FEDERAL CIRCUIT COURT OF AUSTRALIA
| BALSANO & LABANE | [2019] FCCA 3494 |
| Catchwords: FAMILY LAW – Parenting application – relocation – where parties agree in interim orders to restrain either party from relocating 15kms from Region E – where proceeding set down for trial – where property and spousal maintenance proceedings resolved – where respondent’s mother, father and respondent jointly own Suburb D property – where respondent resides in Suburb D property – where Suburb D property sold – where respondent’s mother buys property 144kms from Region E – where, before trial, respondent vacates residence, moves to parent’s residence and then to new premises – where respondent alleges family violence and escalates allegations immediately before trial – where DHHS closes file on entry in relation to each of its investigations – applicable principles – where relocation is in best interests of child by reason that respondent is primary carer – where relief granted aims to accommodate child’s relationship with applicant. |
| Legislation: Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61A, 61B, 61C, 61D, 61F, 61DA, 61DAB, 64A, 64B, 64D, 65A, 65AA, 65D, 65DAA, 68P, 68Q |
| Cases cited: A & A (Relocation Approach) (2000) FLC 93-035 AMS v AIF (1999) 199 CLR 160 |
| Applicant: | MR BALSANO |
| Respondent: | MS LABANE |
| File Number: | MLC 14092 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 27 November 2019 |
| Date of Last Submission: | 27 November 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 9 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms P. Villella |
| Solicitors for the Applicant: | Aughtersons |
| Counsel for the Respondent: | Ms L. Johnson |
| Solicitors for the Respondent: | Zenith Lawyers and Consultants |
THE COURT ORDERS THAT:
The parties have equal shared parental responsibility for the care, welfare and development of the child, X, born in 2014 (the Child).
The…
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- BALSANO & LABANE [2019] FCCA 3494
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CaseChat Overview and Summary
The court was required to determine the best interests of the child, X, in light of the proposed relocation and the existing interim orders. Specifically, the court had to consider whether the relocation was in the child's best interests, given the respondent was the primary carer. The court also needed to balance the child's need for a meaningful relationship with both parents against the practicalities of the respondent's proposed move and any allegations of family violence. The ultimate aim was to craft orders that accommodated the child's relationship with the applicant while addressing the respondent's role as primary carer.
The court exercised its broad discretion under section 65D of the Family Law Act 1975 (Cth), which mandates that the best interests of the child are the paramount consideration. This involved an overall assessment of various statutory and case-specific factors, including the benefit of a meaningful relationship with both parents and the need to protect the child from harm. The court found that the relocation was in the child's best interests, primarily because the respondent was the primary carer. The court's reasoning indicated a focus on accommodating the child's relationship with the applicant within the new arrangements.
The court made orders for equal shared parental responsibility, with the child to live with the respondent. The orders detailed specific arrangements for the child to spend time with the applicant, including during school terms, holidays, and special occasions, with provisions for communication and travel. Notably, the respondent was restrained from changing the child's residence more than 5 kilometres from Town C, and measures were put in place to prevent the child's removal from Australia. The application filed on 2 September 2019 was dismissed, and all previous parenting orders were discharged.
Orders
Orders of the court
1.
The parties have equal shared parental responsibility for the care, welfare and development of the child, X, born in 2014 (the Child).
2.
The Child live with the respondent.
3.
The Child spend time with the applicant in 2019 as follows:
(a) in week one, commencing on Thursday, 12 December 2019, from 2.00pm on Thursday until 10.00am on Monday and on each alternative weekend thereafter;
(b) in week two, commencing on Thursday, 19 December 2019, from 2.00pm on Thursday until 10.00am on Friday and on each alternative weekend thereafter.
4.
The Child’s spend time with the applicant at Christmas be as follows:
(a) Christmas 2019: from 3.00pm on 24 December 2019 until 3.00pm on Christmas Day and in each alternate year thereafter;
(b) Christmas 2020: from 3.00pm on Christmas Day until 3.00pm on Boxing Day and in each alternate year thereafter;
5.
The Child’s future spend time with the applicant be as follows:
(a) subject to paragraph 4(a) of this Order, for half of the long summer holidays as agreed in writing, and failing agreement, on a week about basis, commencing from the end of final term;
(b) from the commencement of school in 2020: from the conclusion of school on Friday (from the conclusion of school on Thursday, if Friday is not a school day), until 3.00pm on Sunday (or 3.00pm on Monday, if the Monday is a non-school day), and each alternative weekend thereafter;
(c) each Easter, from 5.00pm on Easter Thursday until 5.00pm on Easter Tuesday;
(d) for half of all school term holidays, to be agreed in writing between the parties, and failing agreement, for the first half of such holidays, commencing on the last day of the school term until 5.00pm on the middle Sunday of that term holiday.
6.
Until the Child commences school in 2020, unless otherwise agreed in writing, changeover shall occur at Suburb A.
7.
Upon the Child commencing school in 2020, unless otherwise agreed in writing, where spend time is to commence at the conclusion of:
(a) a school day, the applicant to collect the Child from school at the commencement of his time, and the respondent is to collect the Child from Suburb B McDonald’s;
(b) a non-school day, the applicant to collect the Child from Suburb A at the commencement of his time, and the respondent is to collect the Child from Suburb A at the end of his time.
8.
When the Child is not in the applicant’s care, the Child’s communication with the applicant whether by FaceTime, Skype or any other digital or video conferencing facility occur between 5.00pm and 5.30pm, on each Tuesday, Thursday and Sunday evening and on special days (including Child’s birthday, Father’s day and the father’s birthday), with:
(a) the applicant to contact the respondent’s mobile phone, iPad or Skype address by computer and
(b) the respondent to ensure that the call is answered and the Child has appropriate privacy when communicating with the applicant.
