FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALVISIO & BARBARESCO | [2018] FCCA 3537 |
| Catchwords: FAMILY LAW – Parenting – Mother seeks to relocate from country New South Wales to start new life with new partner in Queensland – Mother’s evidence was to the effect that she has been and continues to be subject to “mafia-esque” intimidation from the Father, his family and his friends – evidence of family consultant equivocal in certain respects and dubious about the relocation but also clear about the children living primarily with the Mother – best interest considerations – Mother’s Application supported by Independent Children’s Lawyer – Application granted. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(3)(a) – (l), 65DAA |
| Cases cited: B & B [2006] FamCA 1207 Blanding v Blanding (2017) 55 Fam LR 218 Bolitho & Cohen (2005) 33 Fam LR 471; (2005) FLC ¶93-224 Cales & Cales (2010) 251 FLR 454; (2010) 44 Fam LR 376 Collu & Rinaldo [2010] FamCAFC 53 F v F (2008) 38 Fam LR 52 Fox v Percy (2003) 214 CLR 118 Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102 Goode v Goode (2007) 36 Fam LR 422 Hepburn & Noble (2010) FLC ¶93-438 M v S (2008) 37 Fam LR 32 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC ¶93-375 MRR v GR (2010) 240 CLR 461 Paskandy & Paskandy (1999) FLC ¶92-878 Payne v Payne [2001] Fam 473 Powell & Ptolemy (2005) FLC ¶93-239 Sealey & Archer [2008] FamCAFC 142 Sheldon & Weir (No.3) [2010] FamCA 1138 Starr & Duggan [2009] FamCAFC 115 Taylor & Barker (2008) 37 Fam LR 461 U v U (2002) 211 CLR 238 Vontek v Vontek [2017] FamCAFC 28 Wiley & Wiley [2008] FamCAFC 153 |
| Applicant: | MS ALVISIO |
| Respondent: | MR BARBARESCO |
| File Number: | CAC 1874 of 2017 |
| Judgment of: | Judge Neville |
| Hearing dates: | 9-10 August, 2 November 2018 |
| Date of Last Submission: | 3 December 2018 |
| Delivered at: | Canberra |
| Delivered on: | 21 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Giacomo |
| Solicitors for the Applicant: | Cater & Blumer |
| Solicitors for the Respondent: | BJH Lawyer |
| Counsel for the Independent Children's Lawyer: | Mr Lawrence |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
The parties have equal shared parental responsibility for the children; [X] (born: …2008) and [Y] (born: …2009) (“the children”).
The children live with the Mother.
The Mother be permitted to relocate to Town A with the children and reside there on a permanent basis.
The children spend time with the Father as agreed between the parties and, failing an agreement, as follows:
(a)For the entirety of the first, second and third school holidays from the first day of the holidays until 5pm the last day of the holidays;
(b)For the entirety of the fourth term/Christmas holidays in even years except for the last week;
(c)For the entirety of the fourth term/Christmas holidays in odd years except from 23…
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- AGLC
- Alvisio and Barbaresco [2018] FCCA 3537
- Case
- [2018] FCCA 3537
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the proposed relocation of the children to Queensland was in their best interests, considering all relevant circumstances. This required the Court to weigh the Mother's desire to relocate and her stated reasons against the Father's parental rights and the children's established connections and welfare. The Court also had to consider the evidence presented by a family consultant, which was noted as being equivocal in some aspects regarding the relocation but clear on the children primarily living with the Mother.
Judge Neville granted the Mother's application to relocate the children to Queensland. The Court ordered that the parties share equal parental responsibility for the children, with the children to live with the Mother. The specific terms of the orders detailed the arrangements for the children spending time with the Father, including during school holidays and weekends, and established protocols for communication, travel costs, and the exchange of information regarding the children's schooling and medical care. The orders also included provisions for respectful communication between the parents and restrictions on discussing the proceedings or denigrating the other parent in front of the children.
Orders
Orders of the court
1.
The parties have equal shared parental responsibility for the children; [X] (born: …2008) and [Y] (born: …2009) (“the children”).
2.
The children live with the Mother.
3.
The Mother be permitted to relocate to Town A with the children and reside there on a permanent basis.
4.
The children spend time with the Father as agreed between the parties and, failing an agreement, as follows:
(a) For the entirety of the first, second and third school holidays from the first day of the holidays until 5pm the last day of the holidays;
(b) For the entirety of the fourth term/Christmas holidays in even years except for the last week;
(c) For the entirety of the fourth term/Christmas holidays in odd years except from 23 December to 2 January; and
(d) On all weekends where a public holiday falls on either the Friday or the Monday, if the father travels to Town A.
5.
Changeover will occur with either the children flying from Town B to Sydney and Sydney to Town C, or the parties meeting halfway at Town D.
6.
The Mother is to pay all travel costs associated with the children spending time with the Father pursuant to Order 4.
7.
The children have telephone communication with the parent with whom they are not living each evening, with the parent they are not with to telephone the children at 6pm.
8.
If Father’s Day falls outside the Father’s time with the children in accordance with these orders, in the event the Father travels to Town A then the children shall spend time with him (with such time occurring in Town A) on Father’s Day weekend from after school on Friday immediately prior to Father’s Day until before school Monday;
9.
For the purpose of order 8 above the Father must provide the mother with written notice by way of text message and / or email of his intention to spend time with the children in Town A at least fourteen (14) days prior to such time occurring;
10.
Each parent shall authorise any school the children attend to advise the other parents of any information they require, copies of all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights, and inform the other parent of any emergency, remedial or correctional treatment required by the child/children as soon as practicable.
11.
Each parent shall authorise any treating medical practitioner, dental practitioner, hospital or medical practice that the child/children shall attend from time to time to provide to the other parent any information regarding the child/children.
12.
If the children fall ill such that one of the parents takes the child to the doctor, that parent shall notify the other parent of the doctor’s contact details, any medication prescribed and any treatment recommended. Each parent shall administer such medication when it falls due, adhere to any medical treatment plan and follow any directions from the doctor. Each parent is then restrained from seeking alternate medical treatment unless the condition appears to deteriorate or does not improve.
13.
In the event of an emergency or where the child/children requires hospitalisation, then the parent who has care of the children shall notify the other immediately and supply details of the hospital or medical practitioner where the child has been taken.
14.
Each parent shall notify the other within 24 hours of any change in residential address.
15.
Each parent shall notify the other within 12 hours of any change in contact telephone number.
16.
Any communication between the parents remains respectful.
17.
Neither party nor their servants or agents shall post photographs of the children on social media.
18.
Neither parent nor their servants or agents shall denigrate the other party or their family or partner in front of or within hearing of the children.
19.
Neither parent nor their servants or agents shall discuss these proceedings in front of, with or within hearing of the children.
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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