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BABIC and TACCINI

BABIC and TACCINI

Case [2024] FCWA 203 13 September 2024

Parental Responsibility

Supervised Time

Sole Parental Responsibility

Alternating Weekends

Family Law

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: BABIC and TACCINI [2024] FCWA 203
CORAM: O'BRIEN J
HEARD: [REDACTED] SEPTEMBER 2024
DELIVERED : 13 SEPTEMBER 2024
FILE NO/S: 2418 of 2015
BETWEEN: MS BABIC
Applicant
AND
MR TACCINI
Respondent

Catchwords:

PARENTING - Where following a trial final orders were made in December 2023 whereby the husband has sole parental responsibility, and the children live with him and spend limited supervised time with the wife - Where the wife commenced fresh proceedings in June 2024 seeking to reverse those arrangements such that she would have sole parental responsibility, and the children would live with her and spend alternate weekends with the husband - Where there is no relevant change in circumstances since the primary orders were made - Consideration of the application of s 65DAAA of the Family Law Act 1975 (Cth) ("the Act") and whether relevant principles have changed since the legislative amendment which enacted it - Where the relevant principles are unchanged

HARMFUL PROCEEDINGS ORDERS - Where the husband seeks a harmful proceedings order pursuant to s 102QAC - Discussion of relevant principles - Where there are clearly reasonable grounds to believe that the children would suffer harm if the wife institutes further proceedings - Order made

COSTS - Where there are circumstances justifying an order for costs - Turns on its own facts

Legislation:

Family Law Act 1975 (Cth)
Family Law Amendment Bill 2023 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	No Appearance
Respondent	:	Mr J Hedges SC

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Bloxham Legal

Case(s) referred to in decision(s):

[2023] FCWA 291
Anison & Anison (2019) FLC 93-908
Banks & Banks (2015) FLC 93-637
Cape & Cape (2013) FLC 93-549
Dauntry & Wemple (2018) FLC 93-876
Defrey & Radnor [2021] FamCAFC 67
George v Rockett (1990) 170 CLR 104
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Lenova & Lenova (Costs) [2011] FamCAFC 141
Miller & Harrington (2008) FLC 93-383
Parke & The Estate of the Late A Parke (2016) FLC 93-748
Poisat & Poisat [2014] FamCAFC 128
Prior v Mole (2017) 261 CLR 265
R v Tillett; Ex parte Newton (1969) 14 FLR 101
Rasheem & Rasheem [2024] FedCFamC1F 595
Rice and Asplund (1979) FLC 90-725
SCVG v KLD (2014) 51 Fam LR 340
Searson & Searson (2017) FLC 93-788
SPS and PLS (2008) FLC 93-363
Vella v Commissioner of Police (NSW) (2019) 269 CLR 219
Whitehill & Talaska [2024] FedCFamC2F 768

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Babic and Taccini has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).

This copy of the Court's…

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

AGLC: BABIC and TACCINI [2024] FCWA 203
Case: [2024] FCWA 203
Decision Date: 13 SEPTEMBER 2024

CaseChat Overview and Summary

The proceedings between Babic and Taccini involved a dispute over the parenting arrangements for their children. After a trial, the court made final orders in December 2023, granting the husband sole parental responsibility and determining that the children would live with him. The wife was permitted limited supervised time with the children. In June 2024, the wife initiated fresh proceedings seeking to reverse these arrangements. She aimed to obtain sole parental responsibility, with the children residing with her and spending alternate weekends with the husband. The wife argued that the previous orders should be changed despite no relevant change in circumstances since they were made.

The primary legal issue before the court was whether the wife's application to reverse the existing parenting orders was justified in the absence of a relevant change in circumstances. The court had to consider the application of section 65DAAA of the relevant statute, which deals with the presumption of equal shared parental responsibility and the factors that should be taken into account when determining the best interests of the child. The court also needed to assess whether the wife's application met the criteria for a change in the existing orders, which typically require a significant change in circumstances since the last determination.

In its reasoning, the court emphasised the principle that parenting orders should remain stable unless there is a compelling reason to alter them. It noted that the wife's application did not demonstrate any significant change in circumstances since the previous orders were made. The court held that the existing arrangements, which were made after a thorough trial, were in the best interests of the children. It found that the wife had not provided sufficient evidence to rebut the presumption of equal shared parental responsibility. Consequently, the court dismissed the wife's application to reverse the existing parenting orders.

Orders