |
| FAMILY LAW – CHILD – Relocation – one child of a brief relationship – where the parents were not married or in a de facto relationship – where the mother moved to a town during her pregnancy and the early years of the child’s life – where the father did not have a relationship with the child for the first 16 to 17 months of the child’s life – where there is no dispute that the mother is the primary carer – where the mother returned to Sydney – where the child developed a secure attachment to the father –where the mother has unilaterally relocated back to the town – where there is about 670 kilometres between residences of the parents – where the father is in a stronger financial position – where the mother was an unreliable witness – where the father seeks an order that the child live with him – where the father does not seek a coercive order for the mother to return to Sydney – best interests of the child – where the COVID-19 pandemic broke before judgment was delivered – where parties were ordered to provide further written submissions in respect of the impact of the pandemic – where orders are made for the child to live with the mother – where orders are made for the child to spend substantial and significant time with the father. |
| Evidence Act 1995 (Cth) s 144 Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 62B, 65D, 65DA, 65DAA, 65DAB, 65DAC |
| Adamson & Adamson (2014) FLC 93–62 AMS v AIF (1999) 199 CLR 160 Banks & Banks (2015) FLC 93-637 Blaze & Anor & Grady & Anor (2015) 54 Fam LR 172 CDJ v VAJ (1998) 197 CLR 172 Chamness v Hanson (2009) FLC 93-407 Cox v Pedrana (2013) FLC 93–537 Fitzroy v Fitzroy [2009] FamCA 954 Fitzwater & Fitzwater (2019) 60 Fam LR 212 Franklyn & Franklyn [2019] FamCAFC 256 Godfrey & Sanders [2007] FamCA 102 In the marriage of A (1998) FLC 92-800 Jollie & Dysart [2014] FamCAFC 149 Kardos & Harmon [2020] FamCA 328 M & S (2007) FLC 93-313 Maldera & Orbel (2014) FLC 93-602 Mazorski v Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Morgan & Miles (2007) FLC 93-343 MRR v GR (2010) 240 CLR 461 Papp & Myers (No. 2) [2019] FamCA 825 R & C (unreported, Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, 25 June 1993) Ribeiro v Wright 2020 ONSC 1829; [2020] CarswellOnt 4090 Sayer v Radcliffe (2012) 48 Fam LR 298 Sigley & Evor (2011) 44 Fam LR 439 Tibb & Sheean (2018) 58 FamLR 351 U v U (2002) 211 CLR 238 Vallans & Vallans (2019) 60 Fam LR 193 Zahawi & Rayne [2016] FamCAFC 90 |
| APPLICANT: | Mr Papp |
| RESPONDENT: | Ms Myers |
| INDEPENDENT CHILDREN’S LAWYER: | JLM Family Lawyers |
| FILE NUMBER: | SYC | 5372 | of | 2018 |
| DATE DELIVERED: | 22 May… |
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- AGLC
- Papp & Myers [2020] FamCA 127
- Case
- [2020] FamCA 127
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific orders for equal shared parental responsibility, the child's living arrangements, and the detailed schedule for the child to spend time with each parent. This included establishing protocols for communication, travel, and the resolution of future disputes or variations to the orders, as well as addressing specific considerations arising from the COVID-19 pandemic.
Harper J made orders establishing equal shared parental responsibility for major long-term decisions concerning the child's care, welfare, and development. The child was ordered to live with the mother, with detailed provisions outlining the time the child would spend with the father, progressively increasing from weekends to longer periods, including during school terms and holidays. The orders also stipulated specific arrangements for special occasions, long weekends, birthdays, and established protocols for electronic communication between the parents and the child. Further orders addressed travel, extracurricular activities, information sharing, non-denigration, and the process for dispute resolution and variations, including mandatory counselling or mediation. The orders also included specific provisions for compliance with government directions related to the COVID-19 pandemic.
Orders
Orders of the court
1.
That from 1 June 2020 all previous Orders be discharged and the following orders shall commence operation.
2.
That MR PAPP (“the father”) and MS MYERS (“the mother”) (collectively known as “the parties”) have equal shared parental responsibility for all major long-term decisions concerning the care, welfare and development of X born 2015 (referred to as “the child”), including but not limited to:
(a) education, including choice of schooling;
(b) religious and cultural upbringing;
(c) health and medical issues; and
(d) changes to the child’s living arrangements that make it significantly more difficult for the child to live with or spend time with the other parent.
3.
Each party has responsibility for making decisions for the child that are not major or long-term decisions during the periods in which the child is living or spending time with that party.
4.
The child live with the mother.
Time with the father
5.
