FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAMA & DACE | [2019] FCCA 3733 |
| Catchwords: FAMILY LAW – Parenting – best interests of the child – competing applications for who the children should live with – who the children should spend time with – common application for shared parental responsibility – change of school – Father has child with new partner in Country A – significant change in Children’s lives – parties live in geographically disparate locations – whether passports should be issued for the children – Airport Watch List. |
| Legislation: Australian Passports Act 2005 (Cth), s.11 Evidence Act1995 (Cth), s.140 Family Law Act 1975 (Cth), Part VII, ss.11F, 60B, 60CA, 60CC, 61DA, 62G(2), 64B, 65D, 69ZW Hague Convention on the Civil Aspects of International Child Abduction |
| Cases cited: Bell & Nahos [2016] FamCAFC 244 Goode v Goode (2006) 36 Fam LR 422 Mazorski & Albright (2007) 37 FamLR 518 McCall & Clark (2009) FLC 93 U v U (2002) 211 CLR 238 Ulster & Viney [2016] FamCAFC 133 Waterford & Waterford [2013] FamCA 33 |
| Applicant: | MR RAMA |
| Respondent: | MS DACE |
| File Number: | MLC 126 of 2014 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing dates: | 3, 4 and 5 April 2018, 5 June 2018, 17 August 2018 and 29 November 2019 |
| Date of Last Submission: | 29 November 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 23 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Eidelson |
| Solicitors for the Applicant: | Ebejer & Associates |
| Solicitor Advocate for the Respondent: | Mr Ngwenya |
| Solicitors for the Respondent: | Kaprivi Legal |
| Counsel for the Independent Children's Lawyer: | Mr Ham |
| Solicitors for the Independent Children's Lawyer: | Macgregor Solicitors |
ORDERS
All previous parenting orders be discharged.
Parental Responsibility
The Applicant (Father) and the Respondent (Mother) have equal shared parental responsibility for the children W, born 2007, X, born 2009, Y, born 2012 and Z, born 2013 (Children).
Living Arrangements and the Time the Children Spend with the Father
The Children live with the Mother.
The Children spend time and communicate with the Father as follows:
During Term Time
(a)During school terms on the first weekend after the school term has commenced from 6.30 pm Friday until 6:00 pm Sunday and each alternate weekend thereafter.
During Holiday Time
(b)For each of the school term and the long summer holidays on a week about basis with:
(i)The Mother to have the first week of the school holidays in odd numbered years; and
(ii)The Father to have the first week of the school holidays in even numbered years.
Special Days
(c)On each of the Children’s birthdays, if they are not already spending time with the Father, from 4:00 pm to 7:00 pm.
(d)For Christmas 2019, commencing 11:00 am Christmas Day until 11:00 am 26 December 2019 and each alternate year thereafter.
(e)For Christmas 2020, commencing 11:00 am 24 December 2020 until 11:00 am Christmas Day and each alternate year thereafter.
(f)On Father’s Day, should the Children not already be spending time…
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- AGLC
- RAMA & DACE [2019] FCCA 3733
- Case
- [2019] FCCA 3733
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the most appropriate orders for the children's welfare, considering their best interests. This involved establishing a framework for equal shared parental responsibility, defining where the children would primarily live, and detailing the specific times they would spend with the Father, including during term time, holidays, and on special days. The court also needed to consider the children's education, the practicalities of changeovers between parents, ongoing communication protocols, and the necessity of imposing injunctions to protect the children from parental conflict and prevent their removal from Australia.
In its determination, the court discharged all previous parenting orders and made new orders establishing equal shared parental responsibility for the children. The children were ordered to live with the Mother, with specific provisions for the Father to spend time with them on alternate weekends during term time, and a week-about arrangement during school holidays. The orders also detailed arrangements for special days, including birthdays and Christmas, and stipulated communication methods. The court further made orders regarding the children's enrolment in specific schools and authorised the Father to obtain school reports. Injunctions were imposed restraining both parents from discussing the proceedings with the children or denigrating the other parent in their presence, and from removing the children from Australia without prior court order or written agreement.
Orders
Orders of the court
1.
All previous parenting orders be discharged.
