FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Santek & Lisica [2023] FedCFamC2F 272
File number(s): ADC 4750 of 2018 Judgment of: JUDGE PARKER Date of judgment: 15 March 2023 Catchwords: FAMILY LAW – PARENTING – time between Father and child - where Mother and child reside in Adelaide and Father resides in Sydney – where child exhibits anxiety associated with time with Father – where family report writer recommends a cautious approach – time ordered in accordance with proposal for careful build up of overnight time and time in Sydney Legislation: Family Law Act 1975 (Cth), ss 4AB, 60B, 60CA, 60CC, 65DAA
Evidence Act 1995 (Cth), s 140
Cases cited: Doherty & Doherty [2016] FamCAFC 182
French & Fetala [2014] FamCAFC 57
Jacks & Samson [2008] FamCAFC 173; (2008) FLC ¶93-387
L & T [1999] FamCA 1699; (1999) FLC ¶92-875
Mazorski & Albright [2007] FamCA 52
McCall & Clark [2009] FamCAFC 92; (2009) FLC ¶93-405
Oberlin & Infeld [2021] FamCAFC 66; (2021) FLC ¶94-017
Sigley & Evor [2011] FamCAFC 22
Division: Division 2 Family Law Number of paragraphs: 150 Date of last submission/s: 16 February 2023 Date of hearing: 15 & 16 February 2023 Place: Adelaide Counsel for the Applicant: Mr Bowler of Counsel Solicitor for the Applicant: Eastern Legal Counsel for the Applicant: Ms McMahon of Counsel Solicitor for the Respondent: Rita Thakur & Associates ORDERS
ADC 4750 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SANTEK
Applicant
AND: MR LISICA
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
15 MARCH 2023
THE COURT ORDERS THAT:
BY CONSENT
Parental Responsibility
1.The Mother shall have sole parental responsibility for the child X born in 2017 (‘the child’) in respect of religion and education.
2.Before the Mother makes any major decision for the child in respect of religion or education, the Mother shall advise the Father in writing of her proposal and allow him 14 days to provide a written response; and the Mother shall consider any view or proposal put forward by the Father and advise the Father in writing of her decision within a further 7 days.
3.The parties shall have equal shared parental responsibility for the child in respect of medical issues.
4.The Mother shall, within 48 hours, provide the Father with the names and contact details of all medical and alternative medical practitioners that are currently treating the child.
5.The Mother shall not change the child's name without the written consent of the Father.
6.Each parent is otherwise responsible for the day-to-day decision making for the child when the child is in their care.
Lives With
7.The child shall live with the Mother.
BY THE COURT
Time Spending
8.Until September 2025, the child spend time with the Father, in Adelaide (with the Father travelling to Adelaide for that purpose) on the last weekend of each month as follows:
8.1 For the March and April 2023 monthly visits:
8.1.1From 3pm to 6pm on Friday;
8.1.2From…
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CaseChat Overview and Summary
The court was required to decide on the specific times the child should spend with the Father, considering the child's anxiety and the geographical distance between Adelaide and Sydney. The family report writer recommended a cautious approach to gradually increasing the child's time with the Father. The court also needed to decide on the allocation of parental responsibilities, including decision-making regarding the child's education and medical issues, and the living arrangements for the child.
Judge Parker ordered that the child would spend time with the Father in a manner that gradually increased the duration of visits. Initially, the child would spend time with the Father in Adelaide on the last weekend of each month, with the time spent increasing progressively over a period of time. From December 2024, when the child turns eight, the child would spend time with the Father in Sydney during the school holiday periods. The schedule for these visits also increased gradually over time. The court mandated that the Father cover all travel and accommodation costs associated with these visits. Additionally, the Mother was required to accompany the child on the first three interstate trips to Sydney. Special occasions such as Christmas were also addressed, with the child alternating time spent with each parent in alternate years. The court also outlined the allocation of parental responsibilities, granting sole responsibility to the Mother for decisions regarding religion and education, while both parents shared equal responsibility for medical issues. The child was to live with the Mother, and the Father was required to provide the Mother with detailed flight and accommodation information before each interstate trip.
