BACOTE & BACOTE - [2020] FCCA 262

FEDERAL CIRCUIT COURT OF AUSTRALIA

BACOTE & BACOTE

[2020] FCCA 262

Catchwords:
FAMILY LAW – Parenting – Father seeks week-about arrangement – Mother seeks that the children live with her and spend substantial and significant time with the father – Independent Children’s Lawyer supports the Mother’s proposal – Family Consultant recommends a build up to a week-about arrangement over time – orders made in accordance with the Mother and the Independent Children’s Lawyer’s proposal.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Goode v Goode [2006] FamCA 1346
Hall & Hall (1979) FLC 90-713
Johns & Jasapas [2016] FamCA 471

Applicant:

MS BACOTE

Respondent:

MR BACOTE

File Number:

DGC 2494 of 2017

Judgment of:

Judge Burchardt

Hearing dates:

6-7 February 2020

Date of Last Submission:

7 February 2020

Delivered at:

Dandenong

Delivered on:

14 February 2020

REPRESENTATION

Counsel for the Applicant:

Mr Marchetti

Solicitors for the Applicant:

Chris Woods & Associates

Counsel for the Respondent:

Self-represented

Solicitors for the Respondent:

Not applicable

Counsel for the Independent Children's Lawyer:

Ms Buchanan

Solicitors for the Independent Children's Lawyer:

Southern Family Law

ORDERS

All previous orders be and are hereby discharged.
The parties have equal shared parental responsibility for X born in 2007 and Y born in 2010 (“the children”).
The children live with the Mother.
The children spend time and communicate with the Father as follows:
(a)Each alternate week from the conclusion of school or 3:30pm on Friday until the commencement of school or 9:00am on Monday;
(b)Each alternate week from the conclusion of school or 3:30pm on Monday until the commencement of school or 9:00am on Tuesday;
(c)By telephone once per week when the children are not in his care for a period not exceeding 20 minutes on each occasion;
(d)On the Father’s and the children’s birthdays from the conclusion of school until 7:00pm if a school day and from 12:00pm until 4:00pm on a non-school day should the children not already be in his care;
(e)On Father’s Day from 5:00pm on the Saturday before Father’s Day until 5:00pm on Father’s Day in each year;
(f)During the Christmas period:
(i)In 2021 and each alternate year thereafter, from 3:00pm on Christmas Day until 3:00pm on Boxing Day;
(ii)In 2020 and each alternate year thereafter from 3:00pm on Christmas Eve until 3:00pm on Christmas Day;
(g)On New Year’s Eve as follows:
(i)In 2020 and each alternate year thereafter from 30 December 5:00pm until 1 January 5:00pm.
(h)During the term school holidays, for the week that follows the weekend the children would have been with the Father pursuant to the cycle established by Order 3(a) above for 7 nights commencing on the Friday at the conclusion of school or 3:30pm on the night of that weekend and concluding at 3:30pm on the Friday 7 nights later and the parent who has had the last weekend of the term holidays pursuant to the term time weekend cycle if that has not been interrupted by the holidays will have the children for the last weekend…

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 BACOTE & BACOTE

Details

AGLC: Bacote and Bacote [2020] FCCA 262
Case: [2020] FCCA 262
Decision Date: 14 February 2020

CaseChat Overview and Summary

In the matter of *BACOTE & BACOTE*, Judge Burchardt considered a dispute between the parents regarding the living arrangements and time spent with their two children. The father sought a week-about arrangement, while the mother proposed that the children live with her and spend substantial and significant time with the father. The Independent Children’s Lawyer supported the mother’s proposal, and a Family Consultant recommended a gradual transition to a week-about arrangement.

The court was required to determine the most appropriate parenting orders for the children, considering the recommendations of the Independent Children’s Lawyer and the Family Consultant, and the proposals of each parent. The central issue was to establish a living arrangement that best served the children's welfare and best interests.

Judge Burchardt made orders reflecting a shared parental responsibility for the children. The children were ordered to live with the mother, with specific provisions for the father to spend time with them on alternate weeks, including specific arrangements for weekends, public holidays, and school holidays. The court also made orders regarding communication, changeovers, and the exchange of information concerning the children's health and education. Injunctions were granted restraining the parents from discussing the orders with the children or denigrating the other parent. The order appointing the Independent Children’s Lawyer was discharged.

Orders

Orders of the court

All previous orders be and are hereby discharged.

