BANHAM & BANHAM - [2020] FCCA 1201

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANHAM & BANHAM

[2020] FCCA 1201

Catchwords:
FAMILY LAW – Parenting – application in a case – parenting arrangements pursuant to Court Orders – risk to children by travelling during COVID-19 – application dismissed.

Legislation:

Family Law Act 1975 (Cth), s.102NA

Applicant:

MS BANHAM

Respondent:

MR BANHAM

File Number:

MLC 881 of 2015

Judgment of:

Judge McNab

Hearing date:

7 April 2020

Date of Last Submission:

7 April 2020

Delivered at:

Melbourne

Delivered on:

8 April 2020

REPRESENTATION

Counsel for the Applicant:

Ms Sergi

Solicitors for the Applicant:

Kennedy Partners

Respondent in Person

ORDERS

Orders 3.1 and 3.2 of the Orders made on 28 April 2015 be suspended during the currency of the Stage 3 “Stay at Home” restrictions or higher imposed by the Victorian Government (‘the government restrictions’), and during this period:
(a)the children X born in 2007 and Y born in 2007 (‘the children’) and the mother be at liberty to communicate with each other, whether by voice call, video call or electronic messaging, or to engage in online games and/or social media platforms:
(i)     during school holiday periods, as may be arranged between themselves;
(ii)    during school term time, as may be arranged between themselves each evening between the hours of 7.00 pm and 8.30pm; and
(iii)   such other times as may be agreed between the parties.
(b)the father do all acts and things required to ensure the children have available to them their own devices and charging equipment in ready and working order (save for charging, which the children are responsible for themselves) to facilitate such communication and/or online games or social media platforms.
Pending lifting of the government restrictions, and save for the arrangements between the mother and the children to facilitate their communication as provided by these Orders, neither party discuss further with the children these proceedings or the dispute between the parties in relation to the children spending time with the mother.
Upon the lifting of the government restrictions, the children spend such make-up time with the mother for time missed during holidays and term time, to be arranged as soon as practicable, as may be agreed between the parties in writing.
In the event of failure to agree on any time or communication arrangements, including make-up time, the parties have liberty to apply to the Court at short notice.
In the event the father is diagnosed with COVID-19 and is hospitalised or is too unwell to care for the children, the father forthwith inform the mother and the mother be at liberty to travel to Melbourne as may be permitted by the government imposed restrictions, to care for the children during the period that the children are required to self-isolate as a result of being in direct contact with the father.
The matter be adjourned to Federal Circuit Court of Australia in Melbourne on 11 June 2020 at 9.30am for Mention.

AND THE COURT NOTES THAT:

A.The mother acknowledges that on occasions the father may not be…

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 BANHAM & BANHAM

Details

AGLC: Banham and Banham [2020] FCCA 1201
Case: [2020] FCCA 1201
Decision Date: 8 April 2020

CaseChat Overview and Summary

In *Banham & Banham*, heard by Judge McNab, the mother sought to vary existing parenting orders due to concerns about the risk of children travelling during Stage 3 "Stay at Home" restrictions imposed by the Victorian Government due to COVID-19. The father opposed this application.

The central legal issue before the court was whether the existing parenting orders, which mandated the children spend time with the mother, should be suspended or modified in light of the public health crisis and the associated government restrictions. The court was required to balance the children's best interests, including their relationship with both parents, against the risks posed by travel and potential exposure to COVID-19.

Judge McNab reasoned that the prevailing government restrictions created an unacceptable risk to the children's health and safety if they were to travel. Consequently, the court ordered a suspension of the existing time-spending provisions of the parenting orders during the currency of the restrictions. Instead, the court facilitated communication between the children and the mother through electronic means, specifying times for such contact during school holidays and term time, and requiring the father to ensure the children had the necessary devices. The court also made provisions for make-up time once restrictions were lifted and addressed potential future contingencies, such as the father contracting COVID-19.

Orders

Orders of the court

Orders 3.1 and 3.2 of the Orders made on 28 April 2015 be suspended during the currency of the Stage 3 “Stay at Home” restrictions or higher imposed by the Victorian Government (‘the government restrictions’), and during this period:

(a) the children X born in 2007 and Y born in 2007 (‘the children’) and the mother be at liberty to communicate with each other, whether by voice call, video call or electronic messaging, or to engage in online games and/or social media platforms:

(i) during school holiday periods, as may be arranged between themselves;

(ii) during school term time, as may be arranged between themselves each evening between the hours of 7.00 pm and 8.30pm; and

(iii) such other times as may be agreed between the parties.

(b) the father do all acts and things required to ensure the children have available to them their own devices and charging equipment in ready and working order (save for charging, which the children are responsible for themselves) to facilitate such communication and/or online games or social media platforms.

Pending lifting of the government restrictions, and save for the arrangements between the mother and the children to facilitate their communication as provided by these Orders, neither party discuss further with the children these proceedings or the dispute between the parties in relation to the children spending time with the mother.

Upon the lifting of the government restrictions, the children spend such make-up time with the mother for time missed during holidays and term time, to be arranged as soon as practicable, as may be agreed between the parties in writing.

In the event of failure to agree on any time or communication arrangements, including make-up time, the parties have liberty to apply to the Court at short notice.

In the event the father is diagnosed with COVID-19 and is hospitalised or is too unwell to care for the children, the father forthwith inform the mother and the mother be at liberty to travel to Melbourne as may be permitted by the government imposed restrictions, to care for the children during the period that the children are required to self-isolate as a result of being in direct contact with the father.

The matter be adjourned to Federal Circuit Court of Australia in Melbourne on 11 June 2020 at 9.30am for Mention.

AND THE COURT NOTES THAT:

A. The mother acknowledges that on occasions the father may not be able to have the children fed dinner prior to 7.00 pm, in which case the children’s electronic time with the mother may need to commence later than 7.00 pm, and in this event, the father will advise the mother by email accordingly.

B. Pursuant to ss.65DA(2) and 62B 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 are set out in Annexure A and these particulars are included in these orders.

C. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

D. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

E. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

F. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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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