FEDERAL CIRCUIT COURT OF AUSTRALIA
| BABIC & TAKALA | [2017] FCCA 1631 |
| Catchwords: FAMILY LAW – Children – where mother sought an order restraining father from facilitating time with maternal grandparents – where mother is in conflict with the father and maternal grandparents – where mother perceived father’s involvement of maternal grandparents as controlling – where Family Consultant indicated it would be preferable for the mother to facilitate time with her parents – where conflict remained unabated – injunction order made pursuant to section 68B to provide mother and maternal grandparents an opportunity to engage in family therapy to resolve their differences – injunction limited to closed period to enable the mother and her parents to re-establish their relationship – injunction determined to be appropriate to the children’s welfare and in their best interests long term. |
| Legislation: Family Law Act 1975, ss.64(1), 65E, 67L, 67ZC, 67ZC(1), 67ZC(2), 69ZM, 69ZN, 69ZQ, 69ZR, 69ZT, Division 9, ss.68A, 68B(1), 68B(2), 68B(3), 68B(4) Evidence Act 1995, s.56 |
| Cases cited: HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16 Bhatt & Sant [2016] FamCA 327 Scott & Scott (1994) FLC 92-457 |
| Applicant: | MR BABIC |
| Respondent: | MS TAKALA |
| File Number: | CAC 1880 of 2015 |
| Judgment of: | Judge Tonkin |
| Hearing dates: | 29 & 30 May 2017 |
| Date of Last Submission: | 30 May 2017 |
| Delivered at: | Canberra |
| Delivered on: | 14 July 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Barker & Barker |
| Counsel for the Respondent: | Mr Stagg |
| Solicitors for the Respondent: | Capon & Hubert Lawyers |
ORDERS
Until 31 December 2018, the Father be and is hereby restrained from bringing [Y] born (omitted) 2011 and [X] born (omitted) 2010 (“the children”) into contact with the maternal grandparents Mr L Babic and Ms J Babic without the mother’s permission save that should either child request to communicate with one or either maternal grandparent by phone, Skype or Facetime the father shall facilitate that communication.
The mother shall take all necessary steps to organise family therapy and/or counselling with her parents to address any outstanding issues between the mother and her parents and towards re-establishing her relationship with her parents with a view to the mother facilitating the children spending…
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- BABIC & TAKALA [2017] FCCA 1631
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- [2017] FCCA 1631
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CaseChat Overview and Summary
The court was required to determine whether to grant the injunction sought by the mother, and if so, what form it should take, considering the ongoing conflict and the welfare and best interests of the children. The central legal issue was how to best manage the children's relationship with their maternal grandparents in the context of severe parental and intergenerational conflict.
Judge Tonkin reasoned that an injunction was appropriate to provide the mother and her parents an opportunity to engage in family therapy to resolve their differences, thereby ultimately serving the children's long-term welfare. The court made orders restraining the father from bringing the children into contact with the maternal grandparents until 31 December 2018, unless the mother permitted it, with an exception for facilitating communication via phone, Skype, or Facetime if requested by a child. The mother was ordered to organise family therapy with her parents to re-establish their relationship, with a view to her facilitating future contact. The parties were also restrained from discussing the limitations on grandparent time with the children, and the father was permitted to forward cards and gifts from the grandparents. Further orders were made by consent, including prohibitions on denigrating family members and restrictions on the father discussing certain matters with the children, alongside requirements for both parents to enrol in a post-separation parenting program.
Orders
Orders of the court
1.
Until 31 December 2018, the Father be and is hereby restrained from bringing [Y] born (omitted) 2011 and [X] born (omitted) 2010 (“the children”) into contact with the maternal grandparents Mr L Babic and Ms J Babic without the mother’s permission save that should either child request to communicate with one or either maternal grandparent by phone, Skype or Facetime the father shall facilitate that communication.
2.
The mother shall take all necessary steps to organise family therapy and/or counselling with her parents to address any outstanding issues between the mother and her parents and towards re-establishing her relationship with her parents with a view to the mother facilitating the children spending time and communicating with the maternal grandparents.
3.
The parties are hereby restrained from discussing with the children any limitation on the children spending time with their maternal grandparents.
4.
The father be at liberty to forward to the children cards and gifts from the maternal grandparents.
By Consent:
5.
Neither parent shall denigrate the other parent or any member of the other parents family or household in the presence or hearing of the children or allow any other person to do so.
6.
Without admission, the Father be and is hereby restrained from discussing with the children any matter related to any of the following:
(a) The Mother's address and living circumstances;
(b) The vehicle driven by the Mother;
(c) The financial circumstances of the Father; and
(d) The financial circumstances of the Mother.
7.
Within 28 days the parties provide written evidence to the other party of a post separation parenting program in which the party is enrolled to commence as soon as practicable.
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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