FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BABCOCK & WADDELL | [2011] FMCAfam 40 |
| FAMILY LAW – Children – parenting orders – interim orders – relocation – best interests of the child – equal shared parental responsibility – equal time – substantial and significant time – whether a recovery order should issue. PRACTICE & PROCEDURE – Application to set aside orders – where respondent had not attended court – explanation for non-attendance – transfer of proceedings – change of venue. |
| Family Law Act 1975(Cth), ss.60CA, 60CC, 61DA, 65DAA, 67Q Restraining Orders Act 1997 (WA) Federal Magistrates Court Rules 2001 rr.8.01, 16.05 |
| Babcock & Waddell [2010] FMCAfam 1280 SZBRB v Minister for Immigration [2004] FMCA 285 SZCPY v Minister for Immigration 2004 FMCA 646 SZIPN v Minister for Immigration & Anor [2006] FMCA 1751 SZITC v Minister for Immigration & Anor [2006] FMCA 424 Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422 |
| Applicant: | MR BABCOCK |
| Respondent: | MS WADDELL |
| File Number: | SYC6272/2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 January 2011 |
| Date of Last Submission: | 11 January 2011 |
| Delivered at: | Sydney |
| Delivered on: | 18 January 2011 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Morozov |
| Solicitors for the Applicant: | Barkus Doolan Kelly |
| Solicitor for the Respondent: | Mr Klimek |
| Solicitors for the Respondent: | Klimek & Co |
ORDERS
Orders (1) to (13) inclusive made on 25 October 2010 are discharged.
ORDERS UNTIL FURTHER ORDER
The mother must return the child [X] born [in] 2006 to Sydney forthwith.
The father and mother are to have equal shared parental responsibility for the child [X].
The mother is restrained from relocating the residence of the child from Sydney.
The parties are restrained from removing the child from the Sydney Metropolitan Area without the written consent of the other party or order of the Court.
The child is to spend time with the father as follows:
(a)
In Week One of each fortnight, from after school or pre-school on Friday or 4.00 pm until the commencement of school or
pre-school on Monday or 9.00 am, and each alternate week thereafter;
(b)
In Week Two of each fortnight, from after school or pre-school on Wednesday until before school or pre-school on Friday or
9.00 am, and each alternate week thereafter;
(c)From 9.00 am on Christmas Eve 2011 until 2.00 pm on Christmas Day 2011;
(d)For a period of three (3) hours on the child’s birthday if that day falls on a day when the child would not otherwise be spending time with the father;
(e)For a period of three (3) hours on the father’s birthday if that day falls on a day when the child would not otherwise be spending time with the father;
(f)From 9.00 am on Father’s Day until the commencement of school or pre-school on the Monday or 9.00 am;
(g)For half of the Autumn, Winter and Spring school holiday periods as agreed between the parties and, failing agreement, for the first half of each school holiday in even numbered years and the…
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- Case
- [2011] FMCAfam 40
- Decision Date
CaseChat Overview and Summary
The court considered the evidence and submissions from both parties and examined the child's best interests. The court determined that the child should live with the mother in Sydney, but the parents would have equal shared parental responsibility. The court also made orders regarding the child's time spent with each parent, relocation restrictions, and other matters to ensure the child's welfare. The court found that the orders made on 25 October 2010 should be discharged and replaced with new orders.
The court made several orders to ensure the child's welfare, including that the child must return to Sydney forthwith, that the parents have equal shared parental responsibility, and that the mother is restrained from relocating the child's residence from Sydney. The court also made detailed orders regarding the child's time spent with each parent, including specific days and times, and made orders to facilitate communication between the child and each parent. The court further made orders regarding the child's education, medical treatment, and other matters to ensure the child's welfare.
The court made various other orders, including that the parties must facilitate telephone calls or communications via Skype between the child and the other party, that each party must notify the other of any serious injury or illness suffered by the child whilst in their care, and that the parties must ensure that the child is enrolled in and attends a specific school until the completion of kindergarten. The court also made orders regarding the parties' financial responsibilities and drug and alcohol use while caring for the child. The court made a recovery order to ensure the child's safe return to the father if necessary.
Orders
Orders of the court
1.
Orders (1) to (13) inclusive made on 25 October 2010 are discharged.
ORDERS UNTIL FURTHER ORDER
2.
The mother must return the child [X] born [in] 2006 to Sydney forthwith.
3.
The father and mother are to have equal shared parental responsibility for the child [X].
4.
The mother is restrained from relocating the residence of the child from Sydney.
5.
The parties are restrained from removing the child from the Sydney Metropolitan Area without the written consent of the other party or order of the Court.
6.
