TENG & SHUE - [2020] FCCA 1841

FEDERAL CIRCUIT COURT OF AUSTRALIA

TENG & SHUE

[2020] FCCA 1841

Catchwords:
FAMILY LAW – Parenting – final orders – where consent position as to parental responsibility and parenting arrangements – where parties each seek sole parental responsibility and live-with arrangements for one child only – where arrangement for children to be separated from their sibling – where spend-time-with arrangements with other parent and sibling commencing on a minimal basis and increasing to one overnight occasion per fortnight in one and a half years.

FAMILY LAW – Parenting – final orders – discrete issues for Court to decide – where disagreement about Airport Watchlist order – where disagreement about overseas travel – where disagreement about issuance of Australian passport for each of the children – where disagreement about restraint on location of parties’ respective residences – where disagreement about telephone communication between the children and their non-live-with parent – where disagreement about restraint on quarrelling in front of children.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB

Cases cited:

Grella & Jamieson [2017] FamCAFC 21

Applicant:

MS TENG

Respondent:

MR SHUE

File Number:

SYC 3459 of 2015

Judgment of:

Judge Morley

Hearing date:

30 September 2019

Date of Last Submission:

4 November 2019

Delivered at:

Sydney

Delivered on:

8 July 2020

REPRESENTATION

Counsel for the Applicant:

Ms Beck

Solicitors for the Applicant:

Lin Tang & Co

Counsel for the Respondent:

Ms Kaiti

Solicitors for the Respondent:

Lawside Lawyers

Counsel for the Independent Children's Lawyer:

Mr Maddox

Solicitors for the Independent Children's Lawyer:

John Spence & Associates

ORDERS

THE COURT BY CONSENT ORDERS:

That the father MR SHUE born in 1981 (“the father”) have sole parental responsibility for the child X born in 2013 (“X”).
That the mother MS TENG born in 1986 (“the mother”) have sole parental responsibility for the child Y born in 2014 (“Y”).
That X live with the father.
That Y lived with the mother.
That X spend time with the mother and Y as follows:
(a)In 2019, from 1.00PM until 5.00PM on Saturdays;
(b)From 2020, from 12.00PM until 7.00PM on Saturdays;
(c)From June 2021, each alternate weekend from 12.00PM on Saturday until 6.00PM on Sunday, such that Y and X are together each weekend;
(d)From the June-July holidays in 2021 and each holiday thereafter, up to 12.00PM on Wednesday following X’s weekend with her mother, and for two such blocks in the Christmas holidays following X’s weekends with her mother;
(e)For a period of three hours on X’s birthday; and
(f)At any other times as agreed.
That Y spend time with the father and X as follows:
(a)In 2019, from 1.00PM until 5.00PM on Sundays;
(b)From 2020, from 12.00PM until 7.00PM on Sundays;
(c)From June 2021, from each alternate weekend from 12.00PM on Saturday until 6.00PM on Sunday such that Y and X are together each weekend;
(d)From the June-July holidays in 2021 and each holiday thereafter, up to 12.00PM on Wednesday following Y’s weekend with his father and for two…

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 TENG & SHUE

Details

AGLC: Teng and Shue [2020] FCCA 1841
Case: [2020] FCCA 1841
Decision Date: 8 July 2020

CaseChat Overview and Summary

This matter concerned final parenting orders sought by the mother, Ms Teng, and the father, Mr Shue, in relation to their two children, X and Y. The parties presented a consent position regarding parental responsibility and living arrangements, with each parent seeking sole parental responsibility and live-with arrangements for one child only. This resulted in the children being separated from their sibling. The agreed spend-time-with arrangements for the non-live-with parent were to commence minimally and increase over time to one overnight occasion per fortnight.

The court was required to determine several discrete issues that remained in dispute between the parties. These included the necessity of an Airport Watchlist order, arrangements for overseas travel, the issuance of Australian passports for each child, restrictions on the location of the parties' residences, the nature of telephone communication between the children and their non-live-with parent, and a restraint on quarrelling in front of the children.

By consent, the court made orders granting the father sole parental responsibility for X, who would live with him, and the mother sole parental responsibility for Y, who would live with her. The orders detailed a phased increase in the time X would spend with the mother and Y with the father, ensuring the siblings were together during these periods. Further orders addressed communication, medical information sharing, school involvement, and the return of children's possessions. Crucially, the court ordered that neither parent be at liberty to relocate either child's residence outside the Sydney Metropolitan Area without written consent, and placed both children on the Family Law Watchlist for seven years, restraining their removal from Australia. Additionally, both parents were restrained from denigrating each other or allowing others to do so in the children's presence, and from quarrelling in front of the children.