Parental Responsibility
2.
The Applicant (Father) and the Respondent (Mother) have equal shared parental responsibility for the children W, born 2007, X, born 2009, Y, born 2012 and Z, born 2013 (Children).
Living Arrangements and the Time the Children Spend with the Father
3.
The Children live with the Mother.
4.
The Children spend time and communicate with the Father as follows:
During Term Time
(a) During school terms on the first weekend after the school term has commenced from 6.30 pm Friday until 6:00 pm Sunday and each alternate weekend thereafter.
During Holiday Time
(b) For each of the school term and the long summer holidays on a week about basis with:
(i) The Mother to have the first week of the school holidays in odd numbered years; and
(ii) The Father to have the first week of the school holidays in even numbered years.
Special Days
(c) On each of the Children’s birthdays, if they are not already spending time with the Father, from 4:00 pm to 7:00 pm.
(d) For Christmas 2019, commencing 11:00 am Christmas Day until 11:00 am 26 December 2019 and each alternate year thereafter.
(e) For Christmas 2020, commencing 11:00 am 24 December 2020 until 11:00 am Christmas Day and each alternate year thereafter.
(f) On Father’s Day, should the Children not already be spending time with the Father, from 10:00 am until 6:00 pm.
(g) On the Father’s birthday, should the Children not already be spending time with the Father, from 4:00 pm until 7:00 pm.
(h) By telephone at all reasonable times, with the Father to initiate the call to the Mother’s mobile phone and the Mother to facilitate the call.
(i) As otherwise agreed between the parties in writing, including SMS text message.
5.
The Father’s time with the Children provided for in Order 4(a) is suspended during the school holiday periods provided for in Order 4(b).
6.
The Father must give the Mother at least 24 hours’ notice in writing (SMS text message) if he does not intend to spend time with the Children in accordance with Orders 4(a) to (g).
7.
The Father’s time with the Children be suspended as follows:
(a) On Mother’s Day, should the Children not already be spending time with the Mother, from 10:00 am to 6:00 pm.
(b) On the Mother’s birthday, should the Children not already be spending time with the Mother, from 4:00 pm until 7:00 pm.
(c) For Christmas 2019, commencing 11:00 am 24 December 2019 until 11:00 am Christmas Day and each alternate year thereafter.
(d) For Christmas 2020, commencing 11:00 am Christmas Day until 11:00 am 26 December 2020 and each alternate year thereafter.
8.
When the Children are spending time with the Father, the Mother be at liberty to communicate with the Children by telephone or video call at all reasonable times and the Father shall do all things necessary to facilitate such communication.
Education
9.
The child W, born 2007 forthwith be enrolled at D School, Suburb G to commence year 7 in 2020.
10.
The following children forthwith be enrolled at J Primary School, Suburb K:
(a) X, born 2009, to commence grade 5 in 2020.
(b) Y, born 2012, to commence grade 3 in 2020.
(c) Z, born 2013 to commence grade 1 in 2020.
11.
The Father be authorised to request from the Principal of any school attended by the Children copies of school reports, newsletters, event notices, school photographs and the like at his respective cost. AND IT IS DIRECTED that either parent be at liberty to produce a copy of these Orders to the Children’s schools, by way of such authorisation.
12.
Both parties be at liberty to attend the Children’s school events including, but not limited to, parent teacher interviews and other events organised by the schools.
Changeovers
13.
The Father is to collect the Children from the Mother’s residence at the commencement of the time that the Father will spend with the Children and the Mother will collect the Children from the car park at Suburb G Shopping Centre at the conclusion of the Father’s time.
Communication
14.
The parents shall advise each other of any change of telephone number, including land line number, email address and residential address within 48 hours of such change occurring.
15.
Each parent shall inform the other as soon as practicable of any significant illness or injury requiring hospitalisation suffered by the Children or any of them that occurs whilst the Children are in their respective care, along with the names of any treating medical, dental or allied health professional so that each parent may liaise with the same.
Restraints on the Parents
16.
Each of the Mother and the Father are hereby restrained by injunction from:
(a) Discussing these proceedings with the Children or in the presence of or hearing of the Children or any of them individually.
