Angeli & Farina

Case [2021] FedCFamC1F 266

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Angeli & Farina [2021] FedCFamC1F 266

File number(s): SYC 5377 of 2019
Judgment of: ALTOBELLI J
Date of judgment: 9 December 2021
Catchwords:

FAMILY LAW – PARENTING – International relocation – Where mother seeks to relocate to the United States of America with the child – Where the father opposes the relocation application – Consent orders made for equal shared parental responsibility – Mental health of the mother – Findings that the mother’s mental health was caused by or exacerbated by family violence in her relationship with the father – Order made permitting child to relocate with the mother and to spend time with the father.

FAMILY LAW – CHILD SUPPORT – Application to depart from administrative assessment of child support – Future financial circumstances of the parties so unclear that the Court cannot be satisfied as to the presence of any factor in s 117 of the Child Support (Assessment) Act 1989 (Cth) – Application dismissed.

Legislation:

Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC

Child Support (Assessment) Act 1989 (Cth) s 116, s 117
Cases cited:

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Carlson & Fluvium [2012] FamCA 32

Champness & Hansen (2009) FLC 93-407; [2009] FamCAFC 96

Franklyn & Franklyn [2019] FamCAFC 256

Godfrey & Sanders [2007] FamCA 102

Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170

Sayer & Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209

Taylor v Barker (2007) FLC 93-345; [2007] FamCA 1246

U v U (2002) 211 CLR 238; [2002] HCA 36
Division: Division 1 First Instance
Number of paragraphs: 125
Date of last submission/s: 23 September 2021
Date of hearing: 7-14 May 2021, 13-16, 23 September 2021
Place: Sydney
Counsel for the Applicant: Mr Schonell SC
Solicitor for the Applicant: Broun Abrahams Burreket
Counsel for the Respondent: Ms Christie SC
Solicitor for the Respondent: Lander & Rogers
Counsel for the Independent Children's Lawyer: Ms Shea
Solicitor for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

SYC 5377 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR ANGELI

Applicant
AND:

MS FARINA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

9 DECEMBER 2021

THE COURT ORDERS THAT:

1.All previous parenting orders are discharged.

THE COURT ORDERS BY CONSENT THAT:

2.The mother and father have equal shared parental responsibility for the child Z born on … 2011 (“Z”).

Communication

3.While Z is living with the mother, in the United States of America (“USA”), the mother will facilitate Z having communication with the Father  by way of FaceTime or Skype, and if FaceTime or Skype are not reasonably available, by telephone or other electronic communication for up to thirty (30) minutes on no less than three days each week at such times as agreed between the parties, and failing agreement each Sunday, Wednesday and Friday during between 5.30pm and 7.30pm (City A time), and for that purpose;

(a)The mother and…

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AGLC
Angeli & Farina [2021] FedCFamC1F 266
Case
[2021] FedCFamC1F 266
Decision Date

CaseChat Overview and Summary

The case of Angeli & Farina involved a dispute between the parents, Angeli and Farina, over the best interests of their child, Z. The dispute primarily centred on whether Z should relocate with his mother to City A or remain in Sydney with his father. Both parents were deemed capable of meeting Z's needs, with the court acknowledging the rich cultural backgrounds and educational values they would provide. However, the court noted the volatility in their relationship and its impact on Z. The father argued that Z's meaningful relationship with him would be compromised if he moved to City A, and that the mother's mental health posed a risk. The mother, on the other hand, wanted to move to City A for personal reasons, which the court recognised as her right, balanced against the paramount interest of the child. The court had to determine whether the parents' right to freedom of mobility should defer to the children's welfare and best interests.

The legal issues before the court involved balancing the parents' right to freedom of mobility with the paramount consideration of the child's best interests, as outlined in the Family Law Act. The court considered various factors, including the meaningful relationship Z has with both parents, the potential harm from abuse, neglect, or family violence, and the impact of the COVID-19 pandemic on family life. The court also examined the parents' attitudes towards Z and their responsibilities as parents. The court concluded that Z would maintain a meaningful relationship with both parents regardless of his location and that the father's concerns about the pandemic and the mother's mental health did not outweigh the benefits of the diverse cultural backgrounds and educational values both parents could provide.

The court reasoned that Z would have a meaningful relationship with both parents whether he lived in Sydney or City A, as the law does not require this relationship to be optimal. The father's concerns about difficulties caused by the COVID-19 pandemic were dismissed as the court believed the impact of the pandemic on family life, including travel, had risen and fallen in the same way as it had on other aspects of life. The court found no inconsistency in the evidence provided by Dr D, a psychologist, regarding the pandemic's impact on family relationships. Furthermore, the court noted that the father's proposal for equal time with Z was inconsistent with his concern about Z being at risk in the mother's care, as Z would still spend significant time with his mother annually. The court also found that the father's proposal did not include any orders to address the mother's mental health, which was inconsistent with his stated concerns.