The parties have equal shared parental responsibility for X born in 2007 and Y born in 2010 (“the children”).

The children live with the Mother.

The children spend time and communicate with the Father as follows:

(a) Each alternate week from the conclusion of school or 3:30pm on Friday until the commencement of school or 9:00am on Monday;

(b) Each alternate week from the conclusion of school or 3:30pm on Monday until the commencement of school or 9:00am on Tuesday;

(c) By telephone once per week when the children are not in his care for a period not exceeding 20 minutes on each occasion;

(d) On the Father’s and the children’s birthdays from the conclusion of school until 7:00pm if a school day and from 12:00pm until 4:00pm on a non-school day should the children not already be in his care;

(e) On Father’s Day from 5:00pm on the Saturday before Father’s Day until 5:00pm on Father’s Day in each year;

(f) During the Christmas period:

(i) In 2021 and each alternate year thereafter, from 3:00pm on Christmas Day until 3:00pm on Boxing Day;

(ii) In 2020 and each alternate year thereafter from 3:00pm on Christmas Eve until 3:00pm on Christmas Day;

(g) On New Year’s Eve as follows:

(i) In 2020 and each alternate year thereafter from 30 December 5:00pm until 1 January 5:00pm.

(h) During the term school holidays, for the week that follows the weekend the children would have been with the Father pursuant to the cycle established by Order 3(a) above for 7 nights commencing on the Friday at the conclusion of school or 3:30pm on the night of that weekend and concluding at 3:30pm on the Friday 7 nights later and the parent who has had the last weekend of the term holidays pursuant to the term time weekend cycle if that has not been interrupted by the holidays will have the children for the last weekend except that if that is the Father his time conclude no later than 24 hours prior to the recommencement of school for the term;

(i) Over the long summer school holiday period by agreement and failing agreement, as follows:

(i) On a week-about basis with the Father to have the week commencing on the Friday at the conclusion of school or 3:30pm on the night of that weekend and concluding on the Friday night 7 nights later on an alternating basis throughout the school holiday period.

(j) Such further and other times as agreed between the parties.

The father’s time pursuant to Order 3 above be suspended as follows;

(a) On the Mother’s birthday being from 12:00pm until 4:00pm should the children not otherwise be in her care with the Father to drop the children at the Mother’s home and the Mother to return the children to the Father’s home;

(b) On the children’s birthdays from the conclusion of school or 3:30pm until 7:00pm on a school day and from 12:00pm until 4:00pm on a non-school day should the children not otherwise be in her care;

(d) During the Christmas period:

(i) In 2020 and each alternate year thereafter, from 3:00pm on Christmas Day until 3:00pm on Boxing Day; and

(ii) In 2021 and each alternate year thereafter, from 3:00pm on Christmas Eve until 3:00pm on Christmas Day.

(e) On New Year’s Eve as follows:

(i) In 2021 and each alternate year thereafter from 30 December 5:00pm until 1 January 5:00pm.

The time the children spend with the Father pursuant to Order 3(a) and (b) above be suspended during all school holiday periods and recommence in the same cycle after the holidays as if the holidays had not interrupted the cycle.

For the purposes of changeover, where changeover does not occur at the children’s school, the Father will collect the children from the Mother at the commencement of his time and the Mother will collect the children from the Father at the conclusion of his time.

In the event of serious childhood illness or emergency, the parent with whom the children are with, contact the other parent forthwith to inform them.

Each parent keep the other informed of all specialist medical appointments arranged for the children providing the other parent the opportunity to also attend and/or contact the treating practitioner to be kept appraised of the child’s or children’s treatment.

10.

For the avoidance of doubt, this order expressly permits either parent to contact and discuss the child or children’s treatment with any medical or like practitioner.

11.

Both parties be permitted to liaise directly with the children’s school, the children’s sporting clubs, and any other extra-curricular activity bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress at their own expense.

12.

Each party is at liberty to attend at the child’s school or sporting club or any other extra-curricular activity bodies for the purposes of any function or activity normally attended by parents.

13.

Each party keep the other informed of their current residential address, mobile and/or landline telephone numbers and any email addresses and advise the other parent of any change thereto within 7 days of such change.

14.

Each parent be restrained by injunction from:

(a) Discussing these orders with the children or either of them;

(b) Denigrating the other parent or members of that parent’s family to or within the hearing of the children or either of them.

15.

The Order appointing the Independent Children’s Lawyer be discharged.

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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