ANGELIS & REGOLI - [2020] FCCA 3138

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANGELIS & REGOLI

[2020] FCCA 3138

Catchwords:
FAMILY LAW – Application for care arrangements for child aged 5 – mother alleges father has abused the child – mother unilaterally relocated with the child upon separation – best interests of the child – matters to be considered.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 67Z

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

N & S and the Separate Representative (1996) FLC 92-655

W & W (abuse allegations: unacceptable risk) [2005] FamCA 892

Applicant:

MR ANGELIS

Respondent:

MS REGOLI

File Number:

ADC 5352 of 2019

Judgment of:

Judge Brown

Hearing date:

4 November 2020

Date of Last Submission:

4 November 2020

Delivered at:

Adelaide

Delivered on:

18 November 2020

REPRESENTATION

Counsel for the Applicant:

Ms Miller

Solicitors for the Applicant:

Belperio Clark

Counsel for the Respondent:

Mr Praolini

Solicitors for the Respondent:

Adelaide Family Law

Counsel for the Independent Children's Lawyer:

Mr Hemsley

Solicitors for the Independent Children's Lawyer:

Legal Services Commission of South Australia

ORDERS

The child X born in 2015 (‘the child’) spend time with the father from 9.30am until 2.00pm each Sunday commencing 22 November 2020.
In order to give effect to order one hereof the child is to be exchanged between the parties at the Suburb B Children’s Contact Centre and subject to the supervision of its director or her nominee.
The mother is restrained and an injunction is hereby granted restraining her from moving the child’s place of residence from the Adelaide metropolitan area.
Further consideration of the matter is adjourned to 8 February 2021 at 9.30am for directions.

IT IS NOTED that publication of this judgment under the pseudonym Angelis & Regoli is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 5352 of 2019

MR ANGELIS

Applicant

And

MS REGOLI

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Angelis and Ms Regoli are the parents of X born in 2015. They fundamentally disagree on arrangements for X’s care.
Due to the intractability and complexity of their disagreement, it has been ordered that X be independently represented. X’s representative is Ashley Kent, an experienced Adelaide family lawyer.
The dispute arises at an interim stage. As yet there has not been time for a family report to be compiled. In addition, the case is still some way away from being fixed for final hearing.
However, a significant number of documents have been provided to the court by SAPOL and the Department for Child Protection (“DCP”) pursuant to the provisions of section 69ZW of the Family Law Act 1975.
The court has sought the production of those documents because each of the parties has asserted that the other poses a significant risk to X’s physical and psychological health and well-being.
Due to these protective concerns relating to X, DCP have been invited to intervene in the case. This invitation has been declined. However, DCP have indicated receiving a number of notifications…

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

Case: [2020] FCCA 3138
Decision Date: 18 November 2020

CaseChat Overview and Summary

In the matter of ANGELIS & REGOLI, heard before Judge Brown, the dispute concerned an application for care arrangements for a five-year-old child. The mother alleged that the father had abused the child and, following the parties' separation, had unilaterally relocated with the child. The central consideration for the court was the best interests of the child.

The court was required to determine the appropriate care arrangements for the child, specifically addressing the mother's relocation and the allegations of child abuse. The court also had to consider the various matters relevant to the best interests of the child under the applicable legislation.

Judge Brown reasoned that the paramount consideration was the child's welfare. While acknowledging the mother's allegations, the court found it necessary to facilitate some contact between the child and the father, albeit under supervision. The court applied the principles of the *Family Law Act 1975* (Cth) regarding the best interests of the child, which includes considerations of the child's safety, the need to protect the child from harm, and the importance of maintaining a meaningful relationship with both parents where it is in the child's best interests.

The court ordered that the child spend time with the father each Sunday from 9:30 am to 2:00 pm, commencing on 22 November 2020. These exchanges were to occur at a children's contact centre under supervision. Furthermore, an injunction was granted restraining the mother from moving the child's place of residence from the Adelaide metropolitan area. The matter was adjourned for further directions.

Orders

Orders of the court

The child X born in 2015 (‘the child’) spend time with the father from 9.30am until 2.00pm each Sunday commencing 22 November 2020.

In order to give effect to order one hereof the child is to be exchanged between the parties at the Suburb B Children’s Contact Centre and subject to the supervision of its director or her nominee.

The mother is restrained and an injunction is hereby granted restraining her from moving the child’s place of residence from the Adelaide metropolitan area.

Further consideration of the matter is adjourned to 8 February 2021 at 9.30am for directions.

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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