BANIK & PERES - [2020] FamCA 468

FAMILY COURT OF AUSTRALIA

BANIK & PERES

[2020] FamCA 468

FAMILY LAW – CHILDREN – Final Parenting Orders – Where the mother seeks an increase in time to equal time broken up in a 5/2/5/2 regime – Where the father seeks six nights a fortnight with the mother and eight nights a fortnight with him – Where the mother seeks to travel overseas with the children – Where the mothers’ proposal for time is supported by the Expert Report writer and found to be Orders in the children’s best interests – Orders made allowing both parties to travel overseas with the children including to India.

Family Law Act 1975 (Cth) ss. 60CC(2), 60CC(3), 64B, 65DAA, 65DAA(5)

Baboor & Reema and Ors [2020] FamCA 227
DeLuca & Farnham and Anor [2019] FamCAFC 100
Goode v Goode [2006] FamCA 1346
Line and Line [1997] FLC 92-729
MRR v GR [2010] HCA 4

APPLICANT:

Ms Banik

RESPONDENT:

Mr Peres

FILE NUMBER:

SYC

3166

2017

DATE DELIVERED:

12 June 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

11, 12 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell SC

SOLICITOR FOR THE APPLICANT:

Mark Hanna Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Coleman SC

SOLICITOR FOR THE RESPONDENT:

Doolan Wagner Family Lawyers

Orders

The father and the mother shall have equal shared parental responsibility for the children X born … 2011 and Y born 22 October 2014 (“the children”). In doing so they shall consult each other and make joint decisions about the duties, powers, responsibilities and authority for the children.
The children shall live with each of the parents during the school term in the following arrangement:
(a)With the father in Week 1, from 9 am on Monday to 3 pm on Wednesday; and from 9 am on Friday of Week 1 to 3 pm until Wednesday in Week 2.
(b)With the mother in Week 1, from 3 pm on Wednesday to 9am on Friday, in Week 2, from 3 pm on Wednesday to 9 am on the following Monday.
(c)Commencing from when Y attends high school and continuing thereafter, on a week-about basis, with changeover to occur before school Monday, or as the parents otherwise agree in writing.
Time during school term is suspended for all school holiday periods.
For school holidays in Term time:
(a)In even numbered years with the father for the first half and with the mother in the second half or as agreed; and
(b)In odd numbered years with the mother for the first half and with the father in the second half or as agreed.
For the Christmas school holidays as agreed between them in writing, but failing agreement:
(a)In 2020/21, on a week-about basis with the father to have the first week and the mother the second week;
(b)In 2021/22, on a two-week-about basis with the mother to have the first two weeks period and the father the second;
(c)In 2023/24, and subsequent odd numbered years, with the father for…

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.

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Details

AGLC: BANIK & PERES [2020] FamCA 468
Case: [2020] FamCA 468
Decision Date: 12 June 2020

CaseChat Overview and Summary

This decision concerns the parenting arrangements for two children, X and Y, and was determined by Henderson J. The dispute involved the father and mother seeking orders regarding the children's living arrangements, time spent with each parent, school holidays, birthdays, and international travel.

The court was required to determine the specific terms of equal shared parental responsibility, including how the parents would consult and make joint decisions. Further issues included the precise schedule for the children living with each parent during school terms and holidays, arrangements for birthdays and significant public holidays, and the conditions under which international travel by one parent with the children would be permitted. The court also needed to address the renewal of the children's passports and the process for resolving future disputes.

Henderson J made detailed orders establishing equal shared parental responsibility, requiring the parents to consult and make joint decisions. The orders set out a complex schedule for the children's living arrangements, alternating between parents during school terms and providing specific arrangements for school holidays, including Christmas and other public holidays, with provisions for future years. The court also stipulated conditions for international travel, requiring advance notice, provision of travel details, and insurance, and made specific orders for the mother's travel to India and the United States, including financial security for the India trip. Further orders addressed passport applications, relocation restrictions, and mandatory family dispute resolution before commencing legal proceedings.

Orders

Orders of the court

The father and the mother shall have equal shared parental responsibility for the children X born … 2011 and Y born 22 October 2014 (“the children”). In doing so they shall consult each other and make joint decisions about the duties, powers, responsibilities and authority for the children.

The children shall live with each of the parents during the school term in the following arrangement:

(a) With the father in Week 1, from 9 am on Monday to 3 pm on Wednesday; and from 9 am on Friday of Week 1 to 3 pm until Wednesday in Week 2.

(b) With the mother in Week 1, from 3 pm on Wednesday to 9am on Friday, in Week 2, from 3 pm on Wednesday to 9 am on the following Monday.

(c) Commencing from when Y attends high school and continuing thereafter, on a week-about basis, with changeover to occur before school Monday, or as the parents otherwise agree in writing.

Time during school term is suspended for all school holiday periods.

For school holidays in Term time:

(a) In even numbered years with the father for the first half and with the mother in the second half or as agreed; and

(b) In odd numbered years with the mother for the first half and with the father in the second half or as agreed.

