BALDWIN & PANTAZIS - [2020] FamCA 918

FAMILY COURT OF AUSTRALIA

BALDWIN & PANTAZIS

[2020] FamCA 918

FAMILY LAW – PARENTING – With whom the child shall live and spend time – Where the parties both propose equal shared parental responsibility – Where the parties live 150 kilometres apart – Where the parties both used illicit drugs until separation in 2017 – Where the mother developed a substance use disorder – Where the child lived with the parties until he was two years old – Where the Department of Communities, Child Safety and Disabilities Queensland approved the removal of the child into extended family care – Where the child then lived with the maternal aunt for four days and thereafter, with the paternal grandparents to date – Where the father has lived with the paternal grandparents for almost three years and is said to be the primary carer of the child in that household – Where the father proposes that the child live with him and his partner in B City – Where the mother proposes that the child live with her in Sydney – Where the child is due to start school next year – Where the child currently spends time with the mother for four nights/six days per fortnight – Where each party submits that the child is not now at an unacceptable risk of harm in the care of the other parent – Where minimising change to the arrangements which have been in place is determinative – Ordered equal shared parental responsibility and for the child to live with the father and spend time with the mother each alternate weekend.

Family Law Act 1975 (Cth) ss 60CC, 61DA

APPLICANT:

Mr Baldwin

RESPONDENT:

Ms Pantazis

FILE NUMBER:

NCC

2496

2017

DATE DELIVERED:

30 October 2020

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

8-11;14 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Harper

SOLICITOR FOR THE APPLICANT:

Waller Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Cummings SC

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

That all prior parenting orders in relation to X born … 2015 (“the child”) made in this Court and in the Federal Circuit Court are discharged.

Parental responsibility

That the parents shall have equal shared parental responsibility for the long term issues to be decided for the child.
That the mother and father will consult with one another about all matters concerning the child’s long-term care, welfare and development including but not limited to matters concerning:
(a)Health and medical needs;
(b)Education, including selection of the schools the child will attend; and
(c)Religion.
The mother and father will consult with each other about major long-term decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)Each will inform the other parent about the decision proposed to be made;
(b)Each will consult with the other with a view to reaching terms upon which they may agree; and
(c)Each will make a genuine effort to come to a joint decision with the…

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 BALDWIN & PANTAZIS

Details

AGLC: BALDWIN & PANTAZIS [2020] FamCA 918
Case: [2020] FamCA 918
Decision Date: 30 October 2020

CaseChat Overview and Summary

This decision concerns parenting orders made by Cleary J in relation to a child born in 2015. The dispute involved the arrangements for the child's residence, time with each parent, and parental responsibility.

The court was required to determine the specific orders regarding the child's living arrangements, the division of parental responsibility for long-term decisions, and the practicalities of communication, health, education, and travel arrangements between the parents.

Cleary J ordered that prior parenting orders be discharged and that the parents have equal shared parental responsibility for long-term issues, requiring them to consult on matters of health, education, and religion. The child was ordered to live with the father, with specific provisions for the mother's time with the child, including during school terms and holidays. The orders also detailed arrangements for changeovers, overseas travel, and the exchange of information between parents regarding the child's welfare.

Orders

Orders of the court

That all prior parenting orders in relation to X born … 2015 (“the child”) made in this Court and in the Federal Circuit Court are discharged.

Parental responsibility

That the parents shall have equal shared parental responsibility for the long term issues to be decided for the child.

That the mother and father will consult with one another about all matters concerning the child’s long-term care, welfare and development including but not limited to matters concerning:

(a) Health and medical needs;

(b) Education, including selection of the schools the child will attend; and

The mother and father will consult with each other about major long-term decisions to be made in the exercise of their equal shared parental responsibility as follows:

(a) Each will inform the other parent about the decision proposed to be made;

(b) Each will consult with the other with a view to reaching terms upon which they may agree; and

That the mother shall be responsible for the daily care, welfare and development of the child when he is spending time with her.

That the father shall be responsible for the daily care, welfare and development of the child when the child is living with him.

The father may enrol the child to commence school in 2021 in the B City area and shall provide a copy of these orders to the principal of the relevant school.

That the mother and father will:

(a) Keep the other parent informed at all times of their current residential address, contact telephone numbers and email address and inform the other within 24 hours of any change;

(b) Keep the other parent informed via email of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;

(c) Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the child’s medical information to the other parent;

(d) That the parents authorise the school attended by the child to give to each parent information about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at that parent’s costs).

