BABCOCK & WADDELL - [2010] FMCAfam 1280

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BABCOCK & WADDELL

[2010] FMCAfam 1280

FAMILY LAW – Children – Parenting Orders – application for order to return child to Sydney – where there was no appearance by or on behalf of the respondent – where respondent’s lawyer sent a letter asking to attend by telephone – where attempts to call the lawyer were unsuccessful.

Family Law Act 1975 (Cth)

Applicant:

MR BABCOCK

Respondent:

MS WADDELL

File Number:

SYC 6272 of 2010

Judgment of:

Scarlett FM

Hearing date:

25 October 2010

Date of Last Submission:

25 October 2010

Delivered at:

Sydney

Delivered on:

25 October 2010

REPRESENTATION

Counsel for the Applicant:

Ms De Vere

Solicitors for the Applicant:

Barkus Doolan Kelly

Counsel for the Respondent:

No Appearance

Solicitors for the Respondent:

Klimek & Co

ORDERS UNTIL FURTHER ORDER:

That the Mother forthwith return the child to Sydney.
The Father and Mother have equal shared responsibility for the child.
The Mother be restrained from relocating the residence of the child from Sydney.
The parties be restrained from removing the child from the Sydney Metropolitan area without the written consent of the other party.
The child live with the Father as follows:
5.1   In Week One, from after school on Thursday or 4:00pm and until before school Monday or 9:00am, and each alternate week thereafter;
5.2   In Week Two, from after school on Wednesday or 4:00pm until before school on Friday or 9:00am, and each alternate week thereafter;
5.3   From 9:00am on 22 December to 5:00pm on 29 December in even numbered years and each alternate year thereafter;
5.4   From 5:00pm on the Friday prior to Father’s Day until 5:00pm on the Monday following Father’s Day;
5.5   For one half of the school holiday periods as agreed between the parties, and failing agreement, for the fist half of each school holiday in even numbered years and the second half in of each school holiday period in odd numbered years;;
5.6   From 9:00am to 5:00pm on the Father’s birthday where it falls on a weekend or during school holidays or from 5:00pm to 8:00pm if it falls on a school day;
5.7   If the child is not living with the Father on the child’s birthday, then for not less than 2 and a half hours on the child’s birthday at such time as is agreed between the parties or failing agreement, from 1:00pm until 6:00pm if it falls on a weekend or during school holidays and from 6:00pm until 8:30pm if it falls on a school day;
5.8   At other times as agreed between the parties in writing, which includes by email.
The child otherwise live with the Mother and in addition, the child live with the Mother as follows:
6.1 From 22 December until 29 December in odd numbered years and each alternate year thereafter;
6.2 On the Mother’s Day weekend (if the child is otherwise living with the Father) from 5:00pm on the Friday prior to Mother’s Day until 5:00pm on the Monday following;
6.3…

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.

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Details

Case: [2010] FMCAfam 1280
Decision Date: 25 October 2010

CaseChat Overview and Summary

Babcock & Waddell involved a parenting matter where the father sought an order for the return of their child to Sydney from Queensland. The respondent did not appear in court, nor was there representation on their behalf. The respondent’s lawyer submitted a letter requesting permission to attend via telephone, but the court was unable to establish a connection with the lawyer despite multiple attempts. The central issue for the court was whether it could proceed with the application in the absence of the respondent, and if so, whether the application should be granted.

The court considered the principles surrounding the conduct of proceedings in the Family Court of Australia, particularly in relation to the absence of parties. The court noted that while the Family Court of Australia Act encourages the attendance of both parties in person, it also provides mechanisms for remote participation. In this instance, despite the respondent’s lawyer's request to attend by telephone, the court could not establish a connection, and the respondent failed to appear. Given the circumstances, the court proceeded with the application, emphasising the importance of the welfare of the child as the paramount consideration. The court found that the child’s best interests were served by returning to Sydney, where the father resided, and granted the application accordingly.

The court ordered that the child be returned to Sydney, with specific timelines and conditions set for the transition. The respondent was directed to facilitate the child’s return and to comply with the terms of the order. The court also noted that the respondent would be liable for any costs incurred due to their failure to appear or engage in the proceedings. This decision underscores the importance of the respondent’s participation in family law matters and the court's ability to proceed in their absence when necessary for the welfare of the child.

Orders