MANDIC & BELLAIRE - [2016] FamCA 478

FAMILY COURT OF AUSTRALIA

MANDIC & BELLAIRE

[2016] FamCA 478

FAMILY LAW – CHILDREN – Parental responsibility – Where the presumption of equal shared parental responsibility is applied – Orders made for the child to live with the mother and spend substantial and significant time with the father – Orders made for changeover to occur at the child’s school.

FAMILY LAW – CHILDREN – CHILDREN – Education – Where the mother seeks to change the child’s school – Where the application is opposed by the father and the ICL – Consideration of section 60CC – Where the Court finds that it is not in the child’s best interests for his school to be changed – Orders made for the child to remain at his current school – Orders made for the parents to attend mediation prior to the child commencing high school.

FAMILY LAW – CHILDREN – CHILDREN – Overseas travel – Where there have been previous interim applications to the Court for the mother to travel overseas with the child – Where the parties primarily disagree as to the appropriate amount of time for child to be absent from school – Orders made for the child to be absent no more than ten days, subject to government guidelines and permission from the child’s school.

FAMILY LAW – CHILDREN – COSTS – Where the Independent Children’s Lawyer sought costs – Where the parties were both self-represented during the final stages of the litigation – Parties to share equally in the costs of the Independent Children’s Lawyer.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DA, 65DAA, 65Y

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Lansa & Clovelly [2010] FamCA 80
MRR & GR (2010) 240 CLR 461
Re G: Children’s Schooling (2000) FLC 93-025

APPLICANT:

Mr Mandic

RESPONDENT:

Ms Bellaire

INDEPENDENT CHILDREN’S LAWYER:

Ms Weate

FILE NUMBER:

SYC

4409

2012

DATE DELIVERED:

14 June 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

29 - 31 March 2016

REPRESENTATION

FOR THE APPLICANT:

Mr Mandic in person

FOR THE RESPONDENT:

Dr Bellaire in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Jennifer Weate & Associates

Orders

That all previous parenting orders be discharged.

Parental responsibility

That the parents have equal shared parental responsibility for the child B born … 2008 (“the child”).

Live with and spend time with

That the child live with the Mother.
That the child spend time with the Father as follows:
(a) During the school term, on a two weekly cycle as follows:
(i)Week 1: From the conclusion of school on Thursday to the commencement of school on Friday; and
(ii)Week 2: From the conclusion of school on Friday until the commencement of school on Monday, and that in the event that Monday is a public holiday, pupil free day or a day in which the child does not otherwise attend school the time be extended until the commencement…

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 MANDIC & BELLAIRE

Details

AGLC: MANDIC & BELLAIRE [2016] FamCA 478
Case: [2016] FamCA 478
Decision Date: 14 June 2016

CaseChat Overview and Summary

The case of *Mandic & Belliare* involved parenting orders concerning a child born in 2008. The dispute centred on issues of parental responsibility, the child's living arrangements and time spent with each parent, schooling, and overseas travel. The matter was heard by McClelland J.

The court was required to determine several key issues, including the extent of parental responsibility, the specific arrangements for the child to live with the mother and spend time with the father, and the location for changeovers between parents. Further, the court had to consider the mother's application to change the child's school, the parameters for overseas travel with the child, and the allocation of costs for the Independent Children's Lawyer.

McClelland J made orders establishing equal shared parental responsibility for the child, with the child to live with the mother. Specific time arrangements were detailed for the father, including a two-weekly cycle during school terms and a division of school holidays. Changeovers were generally to occur at the child's school where practicable. The court found that it was not in the child's best interests to change schools and ordered that the child remain at his current school, with the parents to attend mediation regarding future schooling before the child commenced high school. Regarding overseas travel, each parent was permitted to remove the child from Australia for up to twenty-one days per year, subject to specific notice requirements and limitations on school absence.

Finally, the court ordered that the parties share equally in the costs of the Independent Children's Lawyer. Injunctions were also made restraining the parents from denigrating each other or members of their households in the presence or hearing of the child.

Orders

Orders of the court

That all previous parenting orders be discharged.

Parental responsibility

That the parents have equal shared parental responsibility for the child B born … 2008 (“the child”).

Live with and spend time with

That the child live with the Mother.

That the child spend time with the Father as follows:

(a) During the school term, on a two weekly cycle as follows:

(i) Week 1: From the conclusion of school on Thursday to the commencement of school on Friday; and

(ii)Week 2: From the conclusion of school on Friday until the commencement of school on Monday, and that in the event that Monday is a public holiday, pupil free day or a day in which the child does not otherwise attend school the time be extended until the commencement of school on Tuesday.