Orders
Orders of the court
ADC 4750 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS SANTEK
Applicant
AND:
MR LISICA
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
15 MARCH 2023
THE COURT ORDERS THAT:
BY CONSENT
Parental Responsibility
1. The Mother shall have sole parental responsibility for the child X born in 2017 (‘the child’) in respect of religion and education.
2. Before the Mother makes any major decision for the child in respect of religion or education, the Mother shall advise the Father in writing of her proposal and allow him 14 days to provide a written response; and the Mother shall consider any view or proposal put forward by the Father and advise the Father in writing of her decision within a further 7 days.
3. The parties shall have equal shared parental responsibility for the child in respect of medical issues.
4. The Mother shall, within 48 hours, provide the Father with the names and contact details of all medical and alternative medical practitioners that are currently treating the child.
5. The Mother shall not change the child's name without the written consent of the Father.
6. Each parent is otherwise responsible for the day-to-day decision making for the child when the child is in their care.
Lives With
7. The child shall live with the Mother.
BY THE COURT
Time Spending
8. Until September 2025, the child spend time with the Father, in Adelaide (with the Father travelling to Adelaide for that purpose) on the last weekend of each month as follows:
8.1 For the March and April 2023 monthly visits:
8.1.1 From 3pm to 6pm on Friday;
8.1.2 From 9am to 5pm on Saturday; and
8.1.3 From 9am to 2pm on Sunday.
8.2 For the May and June 2023 monthly visits:
8.2.1 From 3pm to 6pm on Friday;
8.2.2 From 9am to 6pm on Saturday; and
8.2.3 From 9am to 2pm on Sunday.
8.3 For the July, August, September, October and November 2023 monthly visits:
8.3.1 From 3pm to 6pm on Friday;
8.3.2 From 9am to 7pm on Saturday; and
8.3.3 From 9am to 2pm on Sunday.
8.4 For the monthly visits from December 2023 until December 2024 as follows:
8.4.1 From 3pm to 6pm on Friday for each monthly visit;
8.4.2 From 10am on Saturday until 10am on Sunday for the first monthly visit;
8.4.3 From 10am Saturday until 12pm Sunday for the second monthly visit;
8.4.4 From 10am Saturday until 2pm Sunday for the third monthly visit;
8.4.5 For the fourth monthly visit and each month thereafter:
8.4.5.1 From the conclusion of school (or 3pm) Friday until 6pm; and
8.4.5.2 From 9am Saturday until 2pm Sunday.
8.5 From December 2024 until such time as the child attains the age of 8 years of age (2025), on the last weekend of each month, from the conclusion of school (or 3pm) on Friday until 2pm on Sunday.
9. From the time the child attains the age of 8 years, the child spend time with the Father as follows:
9.1 In Adelaide pursuant to paragraph 8.5 above during the months of February, March, May, June, August and November.
9.2 In Adelaide pursuant to paragraph 8.5 above during the month of September or October if the Father’s time with the child that month does not occur pursuant to paragraph 9.3 below.
9.3 In Sydney during the Term 1 (April), Term 2 (July) and Term 3 (September or October) school holidays with such time to commence on the first Sunday (of the first weekend) in odd numbered years and to commence on the second Friday of the school holiday period in even numbered years as follows:
9.3.1 From 9am until 5pm on three consecutive days during the September/October 2025 holiday period, with the Mother to accompany the child to Sydney and the child to return to the care of the Mother each night during the trip;