Unless otherwise agreed between the parties in writing, the child spend time with the father as follows:
(a) Commencing from 1 June 2020 until the child commences school in 2021:
(i) From Saturday morning until Sunday evening on the second and fourth weekend of each month for two (2) consecutive months to commence on the second weekend of June 2020;
(ii) Thereafter, from Saturday morning until Monday afternoon on the second weekend and fourth weekend of each month for two (2) consecutive months;
(iii) Thereafter, from Friday morning to Tuesday afternoon on the second weekend and fourth weekend of each month for two (2) consecutive months; and
(iv) Thereafter, from Friday morning to Wednesday afternoon on the second weekend of each month.
(b) From 2:00 pm on Christmas Day, 25 December 2020 to Tuesday morning on 29 December 2020 at a time agreed between the parties, or in the absence of agreement as nominated by the father.
6.
For the purposes of Order 5(a):
(a) Subject to Order 6(b), the child’s time with the father shall occur in the immediate area of Town B or the Gold Coast; and
(b) if the father gives the mother no less than 7 days’ notice, at his discretion, that he wishes to spend time with the child on the second weekend of each month in Sydney, the child’s time with the father shall occur in Sydney.
School Term
7.
Unless otherwise agreed between the parties in writing, upon the child commencing school in 2021, during school terms the child shall spend time with the father on the second and fourth weekend of each month from after school on Friday afternoon until Sunday before 5:00 pm, in the immediate area of Town B or the Gold Coast at the sole discretion of the father.
8.
Notwithstanding Order 7, on no less than four weekends during term time each calendar year the child shall spend time with the father in Sydney, as agreed between the parties, and in the absence of agreement, as nominated by the father with no less than 21 days’ notice, with such nomination to coincide with a weekend of the father’s time specified in Order 7.
School Holidays
9.
Unless otherwise agreed between the parties in writing, upon the child commencing school in 2021:
(a) during the school term holiday periods, the child shall spend time with the father from the end of school on the last day that the child is required to attend school until the afternoon of the second Wednesday of the school term holiday period, at a time to be agreed between the parties and in the absence of agreement at a time nominated by the father; and
(b) during Christmas holidays:
(i) In 2021 and all odd-numbered years thereafter, the child is to spend time with the father from the afternoon of the last day the child is required to attend school for term four, until the middle day of the Christmas school holiday period; and
(ii) In 2022 and all even-numbered years thereafter, the child is to spend time with the father from the middle day of the Christmas school holiday day period until the afternoon of the day before the commencement of term 1 of the school terms the following year.
Special Occasions and Long Weekends
10.
Notwithstanding any other order, the child shall spend time with the parties on special occasions and long weekends as follows, unless otherwise agreed between the parties in writing:
(a) Upon the child commencing school, the child spend time with the father from Friday afternoon to Monday afternoon on the Queen’s Birthday and Labour Day long weekend in each year where that weekend does not fall in the school term holiday period.
(b) For Easter:
(i) In 2021 and all odd-numbered years thereafter, if the child is not already spending time with the father, the child is to spend time with the father from 10:00 am Good Friday until 10:00 am Easter Sunday; and
(ii) In 2021 and all odd-numbered years thereafter, if the child is not already in the care of the mother, the child is to spend time with the mother from 10:00 am Easter Sunday until 10:00 am Easter Tuesday (or at the commencement of school on the Tuesday after Easter);
(iii) In 2022 and all even-numbered years thereafter, if the child is not already in the care of the mother, the child is to spend time with the mother from 10:00 am Good Friday until 10:00 am Easter Sunday; and
(iv) In 2022 and all even-numbered years thereafter, if the child is not already spending time with the father, the child is to spend time with the father from 10:00 am Easter Sunday until 10:00 am Easter Tuesday (or at the commencement of school on the Tuesday after Easter).
11.
Mother’s Day and Father’s Day:
(a) If the child is not otherwise scheduled to spend time with the mother on Mother's Day, the parties will otherwise take all necessary steps to ensure that the child will spend time with the mother for a six (6) hour block on the Mother’s Day weekend; and
(b) If the child is not otherwise scheduled to spend time with the father on Father's Day, the parties will otherwise take all necessary steps to ensure that the child will spend time with the father for a six (6) hour block on the Father’s Day weekend.
12.
The father’s birthday:
(a) If the father’s birthday falls on a weekend that the child would otherwise be in the mother’s care in accordance with these orders, at the father’s discretion, the child shall spend time with the father for a six (6) hour block as elected by the father on the father’s birthday in the immediate area of Town B or the Gold Coast.
(b) If the father’s birthday falls on a weekday, notwithstanding any other order, at the father’s discretion, the child shall spend time with the father for a six (6) hour block as elected by the father in the immediate area of Town B or the Gold Coast the Sunday immediately after his birthday.
