BABINGTON & BABINGTON - [2015] FCCA 339

FEDERAL CIRCUIT COURT OF AUSTRALIA

BABINGTON & BABINGTON

[2015] FCCA 339

Catchwords:
FAMILY LAW – Application for parenting orders – parents agree on orders save as to long term issues on education – dispute over school – determination of issue based on parental responsibility.

Legislation:

Family Law Act1975 (Cth), ss.60B, 60CC, 61DA

Beard & McCarthy [2009] FamCA 73
Garzelli & Lewis [2014] FamCA 55
Hall & Hall (1979) FLC 90-713

Friscioni & Friscioni [2010] FamCAFC 108
Re G: Children’s Schooling (2000) FLC 93-025
Eyton & Eyton & Ors (2013) FamCA 657
Eden & Eden-Proust [2011] FamCAFC 138
Bilz & Breugetran [2013] FamCA 578
Reiner & Reiner [2009] FamCA 926
Doherty & Doherty [2014] FamCAFC 20

Applicant:

MR BABINGTON

Respondent:

MS BABINGTON

File Number:

DGC 3330 of 2013

Judgment of:

Judge O’Sullivan

Hearing dates:

29 & 30 January 2015

Date of Last Submission:

30 January 2015

Delivered at:

Dandenong

Delivered on:

6 February 2015

REPRESENTATION

Counsel for the Applicant:

Mr Stanley

Solicitors for the Applicant:

Waters Lawyers

Counsel for the Respondent:

Ms Juneja

Solicitors for the Respondent:

Mepstead Lawyers

ORDERS

The mother have sole parental responsibility for all educational decisions concerning the child, MS BABINGTON born

(omitted) 2004 (“the child”) and otherwise the mother and father have equal shared parental responsibility for all other long term decisions effecting the child.
That for the purposes of all educational issues in relation to the child, before making any decision on educational issues for the child the mother shall consult the father by email advising him in advance of any decisions proposed by her in respect of the child and considering any response before making a decision.
That the child live with the mother.
That the child spend time and communicate with the father as follows:
(a)
each alternate Wednesday from the conclusion of school (or

3.30 pm if a non-school day) until the commencement of school the following Monday (or 9.00 am if a non-school day).
(b)half of all school holiday period as agreed between the parties and failing such agreement for the child to spend time with the father for the first half of the school term holidays commencing at the conclusion of school on the last day of school term to 5.00 pm 7 consecutive days later and the second half of the long summer school holidays commencing at 10.00 am on the day that falls at the midpoint of the said holidays to be commenced of school the first term.
(c)during the Christmas festival as follows:
(i)
in 2015 and each odd numbered year thereafter from

4.00 pm Christmas Day until 6.00 pm Boxing Day;
(ii)
in 2016 and each even numbered year thereafter from

4.00 pm Christmas Eve until 4.00 pm Christmas Day.
(d)on the child’s birthday ((omitted)) as follows:
(i)from between 4.00 pm and 6.00 pm if a school days.
(ii)from 10.00 am until 2.00 pm if a non-school day.
(e)on Father’s Day from 4.00 pm on the Saturday proceeding Father’s Day until the commencement of…

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.

Continue reading BABINGTON & BABINGTON

Details

AGLC: Babington and Babington [2015] FCCA 339
Case: [2015] FCCA 339
Decision Date: 6 February 2015

CaseChat Overview and Summary

In the matter of BABINGTON & BABINGTON, heard before Judge O’Sullivan, the dispute concerned parenting orders for the child, MS BABINGTON. The orders addressed issues of parental responsibility, the child's living arrangements, time spent with each parent, communication, and other related matters.

The court was required to determine the extent of parental responsibility for educational decisions and other long-term decisions concerning the child. It also needed to establish the specific arrangements for the child's time with each parent, including during school holidays and special occasions, as well as provisions for communication, notification of illness, and international travel. Further issues included the requirement for parents to attend a post-separation parenting course and to refrain from denigrating each other in the child's presence.

