Father Opposes Final Parenting Orders

Zlotnik & Gerasimov [2021] FedCFamC1A 56 (8 November 2021)

The father lodged an appeal against final parenting orders made by the primary judge ordering equal shared parental responsibility for the child and for the child to live with the mother and spend time with the father.  The father asserts that the primary judge erred in reducing the child’s time with him significantly and lessened its quality.  The Court, in resolving this dispute, relied upon s 65DAA of the Family Law Act 1975 (Cth) Pt VII.

Facts:

The parties are the parents of B, born in 2012 who is now nine years of age. The parents agree that final separation occurred in February 2013, when the child was 13 months of age.  Upon the child commencing primary school, the maternal grandmother began to spend six months each year in Australia and the other half of the year in Country J.  The child has a loving relationship with his maternal grandmother who is of Country J ethnicity. 

The child has travelled to Country J in almost each year of his life.  Following separation and in May 2013, the child, mother and maternal grandmother travelled to Country J.  In June 2013, the mother left the child in Country J with the maternal grandparents.  She returned to Country J in August 2013 and thereafter returned to Australia on 15 September 2013 with the child and the maternal grandmother.

Pursuant to a court order, the mother and child again travelled to Country J in June 2015.  In August 2015, the mother having already returned to Australia without the child, Justice Rees made orders permitting the child to stay in Country J with the maternal grandmother until 28 December 2015.  The father commenced the litigation of the dispute by filing proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) for final parenting orders on 30 January 2015.  Interim parenting orders were made by consent by Justice Rees on 5 August 2015 for the child to live with the mother and spend increasingly longer periods of time with the father. 

The father appeals the parenting orders made by a judge of the Family Court of Australia on 27 August 2020.  The appealed orders provide for the mother and father to have equal shared parental responsibility for the child and for the child to live with the mother and spend time with the father.  Orders were also made for the father to maintain the child's passports. Each of the parents are permitted to take the child overseas and interstate in accordance with notice and information provisions. 

The mother resists the appeal seeking that the child live with her and spend time with the father; that she travel with the child to Country J for a period of not more than five weeks each year upon giving written notice to the father; and that both parents be at liberty to take the child for a holiday overseas or interstate upon the giving of notice to the other parent. The father seeks that the child spend equal time with each parent on a week about basis during school terms, half of the school term holidays and Christmas holidays and special occasion days and/or any other times agreed between the parents and for the parent who had the care of the child to be at liberty to travel anywhere in Australia at any time with information to be provided to the other parent as to the location of the child.  

Issue:

Whether or not the primary judge failed to give proper regard to the effect of the orders made.

Applicable law:

Family Law Act 1975 (Cth) Pt VII and s 65DAA - provides that subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

(a)  consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b)  consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c)  if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 - provides that the proper exercise of discretion in parenting cases may be broad, “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require”. 

House v The King (1936) 55 CLR 499; [1936] HCA 40 - provides that it is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. 

O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33 - where the orders of the primary judge as to special occasions were those as proposed by the mother and agreed to by the ICL. 

U v U (2002) 211 CLR 238; [2002] HCA 36 - held that the fact that different orders could have been made by the primary judge does not indicate error by the primary judge. 

Analysis:

The error as claimed by the father is that the primary judge did not make an order as desired by the father, but rather an order which he claimed reduced the child’s time with him significantly and lessened its quality.  However, it was not necessary for the primary judge to make orders for the child to spend some hours each Tuesday and each Wednesday with the father to make provision for substantial and significant time in the terms of s 65DAA(3) of the Act.  The father argues that the primary judge erred by placing no obligation upon the mother to do all acts and sign such documents to keep current the child’s passports and likewise placed no obligation upon the mother, nor provided a timeframe for her, to release the child’s passports to the father to facilitate the child’s overseas travel with him.  The evidence before the primary judge was that the mother had travelled almost yearly with the child to Country J.

She held the child’s passports and had ensured that his passports remained valid and did not expire.  The mother supported overseas travel for the child to be undertaken by either parent. There was no evidence that she would be obstructive.

Conclusion:

The Court concluded that the primary judge did not err in making orders. The father has failed to identify any error or argument which supports his assertion that the primary judge was “plainly wrong” in respect of any ground of appeal.  The Court dismissed the appellant’s application to file and rely on the Further Amended Notice of Appeal and Amended Summary of Argument, both dated 3 September 2021.  The appellant’s oral application to adjourn the appeal hearing is likewise dismissed.  The Court further orders to dismiss the appeal.  The appellant should pay the respondent’s costs of the appeal fixed in the sum of $2,390.85.