FAMILY COURT OF AUSTRALIA
| BABCOCK & WADDELL | [2018] FamCA 276 |
| FAMIILY LAW – CHILDREN – With whom a child lives – Relocation – Where the mother seeks an order to relocate the child to Perth – Where the father opposes the relocation on the basis that it will adversely impact his meaningful relationship with the child – Where the ICL does not support the relocation – Where the child has a close relationship with the paternal family – Where the mother is found to be the parent with whom the child has the strongest and most reliant, confiding and emotionally attuned relationship – Where the mother’s mental health and sense of well-being is likely to be enhanced by the additional emotional support that she will receive from family and friends in Perth – Where the mother’s parenting capacity will be enriched by moving to Perth and the child will benefit – Relocation permitted. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 64B, 65DAA, 65DAC |
| Adamson & Adamson (2014) FLC 93-622 Caswell v Powell Duffryn Associated Collieries, Limited [1940] AC 152 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Rawson Finances Pty Ltd v Federal Commissioner of Taxation (2013) 133 ALD 39 Re: TC and JC (Children: Relocation) [2013] EWHC 292 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Sigley & Evor (2011) 44 Fam LR 439 |
| APPLICANT: | Mr Babcock |
| RESPONDENT: | Ms Waddell |
| INDEPENDENT CHILDREN’S LAWYER: | LEGAL AID NEW SOUTH WALES |
| FILE NUMBER: | SYC | 6272 | of | 2010 |
| DATE DELIVERED: | 30 April 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
HEARING DATE: | 4 - 8 September 2017, 27 October 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cummings SC |
| SOLICITOR FOR THE APPLICANT: | Tiyce & Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Batey |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Guterres |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
Orders
THE COURT ORDERS THAT:
That the…
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- BABCOCK & WADDELL [2018] FamCA 276
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- [2018] FamCA 276
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CaseChat Overview and Summary
The court was required to determine whether it was in the child's best interests to permit the mother to relocate with X to Perth. This involved assessing the impact of such a relocation on the child's relationship with both parents, particularly the father, and considering the mother's circumstances and capacity to care for the child. The court also had to weigh the child's close relationship with the paternal family against the mother's strong and reliant relationship with X.
McClelland J found that the mother had the strongest and most emotionally attuned relationship with the child. The court reasoned that the mother's mental health and well-being would be enhanced by the support network available in Perth, which in turn would enrich her parenting capacity and benefit the child. Consequently, the court permitted the relocation.
The court ordered that the parents have equal shared parental responsibility for X, with X to live with the mother. The mother was permitted to relocate X to Perth from 1 January 2019. Detailed provisions were made for the child to spend time with the father, including during school holidays and specific weekends, with options for the father to travel to Perth. The orders also addressed telephone contact, expenses related to travel and schooling, and medical arrangements.
Orders
Orders of the court
THE COURT ORDERS THAT:
1.
That the father and the mother shall have equal shared parental responsibility for X born … 2006 ('the child').
LIVE-WITH / SPEND TIME-WITH
2.
That the child shall live with the Mother.
3.
From 1 January 2019 the mother be permitted to relocate the child’s residence from the Sydney Metropolitan to the Perth Metropolitan area.
4.
That the child shall spend time with the Father as follows:
(a) During the Term 1, 2 and 3 School holiday period:
(i) For half of the school holiday period in Sydney as agreed between the parties and failing agreement, for the first half in even numbered years and the second half in odd numbered years; or
(ii) If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, for 80 per cent of that school holiday period as agreed between the parties and failing agreement, for the first 14 nights of that 18 night period in Perth;
(b) During the Summer School Holiday period:
(i) For half of the school holiday period in Sydney as agreed between the parties and failing agreement, for the first half in even numbered years and the second half in odd numbered years; or
(ii) If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him:
1. for 80 percent of the school holiday period as agreed between the parties and failing agreement, for the first four and a half weeks of the six week holiday period in Perth; and
2. From 9.00 am on Christmas Eve until 2.00 pm on Christmas Day in even numbered years, and from 2.00 pm on Christmas Day to 4.00 pm on Boxing Day in odd numbered years in Perth;
(c) During the Easter Period, defined as 1.00 pm on Holy Thursday to the commencement of school after Easter Monday:
(i) From 1.00 pm on Holy Thursday until before 6.00 pm on Easter Monday in Sydney; or
(ii) If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from after school on Holy Thursday until the commencement of school after Easter Monday in Perth.
(d) During the Father's day weekend, defined as 1.00pm on Friday to the commencement of school Monday on that weekend:
(i) From 1.00 pm Friday until 6.00 pm Sunday in Sydney; or
(ii) If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from the conclusion of school Friday until the commencement of school Monday in Perth.
(e) On a weekend proximate to the child's birthday, defined as 1.00 pm Friday until the commencement of school Monday:
(i) From 1.00 pm Friday until 6.00 pm Sunday in Perth; or
(ii) If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from the conclusion of school Friday until the commencement of school Monday in Perth.
(f) On a weekend proximate to the Father's birthday, defined as 1:00pm Friday until the commencement of school Monday:
(i) From 1.00pm Friday until 6.00 pm Sunday in Sydney; or
(ii) If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from the conclusion of school Friday until the commencement of school Monday in Perth.