The court ultimately decided that the best interests of Z would be served by allowing him to live with his mother in City A, provided certain conditions were met to ensure his safety and well-being. The court ordered that the mother continue to engage with her treating professionals and take any prescribed medication. Additionally, the court ordered that the father and mother facilitate regular and meaningful contact between Z and both parents, considering the geographical distance and the impact of the COVID-19 pandemic. The court emphasised the importance of both parents supporting Z's relationship with the other, which it found to be a positive aspect of both parents' attitudes towards Z.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Apart from the mother’s mental health, the Court discerns no real differentiation between these parents in terms of their capacity to meet the child’s needs. They are both capable parents, whether parenting in Australia or the USA.Maturity, sex, lifestyle and background of the parents and the child and other characteristics of the child that the Court thinks relevant There are certainly strengths and weaknesses in relation to this factor. Z will have the benefit of the diverse and rich cultural backgrounds of his parents. His father is of South American descent, and his mother of Country E descent. His parents are highly intelligent and clearly value education, and thus he will receive the benefit of this. Z is already a well-travelled child, and it is highly likely that he will continue to benefit from this. Z presents as a resilient child. Both parents clearly have his wellbeing and best interests at the forefront of their minds most of the time. Regrettably, litigation often brings out immaturity and self-focus even with the best of parents. Dr D made the following observation at page 29 of his first report:Both parents are very voluble but in different ways, and it is clear from both accounts that their relationship was quite volatile, with each blaming the other for being belligerent and intransigent. In the case of the father, he spoke expansively, persuasively and with apparent confidence, but I think he has the capacity to be autocratic, relentless and overbearing, as the mother alleges. These observations certainly accord with the Court’s own impression of the parents having observed them closely over the course of the hearing. The volubility of the parents may well extend to other interpersonal relationships. There was, for example, evidence of the mother previously experiencing interpersonal difficulties with work colleagues and friends. There is contrasting evidence, however, of the mother’s close network of friends in City A with whom she shared an association to the school that Z attended. In his second report at page 16, Dr D noted the very poor and distrustful nature of the parents’ relationship which caused Z stress in attempting to keep the peace between them. Nonetheless, Dr D was confident that this would settle when the Court case finalised. The Court agrees both with the observations, and the confidence that these issues should settle on the conclusion of the litigation.The attitudes to the child and to the responsibilities of parenthood Both parents can be relied upon to follow Court orders. Indeed, the mother has gone beyond the orders to provide further contact and communication with the father. This reflects positively on both their attitudes towards Z, and to their responsibilities as parents. The key issue in this case is whether each parent will support Z’s relationship with the other. It was not a discernible part of the mother’s case that the father would not do so. Indeed the Court is satisfied that he can be relied on to support his relationship with his mother under any circumstances.

Evidence

Evidence Before The Court

The Court recognises that each party is entitled to live where they choose without the need to provide “compelling reasons” (AMS v AIF (1999) 199 CLR 160 at [191]) but such right of freedom to mobility must ultimately defer to the paramount consideration (U v U (2002) 211 CLR 238 at [89]). The interaction between these principles was described by Full Court in Franklyn & Franklyn [2019] FamCAFC 256 at [27]–[28] as follows:There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent. While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) (2007) FLC 93-350; Zanda & Zanda (2014) FLC 93-607 at [132]-[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).THE EVIDENCE In support of his case, the father relied on the following documents:(a)His Initiating Application filed 15 August 2019;(b)His Financial Statement filed 29 January 2021;(c)His Affidavit filed 9 April 2021;(d)Affidavit of Mr M filed 9 April 2021;(e)Affidavit of Ms Q filed 9 April 2021;(f)Affidavit of Mr S filed 7 May 2021;(g)Affidavit of Mr R filed 7 May 2021;(h)Affidavit of Mr U filed 7 May 2021;(i)His Affidavit filed 30 August 2021;(j)Affidavit of Ms T filed 30 August 2021;(k)His Affidavit filed 2 November 2021;(l)Affidavit of Ms T filed 8 November 2021;(m)His case outline document filed 3 May 2021;(n)His outline of submissions filed 22 September 2021; and(o)Various documents tendered and marked as exhibits A1 to A26. In support of her case, the mother relied on the following documents:(a)Her Response to Initiating Application filed 9 October 2019;(b)Her Financial Statement filed 29 January 2021;(c)Affidavit of Ms H filed 9 April 2021;(d)Affidavit of Dr C filed 9 April 2021;(e)Affidavit of Ms O filed 9 April 2021;(f)Affidavit of Mr V filed 9 April 2021;(g)Affidavit of Ms W filed 9 April 2021;(h)Her Affidavit filed 12 April 2021;(i)Affidavit of Ms H filed 31 August 2021;(j)Affidavit of Dr C filed 31 August 2021;(k)Her case outline document filed 3 May 2021;(l)Her outline of submissions filed 22 September 2021;(m)Various documents tendered and marked as exhibits R1 to R42.