13.
If the mother’s birthday falls on a weekend on which the child would otherwise be in the father’s care in accordance with these orders, at the mother’s discretion the child shall spend time with the mother for a six (6) hour block as elected by the mother, in in the immediate area of Town B.
14.
The child’s birthday:
(a) If the child’s birthday falls on a weekend in which the child would otherwise be in the mother’s care in accordance with these orders, at the father’s discretion, the child shall spend time with the father as agreed in writing by the parties, or absent agreement, for a four (4) hour block of time as elected by the father in the immediate area of Town B.
(b) If the child’s birthday falls on a weekend in which the child would otherwise be in the father’s care in accordance with these orders, at the mother’s discretion, the child shall spend time with the mother as agreed in writing by the parties, or absent agreement, for a four (4) hour block of time as elected by the mother.
(c) If the child’s birthday falls on a weekday in which the child would otherwise be in the mother’s care in accordance with these orders, at the father’s discretion, if the child would not otherwise be spending time with the father in accordance with these order, the child shall spend time with the father as agreed in writing by the parties, or absent agreement, for a four (4) hour block of time the following weekend as nominated by the father in the immediate area of Town B.
COVID-19
15.
At all times, both parties shall take all necessary steps to comply with any state and federal government orders and directions made by reason of the COVID-19 pandemic, including maintaining appropriate social distancing guidelines.
16.
Without prejudice, the father may at any time determine at his sole discretion that by reason of the COVID-19 pandemic, including government restrictions, he is unable to spend any time with child specified in these Orders.
17.
In addition to any statutory obligations for consultation to reach consensus about major long-term issues in relation to the child, both parties shall use their best endeavours to communicate regularly by phone, text message, email or other means, to seek agreement on the management of issues affecting the child arising from the COVID-19 pandemic.
Changeover
18.
That, unless otherwise agreed between the parties in writing, changeovers shall occur as follows:
(a) That, prior to the child commencing school, for the purpose of Orders herein where it is specified that the father’s time with the child is to occur in the immediate area of Town B or the Gold Coast, changeover shall occur by way of the father collecting and returning the child from and to the mother’s residence at a time agreed between the parties, or in the absence of agreement as nominated by the father;
(b) That the purpose of Order 5(b) changeover shall occur by way of the father collecting and returning the child from and to the mother’s residence;
(c) That for the purpose of Order 6(b) herein, in the event the father gives notice for his time with the child to take place in Sydney in accordance with Order 6(b), changeover shall occur by way of the mother causing the child to be delivered to the father, and collected from the father, at Sydney Airport at the mother’s expense at a time agreed between the parties, or in the absence of agreement at a time nominated by the mother, or at such other time and place as the parties may agree in writing;
(d) Upon the child commencing school, unless otherwise agreed between the parties in writing, during school terms:
(i) when the father’s time is to take place in the immediate area of Town B or the Gold Coast:
(a) if his time commences or concludes on a school day, changeover shall take place at the child’s school;
(b) For the purpose of Order 7 the father shall deliver the child to the mother’s residence at the conclusion of his time;
(c) if his time does not commence or conclude on a school day, changeover shall take place at Town A Airport or at a location in the immediate area of Town B or the Gold Coast nominated by the father at his sole discretion, at a time agreed between the parties, or in the absence of agreement, at a time nominated by the father. For the avoidance of doubt, each party is to pay their own expense to travel to Town A Airport or such other location nominated by the father.
(ii) when the father’s time is to take place in Sydney, changeover shall occur by way of the mother causing the child to be delivered to the father, and collected from the father, at Sydney Airport at the mother’s expense at a time agreed between the parties, or in the absence of agreement at a time nominated by the mother, or at such other time and place as the parties may agree in writing.
(e) Upon the child commencing school, unless otherwise agreed between the parties in writing, during school holidays:
(i) where the father’s time commences or concludes on a school day, changeover shall take place at the child’s school; and
(ii) where the father’s time does not commence or conclude on a school day changeover shall take place at Town A Airport or at a location in the immediate area of Town B or the Gold Coast as nominated by the father in his sole discretion, at a time agreed between the parties, or in the absence of agreement, at a time nominated by the father.
Electronic Communication
19.
The father communicate by Facetime, Skype or voice calls with the child when the child is in the mother’s care pursuant to these Orders as follows:
(a) Each Monday, Wednesday and Friday from 7:00 pm to 7:30 pm;
(b) On the child’s birthday from 7:00 pm to 7:30 pm;
(c) On the father’s birthday from 7:00 pm to 7:30 pm; and
(d) On Christmas Day from 9:00 am to 9:30 am.