(g) On a weekend proximate to C's birthday, defined as 1:00pm Friday until the commencement of school Monday:
(i) From 1:00pm Friday until 6.00 pm Sunday in Sydney; or
(ii) If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from the conclusion of school Friday until the commencement of school Monday in Perth.
(h) On a weekend proximate to D's birthday, defined as 1:00pm Friday until the commencement of school Monday:
(i) From 1.00 pm Friday until 6.00 pm Sunday in Sydney; or
(ii) If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, from the conclusion of school Friday until the commencement of school Monday in Perth.
(i) On a weekend proximate to Ms E's birthday, defined as 1.00 pm Friday until the commencement of school Monday:
(i) From 1.00 pm Friday until 6.00 pm Sunday in Sydney; or
(ii) If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, are traveling to Perth, from the conclusion of school Friday until the commencement of school Monday in Perth.
(j) For one week in each of Terms 1, 2, 3 and 4 as agreed between the parties and failing agreement the last week of each term, commencing at the conclusion of school Friday in the penultimate week until the following Friday:
(i) in Perth; or
(ii) If the father gives the mother 28 days' notice of his intention to travel to Perth for the child to spend time with him, in Sydney
(k) Such other times as agreed between the parties.
TELEPHONE CONTACT
5.
That the parties are to facilitate telephone calls or communications via Skype between the child and the other party at 7.00 pm (Sydney time) on Tuesdays, Thursdays and Saturdays in each week while the child is in their respective care or as such other time as the parties may agree.
6.
That the child is to have telephone calls with the Paternal Grandmother, Ms E, at 7.00 pm (Sydney time) on Mondays in each week.
7.
That the child is to have telephone calls with her siblings, C and D, at 7.00 pm (Sydney time) on Wednesdays in each week.
EXPENSES
8.
That the cost of the child's travel shall be incurred by the parties equally and on an alternate basis with the:
(a) Father responsible for the child's travel to Sydney on the first occasion and each alternate trip thereafter; and
(b) Mother responsible for the child's travel to Sydney on the second occasion and each alternate trip thereafter.
9.
That the parties bear the cost of their own travel.
10.
That the parties shall equally share the cost of the child's school fees.
11.
That the father shall continue to pay for the child's private health insurance until she attains the age of 18 years.
SCHOOLING
12.
That the parties shall do all things necessary and execute all documents necessary so as to cause the child to continue to be enrolled in F School until the completion of primary school.
13.
Prior to the completion of the child's primary school, the parties shall do all things necessary and execute all documents necessary so as to cause the child to be enrolled in a mainstream high school.
14.
That for the purposes of Order 13 herein mainstream school is taken to mean a school that is not an alternative school including but not limited to alternative education.
15.
That in the event the parties are unable to agree on what mainstream high school the child shall be enrolled in prior to when typical mainstream high schools are commencing enrolments, or on written request of either party, the mother shall provide a list of three schools to the father and the father shall select which mainstream high school the child shall attend within 28 days of receiving the mother's three nominations.
16.
That in the event the father fails or refuses to nominate the school the child shall be enrolled in pursuant to Order 15 above, the mother is at liberty to nominate the school the child attends and shall be solely responsible for her enrolment.
17.
That the parties shall authorise any school attended by the child to provide each of the parties copies of all school reports, newsletters, information about school photographs and other information normally provided to parents of children attending that school.
MEDICAL
18.
Each party shall notify the other as soon as possible and in any event within four hours of any serious injury or illness suffered by the child whilst in the party’s care.
19.
Each party shall inform the other of the names and addresses of any medical professionals or other health professionals who treat the child whilst in their care within 24 hours of treatment and, on request, authorise them to provide all necessary information to the other party about the health and treatment of the child.
20.
That the parties will ensure that they and the child attend on Ms G as and when directed by Ms G and follow any reasonable request, direction or requirement of Ms G, including attending on appointments and the frequency of such appointments.
21.
Both parties are restrained from administering, or causing to be administered, any mental health medication or mood or mind altering medication to the child without the written consent of the other party or by order of the court.
MISCELLANEOUS
22.
That the parties do all things necessary and execute all documents necessary to comply with the airlines 'unaccompanied minor' policy including but not limited to:
(a) Paying any extra travel fee;
(b) Dropping the child to the departure gate; and
(c) Collecting the child from the arrival gate.
23.
The parties shall keep each other informed of their respective addresses and telephone numbers and any change to the same is to be advised to the other party within 7 days of any such change.
24.
The parties are restrained from administering to themselves any illicit drug at any time.
25.
That upon the child attaining the age of 16 years, the parties shall have regard to the child's wishes as to whether she wishes to live in Sydney with the Father or live in Perth with the Mother.
26.
For the purposes of these Orders, the parties will use their best endeavours to put the child on a flight during school term periods:
(a) By no later than 2.00 pm when departing from Perth, to ensure she arrives at a reasonable hour in Sydney; and
(b) Prior to 6.00 pm when departing from Sydney, should the following day require the child's attendance at school.
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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