Decision

Reasons for decision

As it turns out, the Court will accept this submission.OUTLINE OF THESE REASONS FOR JUDGMENT The evidence will primarily be discussed by reference to the considerations referred to in s 60CC of the Act. The Court will then conclude what order is in the best interests of Z.Primary considerationsMeaningful relationship Z will have a meaningful relationship with his parents whether he is in Sydney or City A. There is no doubt that he has a meaningful relationship now. Equally, there is no doubt that, in a prospective sense, maintaining that is desirable. In any event, the law is quite clear that “meaningful” does not necessarily mean “optimal” (Champness & Hansen (2009) FLC 93-407; Godfrey & Sanders [2007] FamCA 102). The father’s case seemed to contend that a meaningful relationship would not be possible if Z were in City A for two main reasons. The first seemed to be based on the mother’s mental health, and the risk that this posed to Z, particularly in the context of her facilitating an ongoing relationship with the father. These related issues will be considered elsewhere in these reasons. The Court will conclude that neither will result in the father not being able to have a meaningful relationship with his son, even if Z lives in City A. The second reason was founded on anticipated difficulties that could be created as a result of the COVID-19 pandemic. The Court does not accept that any such difficulties will inhibit the future meaningful relationship between Z and his father. The reality is that the impact of the pandemic on family life has ebbed and flowed in the same way that the impact of the pandemic on all other aspects of life (including travel) has risen and fallen. The Court did not understand the evidence of Dr D to be in any way inconsistent with the above. Z’s relationship with his father will continue to be meaningful even if he is in City A. Despite the closer and deeper relationship that Z enjoys with his mother, the same conclusion applies. Meaningful relationship is not determinative in this case.Protecting the child from harm from being subjected to, or exposed to, abuse, neglect or family violence A difficulty the Court has with submissions to the effect that Z is at some risk of harm in the care of one of his parents is that this is fundamentally inconsistent with the proposals made for time with the other parent. This was a more prominent feature of the father’s case than the mother’s case. It is to be noted that the father’s original proposal was for equal time with each parent in Sydney. On the father’s proposal, in the event that the mother relocates to City A and Z were to live with him in Sydney, Z would be spending time with his mother for all of his Term 1 and Term 3 school holidays, and one half of the Term 2 and Term 4 school holidays. This totals approximately 11 weeks annually. Moreover, the father proposed no orders in relation to the mother’s mental health e.g. that she continue to engage with her treating professionals, or take medication as prescribed etc. The proposal is inconsistent with the stated concern.

Ratio Decidendi

Legal Principle Established

The evidence will primarily be discussed by reference to the considerations referred to in s 60CC of the Act. The Court will then conclude what order is in the best interests of Z.Primary considerationsMeaningful relationship Z will have a meaningful relationship with his parents whether he is in Sydney or City A. There is no doubt that he has a meaningful relationship now. Equally, there is no doubt that, in a prospective sense, maintaining that is desirable. In any event, the law is quite clear that “meaningful” does not necessarily mean “optimal” (Champness & Hansen (2009) FLC 93-407; Godfrey & Sanders [2007] FamCA 102). The father’s case seemed to contend that a meaningful relationship would not be possible if Z were in City A for two main reasons. The first seemed to be based on the mother’s mental health, and the risk that this posed to Z, particularly in the context of her facilitating an ongoing relationship with the father. These related issues will be considered elsewhere in these reasons. The Court will conclude that neither will result in the father not being able to have a meaningful relationship with his son, even if Z lives in City A. The second reason was founded on anticipated difficulties that could be created as a result of the COVID-19 pandemic. The Court does not accept that any such difficulties will inhibit the future meaningful relationship between Z and his father. The reality is that the impact of the pandemic on family life has ebbed and flowed in the same way that the impact of the pandemic on all other aspects of life (including travel) has risen and fallen. The Court did not understand the evidence of Dr D to be in any way inconsistent with the above. Z’s relationship with his father will continue to be meaningful even if he is in City A. Despite the closer and deeper relationship that Z enjoys with his mother, the same conclusion applies. Meaningful relationship is not determinative in this case.Protecting the child from harm from being subjected to, or exposed to, abuse, neglect or family violence A difficulty the Court has with submissions to the effect that Z is at some risk of harm in the care of one of his parents is that this is fundamentally inconsistent with the proposals made for time with the other parent. This was a more prominent feature of the father’s case than the mother’s case. It is to be noted that the father’s original proposal was for equal time with each parent in Sydney. On the father’s proposal, in the event that the mother relocates to City A and Z were to live with him in Sydney, Z would be spending time with his mother for all of his Term 1 and Term 3 school holidays, and one half of the Term 2 and Term 4 school holidays. This totals approximately 11 weeks annually. Moreover, the father proposed no orders in relation to the mother’s mental health e.g. that she continue to engage with her treating professionals, or take medication as prescribed etc. The proposal is inconsistent with the stated concern.