20.
The mother communicate by Facetime, Skype or voice calls with the child when the child is in the father’s care pursuant to these Orders as follows:
(a) Each Sunday 7:00 pm to 7:30 pm;
(b) On the child’s birthday from 7:00 pm to 7:30 pm;
(c) On the mother’s birthday from 7:00 pm to 7:30 pm; and
(d) On Christmas Day from 9:00 am to 9:30 am.
21.
In the event the child is unable to spend time with either parent as a result of any government restrictions, the parent with whom the child was meant to spend time with shall be at liberty to speak with the child on two occasions per day between 9:00 am and 11:00 am and 4:00 pm and 8:00 pm using Facetime, Skype or voice calls.
Parenting Program
22.
That within three (3) months from the date of these Orders (or otherwise the first available opening), the mother shall complete the program known as “Parenting After Separation” program pursuant to her current enrolment and upon completion, the mother is to provide to the father with a copy of her completion certificate by email.
Travel
23.
Neither party shall remove the child from the Commonwealth of Australia without having first obtained the consent of the other parent in writing.
24.
That, subject to any state or federal government restrictions, the mother and father shall be at liberty to travel domestically or internationally with the child for the purpose of a holiday during their time with the child in accordance with these Orders, or at such other times that the parties may agree in writing, provided that the following occurs:
(a) the party proposing to travel with the child shall give the other party at least eight (8) weeks’ notice in writing of their intention to travel with the child, which shall include the proposed destination and dates;
(b) the party proposing to travel with the child shall give the other party with copies of all confirmed airline bookings, detailed itinerary including accommodation details and dates, and contact numbers for the child for the duration of the holiday; and
(c) the child’s passport is to be retained in the first instance by the mother and thereafter by the party who last travelled with the child and the party who holds the child’s passport is to provide such passport to the travelling party if required two (2) weeks prior to any international travel with the child after compliance with Orders 24(a) and (b) herein.
25.
Both parties will as soon as practicable do all things necessary to apply for and thereafter renew the child’s Australian Passport from time to time and shall not unreasonably withhold consent for such renewal. Each party shall pay one half of the cost associated with the issuing and renewal of the child’s Australian Passport.
Other Orders
26.
That each party, to the best of their ability, is to do all things necessary to ensure that while in their respective care, the child shall attend any extracurricular, sporting or cultural activities in which he may be participating from time to time including any training or tuition relating to that activity, and both parents are at liberty to attend such activity as a spectator if the activity allows such attendance.
27.
Except with the written consent of the other parent both the mother and father are restrained from enrolling the child into any extracurricular activity which is to take place at a time when the child is to spend with the other parent pursuant to these Orders.
Information
28.
Both parties shall keep the other informed as to their respective residential addresses and contact numbers at all times. If either party plans to change their residential address, that party shall give the other party at least twenty-one (21) days’ written notice of such intention and details of the proposed new address and accommodation.
29.
Each of the mother and the father shall provide the other with information as soon as practicable upon the happening of the following:
(a) events related to the general health of the child including but not limited to medical appointments, tests results, progress reports (notice of appointments to be provided as soon as practicable following the making of such appointments); and
(b) matters related to the child’s education including but not limited to parent/teacher interviews, disciplinary matters, achievements, awards, concerts and special events, sports days, newsletters and notices.
30.
Each parent shall inform the other immediately or if not possible, three (3) hours upon the happening of any medical emergency involving the child including but not limited to serious illness, accident or hospitalisation.
31.
The parties will in a timely manner:
(a) provide a copy of these Orders to any school which the child may from time to time attend and authorise same to provide particulars to the other party of the child’s welfare, progress at school, education, special needs of the child, details of upcoming functions or activities and to provide copies of school reports and like information.
(b) provide to the other parent copies of all notices received from the school and details of any social, school or religious functions which the child is to attend.
Non-denigration
32.
Each party is hereby restrained from:
(a) denigrating the other parent within the presence or hearing of the child or causing any other person with whom they reside to denigrate the other parent within the presence or hearing of the child.
(b) discussing with the child or with any other person in the child’s presence details of these proceedings.
(c) discussing the implementation and mechanisms of these Orders with the child. All organisation and planning in relation to the child must be made between the parties.
Disputes or Variations
33.
The process to be used for resolving disputes about the interpretation, implementation or enforcement of these Orders shall be as follows:
(a) The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) (“the Act”) or by the Commonwealth Attorney General; or
(b) The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
34.
Before an application is made to a court for a variation of these orders to take account of the changing needs or circumstances of the child or of the mother or the father:
(a) The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney General; or
(b) The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
35.
Pursuant to sections 65DA(2) and 62B of the Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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