That in the event the child is prescribed short term medication for a particular form of treatment which is required to continue into a period when the other parent will be caring for the child, any medication or materials required for treatment is to be sent with the child along with the description of the condition for which it is required and the appropriate dosage or method of treatment.

10.

That in the event the child is prescribed long term medication, then the medication or materials required for treatment is to be obtained and maintained by each parent to administer to the child in accordance with specific medical advice given by the relevant prescribing medical practitioner.

11.

That both parents are entitled to receive, at their own request and expense, from the child’s school, or health practitioners, any and all information in relation to the child’s health, education and welfare. This order will constitute an authority to the child’s medical/health/dental practitioners and school to provide that information.

12.

That each party be at liberty to attend the child’s school for the purpose of attending any activity or occasion routinely attended by parents and for the purpose of discussing the child’s academic progress with the relevant teaching staff.

13.

That a party may enrol the child into an extra-curricular activity that impacts upon the other party’s time with the child only if expressly agreed to in advance by the other party in writing. In the event that a party does enrol the child unilaterally into such an activity then the child will only participate in that activity during the time the child spends with that parent who organised the activity.

14.

That if the child is enrolled by agreement in an extra-curricular activity or sporting activity (whether school based or non-school based), then both parents will ensure that the child attends that activity, any training for the activity or any events associated with that activity during the period when the child is in their care.

Residence

15.

That the child shall live with the father.

Time and Communication

16.

The child shall spend time with the mother, unless otherwise agreed, as follows:

(a) Until the commencement of Term One at school in 2021:

(i) Each alternate weekend [including the period from 10.00 am Thursday 24 December to 6.00 pm Monday 28 December 2020] from 10.00 am Thursday until 6.00 pm Monday commencing Thursday 12 November 2020 concluding with the weekend from Thursday 21 January to Monday 25 January 2021.

(b) From the commencement of Term One in 2021:

(i) During school terms:

1. From after school on Friday 5 February 2021 to 4.00 pm on Sunday 7 February 2021 and each alternate weekend thereafter, re-commencing on the second weekend of each term when the child has spent the second half of the previous holiday period with the mother and on the first weekend of term when the child has spent the first half of the previous holiday period with the mother.

(ii) During school holiday periods:

2. For one half of each school holiday period being the first half in even numbered years (to include Christmas) commencing in 2022 and the second half in odd numbered years commencing in 2021.

(iii) At special times:

3. In the event that Mother’s Day falls on a weekend when the child is not due to spend time with the mother, then the child shall spend time with the mother on that weekend, as an additional weekend, from after school Friday to 4.00 pm Sunday.

4. In the event that Father’s Day falls on a weekend that the child would otherwise spend with the mother that period of weekend time shall not take place and the child shall remain with the father.

5. At such other and/or additional times as are agreed between the parties.

Changeovers

17.

Changeovers will occur at school, and if a non-school day at the father’s residence, by the mother or her nominee collecting the child from school or the father’s residence at the commencement of the child living with the mother and the father or his nominee collecting the child from the mother’s residence at the conclusion of the child living with the mother.

Overseas Travel

18.

That the mother and father do all acts and things and sign all documents within 14 days of a request from the other parent for the child to be issued a passport (or any renewal of passport) with the costs to be shared equally and the father to hold the passport.

19.

That the father is to hold the child’s passport on his undertaking to use such for the purposes of and compliance with Order 20 below. In the event that the mother wishes to holiday with the child outside Australia, the father will forthwith deliver to the mother the child’s passport upon the mother complying with Order 20 below.

20.

That unless otherwise agreed, when the child is living with a parent during school holidays, that parent will be at liberty, during their school holiday time, to take the child to an overseas Convention country and in relation to that travel:

(a) The travelling parent will provide the other parent with a copy of their itinerary for the trip including but not limited to departure and return times and dates, a contact telephone number for the travelling parent and the child and the address at which they will predominantly be based (provided that they will not be required to provide details of every address at which the child will stay) at least 30 days prior to scheduled departure;

(b) The travelling parent will then provide to the other parent a copy of their return airline ticket for the child; and

(c) During the trip, the travelling parent will arrange for the child to have electronic communication with the other parent by way of telephone, Skype or FaceTime on at least two occasions each week.

21.

That each parent be restrained from removing and/or causing the child to be removed from the Commonwealth of Australia to a non-Convention Country (a non-Convention Country is a country which is not listed in Regulation 10 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) unless agreed in writing between the parties, or by order of a Court and in the event the parent has a stopover flight in a non-Convention Country, then that parent undertakes not to leave the airport during that stopover.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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