For the Christmas school holidays as agreed between them in writing, but failing agreement:

(a) In 2020/21, on a week-about basis with the father to have the first week and the mother the second week;

(b) In 2021/22, on a two-week-about basis with the mother to have the first two weeks period and the father the second;

(c) In 2023/24, and subsequent odd numbered years, with the father for the first half of the holidays calculated from the last day of school until the mid-point of the holidays and the mother in the second half of the holidays until the morning of the first day of school;

(d) In 2024/25, and subsequent even numbered years, with the mother for the first half of the holidays calculated from the last day of school until the mid-point of the holidays and the father for the second half of the holidays until the morning of the first day of school;

(e) Within six (6) months of the published date upon which the Festival of Diwali falls, the mother shall advise the father of said date and the children shall come into the mother’s care, in the event they are not otherwise in her care, at 9 am of that day and they shall be returned to the father’s care at 9 am on the next day;

(f) Within six (6) months of the published date of the Holi festival, the mother shall advise the father of said date and the children shall come into the mother’s care, in the event they are not otherwise in her care, at 9 am of that day and they shall be returned to the father’s care at 9 am the next day; and

(g) Within six (6) months of the published date upon which the next Good Friday falls, the father shall advise the mother of said date, and the children shall come into his care, in the event that they are not otherwise in his care, at 9 am of that date and they shall be returned to the mother’s care at 3 pm on Easter Sunday.

Notwithstanding any other Order, the children spend time with the parties as follows:

(a) On each child’s birthday, both children to spend time with the parent with whom they would not otherwise be living from 3 pm to 7 pm;

(b) With the father on the father’s birthday from 8 am to 9 am the following day;

(d) With the mother from 9 am Saturday before Mother’s Day to before school the Monday after Mother’s Day;

(e) With the father from 9 am Saturday before Father’s Day to before school the Monday after Father’s Day;

(f) In even years, with the mother from 9 am Christmas Eve to 3 pm Christmas Day and with the father from 3 pm Christmas Day to 7 pm Boxing Day; and

(g) In odd years, with the father from 9 am Christmas Eve to 3 pm Christmas Day and with the mother from 3 pm Christmas Day to 7 pm Boxing Day.

For the purpose of these Orders:

(a) “School” includes preschool.

(b) “School day” means a day upon which the children are attending school.

(d) When changeover does not occur at school, time shall commence and conclude by the parent with whom the children are living/spending time with delivering them to the other parent’s residence.

(e) School holiday periods shall commence at 3 pm on the last day of school which the children are required by the school to attend for the school term.

(f) School holiday periods shall conclude at 9 am on the first day of school which the children are required by the school to attend for the school term.

(g) The mid-point of the holiday periods occurring at the end of Term 1, 2 and 3 shall be taken to be 5 pm on the middle Saturday of the period;

(h) Changeover during the Christmas school holiday periods in 2020/21 and thereafter shall occur at 5 pm each Friday; and

(i) Each parent shall notify the other immediately of any medical emergency, serious injury or illness involving one, or both, of the children should it occur whilst a child is in their care.

Each parent is at liberty to take the children on a holiday outside of the Commonwealth of Australia, on the following terms and conditions:

(a) The parent wishing to travel shall provide the other with at least two (2) months’ notice in writing of their intention to do so, including the intended country/ies of travel and the planned dates for travel.

(b) One (1) month prior to the date of departure, the parent travelling with the children shall provide to the other parent:

(i) A copy of the children’s return travel itinerary (including return airfare tickets);

(ii) Comprehensive travel insurance for the children;

(iii) The location/s of where the children will be staying during their time overseas; and

(iv) A telephone number on which the children can be contacted whilst overseas.

(c) Two (2) weeks prior to the date of departure (if the mother is travelling with the children) the father shall provide to her the children’s passports.

The mother is permitted to travel with the children to India on 5 April 2021 to meet her father and other family members and holiday, and is to return to Sydney with the children no later than 18 April 2021. The mother’s travel is conditional upon her placing a bond of $30,000 at least 7 days prior to departure to be held on trust with the father’s solicitor with her bond to be returned to her forthwith upon the children’s arrival in Australia.

10.

In exchange for the time allowed for travel in Order 9 above, the children shall spend time with the father throughout the entirety of the June school holidays in 2021.

11.

The mother is permitted to travel with the children to the United States on 17 September 2021 and is to return to Sydney with the children no later than 4 October 2021.

12.

In exchange for the extra week allowed for the mother in Order 11 above, the children are to spend time with the father for the first week of the Christmas school holidays in 2021 in addition to the time he would have otherwise spend with them pursuant to these Orders.

13.

In relation to travel approved in Orders 9 and 11, the mother is to provide the father with the details required at least one month prior to travel.

14.

The parents are to apply for and/or renew the children’s passports by 1 December 2020. Each parent shall contribute 50 per cent of the cost of each passport application or renewal, and any other associated costs, such as passport photos.

15.

Neither parent shall relocate the permanent residence of the children from Sydney except with the explicit written permission of the other parents.

16.

In the event a dispute between the mother and father cannot be settled in private discussion or by written correspondence, the parties shall, before commencing any legal proceedings, jointly engage the services of an accredited family dispute resolution practitioner or any agreed upon third party of their choice and make genuine efforts to engage in a dispute resolution process to settle their dispute.

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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