(b) Denigrating, abusing, belittling, insulting, denigrating or rebuking the other parent in front of the Children or any of them individually within their presence or hearing.
(c) Knowingly allowing any third party to act in non-compliance with this Order.
17.
The parties, their servants and/or agents be restrained by injunction from removing or attempting to remove or causing or permitting the removal of the Children or any one of them from the Commonwealth of Australia without prior order of the Court or the prior written agreement of both the Mother and the Father and such agreement to be witnessed by a lawyer who at that time holds a current Australian Practicing Certificate.
18.
For the avoidance of doubt Orders 10, 11 and 12 of the Orders of this Court made on 3 August 2015 requesting the Australian Federal Police to place the names of the Children on the Airport Watch List, remain in full force and effect.
Miscellaneous
19.
All extant applications are otherwise dismissed.
20.
The Order of Judge Hartnett (as Her Honour then was), dated 3 August 2015 appointing the Independent Children’s Lawyer be discharged.
21.
Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
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 Annexure A and these particulars are included in these orders.
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
The parties separated in 2013 when the Mother was 9 months pregnant with Z. The circumstances leading to the final separation involved the parties arguing over the Mother’s allegations concerning the Father’s Affair. The police were called and they suggested that the Father leave the Suburb N Property to calm the situation, which he did. The Mother then left the Suburb N Property with the X, W and Y and went to live in a refuge (Final Separation). At that time X was aged 6, X was aged 4 and Y was aged 1. Z was born nine days after the Final Separation in 2013. The Father did not see the Children again until 30 August 2014[15]. [15] First Family Report, at [1]. In 2014 the Father travelled to Country B, Country A and Country L and did not return until the end of April 2015[16].[16] Mother’s Affidavit, filed 30.5.15, at [17]. On 22 December 2015 Orders were made, at the request of the Mother for the Children to live with the Father, as the Mother said that she was suffering from stress. At the time the Children went to live with the Father at the Suburb N Property W was aged 9, X aged 7, Y aged 4 and Z aged 2. The Father went to Country L again in 2016 and returned on 20 February 2017. During this time the Mother looked after the Children and they all stayed with the Mother’s cousin in Suburb O[17]. [17] Father’s Affidavit, filed 30.6.17, at [52]. This proceeding was commenced by the Father on 9 January 2014 when he filed an Initiating Application (Initiating Application) and an affidavit in support of the Initiating Application[18] (Father’s December 2013 Affidavit). The Initiating Application sought interim orders for:[18] Father’s Affidavit, filed 9.1.14.a) A Commonwealth Location Order requiring Centrelink to provide information in relation to the address at which the Mother and the Children may be located and that pursuant to s. 67N(2) of the Family Law Act (Act) this information may be provided to the Father’s solicitors.b)The Children live with the Mother.c)The Father spend time with W, X and Y as follows:i)Each Wednesday from after school (or 4:00 pm if a non-school day);ii)Each alternate weekend from 5:00 pm Friday until 6:00 pm Sunday;iii)At such other times as agreed between the parties in writing including SMS text message.d)The Father spend time with Z at such times as considered appropriate by the Court.e) The Children be independently represented.f)The Mother to attend upon a psychologist nominated by the independent children’s lawyer.g)The parties and the Children pursuant to s.62G of the Act to attend upon a Family Consultant for the purposes of the preparation of a Family Report.h)The Mother and the Father keep each other notified in relation to their respective telephone numbers, addresses and email addresses and notify one another in writing of any change within 48 hours of any change.i)The Mother and the Father to have reasonable communication with the Children by telephone, email, SMS text messages and electronic means during times they are living with or spending time with the other parent. j)The Mother and the Father to keep each other notified in relation to:i) Any medical emergency or serious health issues affecting the Children whilst in their care;ii) The full name and contact details of any medical practitioner or other health professional that the Children attend whilst in their care and authorise such practitioner to communicate with and provide information to the other parent.k)The Mother and the Father to be permitted to attend any school or extra-curricular activities to which a parent would normally be invited to attend, including but not limited to parent-teacher interviews, concerts and sporting events and to receive all school newsletters, notices and school photographs (at their own expense).