The child is to spend time with the father as follows:
(a)
In Week One of each fortnight, from after school or pre-school on Friday or 4.00 pm until the commencement of school or
pre-school on Monday or 9.00 am, and each alternate week thereafter;
(b)
In Week Two of each fortnight, from after school or pre-school on Wednesday until before school or pre-school on Friday or
9.00 am, and each alternate week thereafter;
(c) From 9.00 am on Christmas Eve 2011 until 2.00 pm on Christmas Day 2011;
(d) For a period of three (3) hours on the child’s birthday if that day falls on a day when the child would not otherwise be spending time with the father;
(e) For a period of three (3) hours on the father’s birthday if that day falls on a day when the child would not otherwise be spending time with the father;
(f) From 9.00 am on Father’s Day until the commencement of school or pre-school on the Monday or 9.00 am;
(g) For half of the Autumn, Winter and Spring school holiday periods as agreed between the parties and, failing agreement, for the first half of each school holiday in even numbered years and the second half of each school holiday period in odd numbered years;
(h) For a period of two (2) weeks during the Christmas/January school holiday period commencing on 2 January in each year; and
(i) At such other times as the parties shall agree.
7.
The child is otherwise to live with the mother and, in addition, live with the mother as follows:
(a) from after school or pre-school on the Friday before Mother’s Day until the commencement of school or pre-school on the Monday following;
(b) for a period of three (3) hours on the child’s birthday if that day falls on a day when the child would not otherwise be spending time with the mother;
(c) for a period of three(3) hours on the mother’s birthday if that day falls on a day when the child would not otherwise be spending time with the mother; and
(d) at such other times as the parties shall agree.
8.
For the purpose of facilitating the periods when the child is to live or spend time with each of the parties, the father must collect the child from the mother’s residence at the commencement of the time that the child is to spend time with him and the mother must collect the child from the father’s residence at the conclusion of the time when the child is to spend time with the father PROVIDED THAT where these orders provide that the child is to spend time with the father or live with the mother is to commence after school or pre-school or conclude before school or pre-school then the parties must ensure that this changeover takes place at the child’s school or pre-school.
9.
The parties are to facilitate telephone calls or communications via Skype between the child and the other party at 6.00 pm (Sydney time) on Tuesdays, Thursdays and Saturdays in each week while the child is in their respective care PROVIDED THAT if the child is not available at 6.00 pm (Sydney time) then at such other time as the parties shall agree.
10.
The father is to have responsibility for making decisions about the day to day issues concerning the child’s care welfare and development when the child is in his care as provided by these Orders and the mother is to have responsibility for making decisions about the day to day issues concerning the child’s care welfare and development when the child is in her care as provided by these Orders.
11.
Each party must notify the other as soon as possible and in any event within four (4) hours of any serious injury or illness suffered by the child whilst in that party’s care.
12.
Each party must inform the other of the names and addresses of any medical professionals who may treat the child whilst in their care and authorise them to provide all necessary information to the other party about the health and treatment of the child.
13.
The parties must authorise any school or pre-school attended by the child to provide to each of the parties copies of all school reports, newsletters, information about school photographs and other information normally provided to parents of children attending the school or pre-school.
14.
The parties must do all things to ensure that the child is enrolled in and attends the Montessori [omitted] School at [Sydney suburb omitted] until the completion of kindergarten.
15.
The father must make available to the mother the 1990 Toyota Corolla motor car within twenty-four (24) hours of her arrival in Sydney and permit her to have the exclusive and occupation of the said motor car.
16.
The father must pay the following as soon as they become due and payable:
(a) the rent on the mother’s residence in Sydney; and
(b) the child’s school or pre-school fees and medical health insurance;
17.
the parties are to do all things necessary and sign all documents required and direct the tenant of the property at Property S, Sydney to account directly to the mother.
18.
The parties are restrained from administering to themselves any illicit drug at any time when the child is in their care or for twenty four (24) hours beforehand.
19.
The father is restrained from consuming any alcohol at any time when the child is in his care or for twenty four (24) hours beforehand.
20.
The father is to continue to undertake chain of custody urinalysis testing for illicit drugs and alcohol on three (3) occasions in each week until 31 March 2011 and provide the results to the mother’s solicitor each week.
21.
The father is to undertake hair follicle testing for the presence of illicit drugs during the months of April, July, October and January until January 2012 and provide the results of such testing to the mother’s solicitor with seven (7) days of receiving such result.
22.
The parties are restrained from denigrating each other or using abusive or intimidating language to each other in the presence or hearing of the child [X].
23.
A recovery order is to issue but to lie in office for twenty-one (21) days addressed to the Marshal of the Federal Magistrates Court and to all officers of the Australian Federal Police and to all officers of the police forces of the States and Territories of Australia.
24.
Such persons are authorised and directed to find and recover the child [X] born [in] 2006 and for that purpose with such assistance as they require to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.
25.
The child is to be delivered to the father at Property S in the State of New South Wales or to such other address as agreed between the person executing the recovery order and the father.
26.
The recovery order is to remain in force for a period of twelve (12) months.
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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