The court ordered that the mother have sole parental responsibility for all educational decisions concerning the child, while both parents share equal responsibility for all other long-term decisions. The child was ordered to live with the mother, with specific arrangements for the child to spend time and communicate with the father, including alternate Wednesdays, half of all school holidays, and specific times during Christmas and on the child's birthday and Father's Day. The orders also stipulated that both parents attend a post-separation parenting course, refrain from denigrating each other, and provide necessary information for international travel. All extant applications were dismissed.

Orders

Orders of the court

The mother have sole parental responsibility for all educational decisions concerning the child, MS BABINGTON born

(omitted) 2004 (“the child”) and otherwise the mother and father have equal shared parental responsibility for all other long term decisions effecting the child.

That for the purposes of all educational issues in relation to the child, before making any decision on educational issues for the child the mother shall consult the father by email advising him in advance of any decisions proposed by her in respect of the child and considering any response before making a decision.

That the child live with the mother.

That the child spend time and communicate with the father as follows:

(a)

each alternate Wednesday from the conclusion of school (or

3.30 pm if a non-school day) until the commencement of school the following Monday (or 9.00 am if a non-school day).

(b) half of all school holiday period as agreed between the parties and failing such agreement for the child to spend time with the father for the first half of the school term holidays commencing at the conclusion of school on the last day of school term to 5.00 pm 7 consecutive days later and the second half of the long summer school holidays commencing at 10.00 am on the day that falls at the midpoint of the said holidays to be commenced of school the first term.

(i)

in 2015 and each odd numbered year thereafter from

4.00 pm Christmas Day until 6.00 pm Boxing Day;

(ii)

in 2016 and each even numbered year thereafter from

4.00 pm Christmas Eve until 4.00 pm Christmas Day.

(d) on the child’s birthday ((omitted)) as follows:

(i) from between 4.00 pm and 6.00 pm if a school days.

(ii) from 10.00 am until 2.00 pm if a non-school day.

(e) on Father’s Day from 4.00 pm on the Saturday proceeding Father’s Day until the commencement of school the Monday following Father’s Day.

(f) such and other times as agreed between the parties.

That the child spend additional time with the mother as follows:

(a) during the Christmas festival:

(i)

in 2015 and each odd numbered year thereafter from

4.00 pm Christmas Eve until 4.00 pm Christmas Day;

(ii) in 2016 and each even year thereafter from 4.00 pm on Christmas Day until 4.00 pm Boxing Day.

(b) on the child’s birthday as follows:

(i) from 6.00 pm if a school day;

(ii) from 2.00 pm on a non-school day.

(c) on Mother’s Day from 4.00 pm on the Saturday preceding Mother’s Day to the commencement of school the following Monday.

(d) such further and other times as agreed between the parties.

That both parties be at liberty to communicate with the child via mobile telephone at reasonable times and both parties ensure that the child’s phone is able to take such calls.

That both parties enrol, attend and complete a post separation parenting course and provide a certificate of completion to the solicitor for the other party.

That in the event that changeover cannot take place at the child’s school, the parties collect and deliver the child at the (omitted) Shopping Centre.

That both parties be at liberty to attend school events and receive school notices ordinarily provided to or attended by parents.

10.

That each party notify the other as soon as practicable of any illness, injury or condition sustained by the child which requires medical attention and provide to the other party details of such illness, injury, condition and treatment including details of the medical practitioner.

11.

That both parties, their servants and agents be and are hereby restrained from denigrating the other party in the presence of hearing of the child or from permitting any other person from doing so.

12.

That both parties do all such things necessary for the child to obtain a passport.

13.

That in the event that either party intend to travel internationally with the child, that the party travelling provide to the other parent the following information not less than 4 weeks prior to the departure:

a) a detailed itinerary;

b) contact details for the child during the travel period.

14.

That all extant applications be otherwise dismissed and the proceedings be removed from the Pending Cases List.

15.

Pursuant to s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.

AND THE COURT NOTES:

16.

The parties will encourage and facilitate the child’s extra-curricular activities including by delivering and collecting the child from such activities.

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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