Babcock & Waddell

Case [2019] FamCAFC 129

FAMILY COURT OF AUSTRALIA

BABCOCK & WADDELL [2019] FamCAFC 129

FAMILY LAW – APPEAL – PARENTING – Relocation – Where the primary judge permitted the mother to relocate the residence of the child from Sydney to Perth – Where the father asserts that the primary judge erred by referring to and relying only on the advantages of relocation without balancing those advantages with the disadvantages – Where the father asserts that the primary judge only addressed the disadvantages of relocation after deciding that relocation should be permitted, and in framing orders to address those disadvantages – Where the primary judge undertook the necessary balancing of the advantages and disadvantages of the parties’ competing proposals – Where it was appropriate for the primary judge to mould the orders to address the disadvantages of permitting relocation once it was determined that relocation was in the child’s best interests – Consideration of the application and relevance of Re: TC and JC (Children: Relocation) [2013] EWHC 292 in Australian law – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the mother and the Independent Children’s Lawyer sought orders for costs in the event that the appeal was unsuccessful – Where the father failed to put any factor before the Court in opposition of the applications for costs – Costs ordered in favour of the mother and the Independent Children’s Lawyer.

Family Law Act 1975 (Cth) ss 60CC, 65DAA

Family Law Rules 2004 (Cth)
Family Court of Australia Practice Direction No. 1 of 2017
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lane & Nichols (2016) FLC 93–750; [2016] FamCAFC 234
Re: TC and JC (Children: Relocation) [2013] EWHC 292
Sampson & Hartnett (No. 10) (2007) FLC 93-350; [2007] FamCA 1365
Sayer & Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209
Starr & Duggan [2009] FamCAFC 115
U v U (2002) 211 CLR 238; [2002] HCA 36
APPELLANT: Mr Babcock
RESPONDENT: Ms Waddell
INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales
FILE NUMBER: SYC 6272 of 2010
APPEAL NUMBER: EA 73 of 2018
DATE DELIVERED: 31 July 2019
PLACE DELIVERED: Adelaide
PLACE HEARD: Sydney
JUDGMENT OF: Strickland, Ryan & Aldridge JJ
HEARING DATE: 31 October 2018
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 30 April 2018
LOWER COURT MNC: [2018] FamCA 276

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Cook
SOLICITOR FOR THE APPELLANT: Solari Law
COUNSEL FOR THE RESPONDENT: Mr Todd
SOLICITOR FOR THE RESPONDENT: Gillard Consulting Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Guterres
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

Orders

  1. The appeal be dismissed.

  2. The appellant father…

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AGLC
Babcock & Waddell [2019] FamCAFC 129
Case
[2019] FamCAFC 129
Decision Date

CaseChat Overview and Summary

The appeal in Babcock & Waddell was brought by the father against a decision of the Family Court of Australia which permitted the mother to relocate the residence of the child from Sydney to Perth. The father argued that the primary judge had erred in allowing the relocation without adequately balancing the advantages and disadvantages of the move. He contended that the primary judge only addressed the disadvantages after deciding in favour of relocation and subsequently framed orders to mitigate those disadvantages. The father sought to appeal the decision on these grounds.

The court examined whether the primary judge had undertaken the necessary balancing of the advantages and disadvantages of the parties' competing proposals. It was found that the primary judge had indeed considered both the benefits and drawbacks of relocation. The court further considered that it was appropriate for the primary judge to mould the orders to address the disadvantages of permitting relocation once it was determined that relocation was in the child's best interests. The court also addressed the relevance of the English case Re: TC and JC (Children: Relocation) [2013] EWHC 292, concluding that it was applicable in Australian law.

The appeal was dismissed, and no merit was found in any of the grounds raised by the father. The court found that the primary judge had correctly balanced the advantages and disadvantages and appropriately tailored the orders to address the disadvantages of relocation. Additionally, costs were awarded in favour of the mother and the Independent Children’s Lawyer as the father did not provide any factors in opposition to the applications for costs.

The orders made by the court were that the appeal be dismissed and that the father pay the costs of the mother in the sum of sixteen thousand five hundred dollars and the costs of the Independent Children’s Lawyer in the sum of five thousand five hundred and eleven dollars. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The appellant father pay the costs of the respondent mother fixed in the sum of SIXTEEN THOUSAND FIVE HUNDRED DOLLARS [$16,500], and the costs of the Independent Children’s Lawyer fixed in the sum of FIVE THOUSAND FIVE HUNDRED AND ELEVEN DOLLARS [$5,511].

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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