Orders

Orders of the court

THE COURT BY CONSENT ORDERS:

That the father MR SHUE born in 1981 (“the father”) have sole parental responsibility for the child X born in 2013 (“X”).

That the mother MS TENG born in 1986 (“the mother”) have sole parental responsibility for the child Y born in 2014 (“Y”).

That X live with the father.

That Y lived with the mother.

That X spend time with the mother and Y as follows:

(a) In 2019, from 1.00PM until 5.00PM on Saturdays;

(b) From 2020, from 12.00PM until 7.00PM on Saturdays;

(c) From June 2021, each alternate weekend from 12.00PM on Saturday until 6.00PM on Sunday, such that Y and X are together each weekend;

(d) From the June-July holidays in 2021 and each holiday thereafter, up to 12.00PM on Wednesday following X’s weekend with her mother, and for two such blocks in the Christmas holidays following X’s weekends with her mother;

(e) For a period of three hours on X’s birthday; and

(f) At any other times as agreed.

That Y spend time with the father and X as follows:

(a) In 2019, from 1.00PM until 5.00PM on Sundays;

(b) From 2020, from 12.00PM until 7.00PM on Sundays;

(c) From June 2021, from each alternate weekend from 12.00PM on Saturday until 6.00PM on Sunday such that Y and X are together each weekend;

(d) From the June-July holidays in 2021 and each holiday thereafter, up to 12.00PM on Wednesday following Y’s weekend with his father and for two such blocks in the Christmas holidays following Y’s weekend with his father;

(e) For a period of three hours on Y’s birthday; and

(f) At any other times as agreed.

That the father be at liberty to suspend orders 5(a), (b) and (c) on one occasion each year during school holidays provided he gives the mother 30 days written notice of such.

That the mother be at liberty to suspend orders 6(a), (b) and (c) on one occasion each year during school holidays provided she gives the father 30 days written notice of such.

That each of the parents keep the other parent informed at all times of their current residential address, email address, and contact telephone numbers, including mobile telephone numbers and advise the other parent within seven days of any change to those details.

10.

That each of the parents shall as soon as practicable:

(a) Notify the other parent of any medical emergency affecting either of the children whilst in their care or any serious illness or injury suffered by either of the children whilst in their care, and each parent is entitled to attend any medical professional or hospital treating the child;

(b) Provide all authorities and directions necessary to all health professionals consulted by either child and provide to the other parent all information and material received from any health professional in relation to either child;

(c) Provide all authorities and directions necessary to any school attended by either child to authorise the school to provide all information about either child equally to each of the parents;

(d) Inform the other parent of any major events occurring in either child’s life including, but not limited to, the death of a family member or the remarriage of the parent.

11.

That each of the parties is authorised to obtain, at that party’s own cost, information and copies of all documents relating to the care, welfare and development of each child from all schools and extra-curricular activities either child may attend and all treating medical and allied health practitioners either child may attend.

12.

That each parent shall be entitled to fully participate in all and any parent/student activities at each child’s school. In this regard, the parents will use their best endeavours to give each other reasonable advance notice if either party is intending to attend such activity, and both parties shall do all things to ensure that they are kept up-to-date with school events by reading notices, activity emails and other information to which they have access.

13.

Pursuant to section 121(9)(d) of the Family Law Act 1975 (Cth), the mother and father are each at liberty to provide a copy of these orders to each child’s school.

14.

That each parent shall ensure that when the child is returned to the other parent they return the clothing and possessions that child arrived with at the commencement of his or her time with that parent.

15.

That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or within the hearing of either of the children.

16.

That each of the parents is restrained from allowing either of the children to remain in the presence of, or within either child’s hearing of, any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.

17.

That each child is at liberty to receive any reasonable gift from each parent and to bring that gift with him or her to each parent’s residence.

THE COURT FURTHER ORDERS:

18.

That unless otherwise agreed between the parties in writing, changeovers at the start and finish of a parent’s time with the child will occur by the child being delivered to, and collected from, the other parent’s place of residence by the parent with whom the child lives.

19.

That each of the parents is restrained from relocating either child’s place of residence outside the Sydney Metropolitan Area without the written and signed consent of the other parent.

20.

That each of Ms Teng born in 1986 and Mr Shue born in 1981, their servants and agents are restrained, irrespective of any authenticated consent under section 65Y of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of either of the children X born in 2013 and Y born in 2014 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of X born in 2013 and Y born in 2014 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain each child’s name on that Watchlist for seven (7) years.

21.

That each of the parents is restrained from quarrelling with the other parent in the presence of or within the hearing of either child.

22.

That each of the parents must use their best endeavours to ensure that his or her relatives, partner, or associates do not quarrel with the other parent in the presence of or within the hearing of either child.

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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