9.
The Child to spend time and communicate with the applicant at such other times as are agreed between the parties, including on special occasions such as the Child’s and father’s birthdays and Father’s day.
10.
The Child be enrolled in Town C Primary School with effect from term one, 2020 and beyond.
11.
The applicant and respondent shall refrain from making critical derogatory remarks about each other or members of each other’s families in the presence or within the hearing of the Child and the applicant and respondent shall do all things as may be reasonably necessary to ensure that no other person makes any critical or derogatory remark about the applicant or respondent or members of their respective families in the presence or hearing of the Child.
12.
For the purposes of communication about parenting matters, the parties use a downloadable application relating to parenting arrangements such as My-Mob, to be used only by the parents who are restrained by injunction from permitting any third-party to use such application or intervene in their communications.
13.
The applicant and respondent immediately inform each other should the Child sustain any serious illness or injury while in their care and keep the other properly informed as soon as is reasonably practicable, of the Child’s diagnosis, treatment and prognosis, together with the name, address and contact details of the person[s] providing treatment and the location at which the Child is receiving such treatment.
14.
The parties shall advise each other of the current contact details, including phone numbers, email addresses and residential addresses, and shall keep each other informed of any changes within 48 hours.
15.
Each of the applicant and respondent shall be entitled to:
(a) receive notices, school reports, photographs and other related material from any school that the Child attends; and
(b) attend a school function, parent/teacher meeting or similar event, including but not limited to all extracurricular activities at which parental participation and/or attendance may be required or which is encouraged irrespective of with whom the Child is living at that time.
16.
The respondent be restrained whether by herself her servants or agents or howsoever otherwise from changing the residence of the Child a distance of more than 5kms from Town C, in the State of Victoria.
17.
If either party proposes to travel with the Child out of the State of Victoria, they shall provide notice to the other party not less than three weeks prior to any such interstate travel and to include the following information:
(a) the proposed commencement and return dates of the travel;
(b) the flight itinerary (outbound and return);
(c) copies of pre-paid return flight tickets; and
(d) appropriate contact details for any accommodation in which the Child will be staying.
18.
Subject to paragraph (19) of this Order the respondent, whether by herself, her servants, her agents or howsoever otherwise be and is hereby restrained by injunction from removing, attempting to remove or causing or permitting the removal or attempted removal of the child X, born in 2014 from the Commonwealth of Australia.
19.
Paragraph (18) of this Order shall cease to have effect 5 years after the date on which it is made or as provided by any further order.
20.
The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and hereby empowered to take all steps as may be necessary to give full effect to these orders.
21.
Subject to paragraph (18) of this Order, the Court requests that the Australian Federal Police place the name of the child X, born in 2014 on the Watch List at all points of international arrival and departure in Australia for the purpose of preventing removal of the Child from Australia in breach of these orders.
22.
Pursuant to s 68P(2)(a) of the Act, to the extent that this Order may be inconsistent with an Interim Intervention Order that has been made by a Magistrates’ Court (Intervention Order):
(a) this Order prevails over and operates according to its terms;
(b) that Intervention Order is invalid, pursuant to s 68Q(1) of the Act.
23.
The parties be at liberty to provide this judgment to a state court.
24.
The application in a case filed on 2 September 2019 be dismissed.
25.
All other previous parenting orders be discharged.
26.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in this Order.
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
The discretion conferred on a court by s 65D to make such parenting orders as it thinks proper is broad. In Bondelmonte v Bondelmonte,[15] the High Court said of s 65D:A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the Court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (emphasis added)[15] (2017) 259 CLR 662 at [32]. The power created by s 65D confers a largely unfettered discretion, albeit one that must be exercised judicially.[16] At the same time, the court may, in the interests of consistency, provide guidelines which inform the proper exercise of discretion.[17] The ambit of the discretion explains why a court will not interfere with such orders, merely because it might have taken a different view of the matter.[18] The court’s discretion must also be exercised having regard to the objects and principles stated in s 60B.[16]Cf Norbis & Norbis (1986) 161 CLR 513, 519 (Mason and Deane JJ) 536 (Brennan J agreeing), 522-533 (Wilson and Dawson JJ).[17]Cf Morton & Berry (2014) FLC 93-613, [21]-[24] (May, Ainslie-Wallace and Watts JJ) citing Norbis.[18] CDJ v VAJ (1998) 197 CLR 172, [151]-[152] (McHugh, Gummow and Callinan JJ) However, the discretionary power conferred by s 65D(2) to make a parenting order is subject to s 65AA of the Act.[19] Section 65AA confirms that, by s 60CA, the court must have regard to the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order. By this route, the obligation in s 60CA is engaged in the exercise of power under s 65D(2). This is because an order made under s 65D is a ‘parenting order’. Further, where the court makes a parenting order for equal shared parenting responsibility, the discretion conferred by s 65D is not at large but must be exercised in accordance with the imperative requirements of s 65DA.[20][19] Reid & Lynch (2010) FLC 93-448, [232]-[233] (O’Ryan J, Finn and Strickland JJ agreeing).[20]Dundas & Blake [2013] FamCAFC 133, [56]; Mellick & Mellick [2014] FamCAFC 236, [58] (see below). In determining the best interests of a child, there are certain primary considerations which the court must take into account: sub-s 60CC(2). The court must consider: (a)the benefit to the children of having a meaningful relationship with both of their parents; and(b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.See ss 4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations). Additional considerations are prescribed by sub-s 60CC(3)(a)-(m).