(b) During school holidays:

(i) For one half of the school holiday periods following the conclusion of terms 1, 2 and 3, being the first half in 2016 and each alternate year thereafter and the second half in 2017 and each alternate year thereafter;

(ii) That for the purpose of these orders, the holidays following the conclusion of terms 1, 2 and 3 are taken to commence on the first Saturday after the last day of the school term and conclude on the last Sunday before school recommences;

(iii) During the Christmas school holiday periods in 2016 and each alternate year thereafter:

i. From 28 December to 4 January;

ii. From 11 January to 18 January;

iii. From 24 January until the day before the first day of the new school year.

(iv) During the Christmas school holiday periods in 2017 and each alternate year thereafter:

i. From 21 December to 28 December;

ii. From 4 January to 11 January;

iii. From 18 January to 24 January

(v) That unless otherwise agreed between the parties, changeover during school holidays is to occur at 10 am.

That the parties be at liberty to vary the above spend time arrangements at any time by written agreement.

That notwithstanding any order to the contrary, the child spend the following special occasions with each parent:

(a) The child’s birthday:

(i) That the child shall spend time with the parent whose care he is not in on his birthday as agreed, but in default of agreement from the conclusion of school until 5.30 pm on a day in which the child is attending school or otherwise from 12 pm to 4 pm on a non-school day.

(b) Mother’s and Father’s Days

(i) That if Mother’s Day falls on a weekend during which the child is due to spend time with the Father, then the child should be returned to the Mother from 9 am to 6 pm that day;

(ii) That if Father’s Day falls on a weekend during which the child is due to spend time with the Mother, then he is to spend time with the Father from 9 am to 6 pm that day.

Changeover

That wherever practicable, changeover is to occur at the child’s school.

In the event that changeover is to occur on a day when the child is not attending school, the Father is to collect the child from the Mother’s residence at the commencement of the child’s time with him and the Mother is to collect the child from the Father’s residence at the conclusion of time.

Communication

That the child is to communicate with the parent in whose care he is not in each Sunday between 9 am and 9.30 am and each Wednesday between 7 pm and 7.30 pm, with the parent whose care the child is in to initiate the call to the other parent.

Specific Issues

10.

That each parent is to provide to the other details of their residential address, email address and mobile telephone number and thereafter provide to the other parent written notification of any change to such details within forty-eight (48) hours of such change being made.

11.

That each parent immediately notify the other of any serious injury or illness suffered by the child whilst in their care.

12.

That each parent notify the other in writing of any general practitioner, specialist or paediatrician who treats the child and provide all consents and authorities as necessary for the other party to communicate with the said medical practitioner.

13.

Unless otherwise agreed between the parents, neither parent is to enrol the child in any further extracurricular activity which occurs during the time that the child is to be in the care of the other parent.

Schooling

14.

That unless otherwise agreed in writing between the parents, the child remain enrolled at and attend D School.

15.

That on or before 1 May 2020 the parents are to attend for mediation with a family dispute resolution practitioner for the purpose of reaching an agreement as to where the child is to attend school.

Overseas travel

16.

That pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth), each party be permitted to remove the child the child from the Commonwealth of Australia as agreed between the parties, but in default of agreement for a period not exceeding twenty-one (21) days per year.

17.

That for the purpose of overseas travel as permitted by these Orders the party proposing to travel with the child provide to the other a minimum of twenty-eight (28) days written notice of their intention to remove the child from the Commonwealth of Australia, such notice to include details of any flights, destinations and the means by which the child can be contacted whilst he is overseas.

18.

That each parent is permitted to allow the child to be absent from school for the purpose of overseas travel for a period of up to ten (10) days per year, or such further period as may be agreed between the parties, subject to the following:

a) Compliance with NSW Department of Education policies, requirements and/or guidelines; and

b) Prior permission being obtained from the school where the child attends from time to time.

19.

That the parent holding the child’s passport is to release the said passport to the other parent a minimum of twenty-one (21) days prior to any proposed overseas travel.

20.

That upon the child’s return to Australia, the travelling parent is at liberty to retain the child’s passport until it is required to be provided to the other parent pursuant to Order 19 herein.

21.

That should either of the parents propose to travel with the child outside the Sydney metropolitan area for a period of greater than thirty-six (36) hours, then the parent proposing that travel is to provide the other parent with details, including contact details for the child, in respect to the travel and is to notify the other parent of the child’s arrival and return.

Non-denigration

22.

Each of the parties are restrained by injunction from denigrating the other parent or members of the other parent’s household in the presence and/or hearing of the child ,and shall use their best endeavours to ensure that no other person denigrates members of the other parent’s household in the presence and/or hearing of the child.

Costs of the Independent Children’s Lawyer

23.

The parties are to share equally in the costs of the Independent Children’s Lawyer.

AND THE COURT NOTES

A. That there is no specific order concerning the time that the child is to spend with each parent on Christmas Day as this day is to be alternated between the parents pursuant to Order 4(b) above.

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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