9.3.2 For 2 nights during each short school holiday period from January 2026 until September 2027;
9.3.3 For 4 nights during each short school holiday period from October 2027 until September 2028;
9.3.4 For 6 nights during each short school holiday period from October 2028 until September 2029; and
9.3.5 For 8 nights during each short school holiday period from October 2029 until January 2031.
9.4 In Sydney during the Term 4 (December/January) summer school holiday period as follows but subject at all times to paragraph 12.1 herein:
9.4.1 For 2 nights from 9 January 2026 to 11 January 2026;
9.4.2 For 3 nights from 18 January 2027 to 21 January 2027;
9.4.3 For 4 nights from 17 December 2027 to 21 December 2027;
9.4.4 For 6 nights from 12 January 2029 to 18 January 2029;
9.4.5 In 2030, 2031 and 2032:
9.4.5.1 for 1 week (7 nights) in December (to coincide with Christmas if the child is to spend Christmas with the Father in Sydney pursuant to paragraph 12.1 below) at times to be agreed but in default of agreement as follows:
9.4.5.1.1 If the child is spending Christmas in Sydney with the Father, then from 23 December until 30 December; or
9.4.5.1.2 If the child is spending Christmas in Adelaide with the Mother, then from the Saturday immediately following the conclusion of the school term 4, for 7 consecutive nights or until 23 December (whichever is the earlier); and
9.4.5.2 for the second to last week (for 7 nights) of the school holiday period in January with such time to commence on the 3rd to last Saturday of the holidays and to conclude on the 2nd to last Sunday of the holidays (for the avoidance of doubt, the child shall be in the Mother’s care for the final week of the holidays prior to the school term commencing).
9.4.6 From 2033 onward:
9.4.6.1 For one week (7 nights) in December (to coincide with Christmas if the child is to spend Christmas with the Father in Sydney pursuant to paragraph 12.1 below) at times to be agreed but in default of agreement as follows:
9.4.6.1.1 If the child is spending Christmas in Sydney with the Father, then from 23 December until 30 December; or
9.4.6.1.2 If the child is spending Christmas in Adelaide with the Mother, then from the Saturday immediately following the conclusion of the school term 4, for 7 consecutive nights or until 23 December (whichever is the earlier); and
9.4.6.2 For two weeks (14 nights) of the school holiday period in January, subject to the child’s wishes, NOTING THAT the child will be 16 years of age, at times to be agreed or in default of agreement from the 2nd to last Friday (for 14 consecutive nights) of the school holiday period in January.
10. In the event that the Father is unable to travel to Adelaide for any of his monthly time spending with the child pursuant to paragraphs 8 and 9 herein, the schedule of visits with the increasing times shall be followed based on the number of visits, not the number of months. In other words, the incremental increase in time only occurs at the next visit, not according to months passed.
11. If the child is to travel to Sydney to spend time with the Father pursuant to paragraph 9 above:
11.1 All costs of such travel are to be at the Father’s sole expense;
11.2 The costs of accommodation for the Mother and the child for the trip provided for at paragraph 9.3.1 hereof is to be at the Father’s sole expense;
11.3 The Mother is to accompany the child on the flights for the first three (3) interstate trips during which the child spends overnight time with the Father in Sydney;
11.4 Thereafter the Father is to accompany the child on all flights;
11.5 The Father is to provide the Mother with the details of all flights and where the child will be staying whilst in Sydney with the Father at least 14 days prior to the child travelling;
11.6 The Father shall facilitate the child having a FaceTime/video call with the Mother each alternate day and whenever the child shall request; and
11.7 Both parents shall respond within 2 hours of receipt of a request from the other as to the welfare of the child, limited to 3 requests per visit.
12. The child spend time with each of her parents for the following special occasions as follows:
12.1 For Christmas:
12.1.1 From Christmas in 2023 and each alternate year thereafter, with the Mother from 5pm on Christmas Eve until 3pm on Christmas Day PROVIDED THAT the Father is at liberty to spend time with the child from 3pm on Christmas Day until 7pm on Boxing Day (in Adelaide);
12.1.2 For Christmas in 2024 and each alternate year thereafter, with the Father from 5pm on Christmas Eve until 3pm on Christmas Day PROVIDED THAT the Mother is at liberty to spend time with the child from 3pm on Christmas Day until 7pm on Boxing Day (in Adelaide);
12.1.3
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Evidence Before The Court
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Decision
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Legal Principle Established
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