ARRANZIO & MOSS - [2015] FamCA 544

FAMILY COURT OF AUSTRALIA

ARRANZIO & MOSS

[2015] FamCA 544

FAMILY LAW – CHILDREN - with whom the child lives - with whom the child spends time - where the parties have diametrically opposed parenting approaches - where issues relating to the child's heath are significantly in dispute - where the parties cannot agree - where each party asserts the other poses a risk to the child - where the mother does not support a relationship between the child and his father

Family Law Act 1975 (Cth)

McCall & Clark (2009) FLC 93-405
Vigano & Desmond (2012) FLC 93-509
Mains & Redden (2011) FLC 95-478

APPLICANT:

Mr Arranzio

RESPONDENT:

Ms Moss

INDEPENDENT CHILDREN’S LAWYER:

Stewart Family Law

FILE NUMBER:

LEC

437

2010

DATE DELIVERED:

17 July 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

6, 7, 8, 9, 28, 29 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Smith

SOLICITOR FOR THE APPLICANT:

David Hunter Solicitor

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Bunning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stewart Family Law

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT:

All previous orders are discharged.
The child B, born … 2009, live with the father from:
(a)after school Friday, 17 July 2015 until before school Monday, 20 July 2015; and
(b)after school Friday, 24 July 2015 until before school Tuesday, 28 July 2015; and
(c)after school Friday, 31 July 2015 until before school Tuesday, 4 August 2015; and
(d)after school Friday, 7 August 2015 until before school Wednesday, 12 August 2015; and
(e) from after school 14 August 2015.
The father have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that he shall, prior to making a decision about any such issue:
(a)inform the mother in writing of the issue about which a decision needs to be made; the decision he would like to make in respect of such issue and the reasons for that proposed decision; and
(b)allow the mother 14 days after the provision of the information referred to above to respond to the same in writing; and
(c)consider the mother’s response, if any, when coming to a decision about any such issue; and
(d)inform the mother of the final decision made with respect to that issue as soon as practicable thereafter.
Each party have responsibility for daily decisions about the day to day care, welfare and development of the child when he is in that party’s care.
The child shall live with the mother as follows:
(a)commencing Thursday, 20 August 2015: each alternate week from after school Thursday until the commencement of school on Monday;
(b) for half of the school holiday periods in each year being:
(i)for the first half of the school holidays at the end of Terms 1, 2, and 3 in odd numbered years; and
(ii)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.

Continue reading ARRANZIO & MOSS

Details

AGLC: ARRANZIO & MOSS [2015] FamCA 544
Case: [2015] FamCA 544
Decision Date: 17 July 2015

CaseChat Overview and Summary

The case of *Arranzio & Moss* involved a dispute between the mother, Ms Moss, and the father, Mr Arranzio, concerning the parenting arrangements for their child, B. The matter came before Hogan J of the Family Court of Australia.

The court was required to determine a range of issues relating to the child's living arrangements, parental responsibility, communication between parents and child, and international travel. Specifically, the court needed to establish a schedule for when the child would live with each parent, allocate responsibility for decision-making on long-term and day-to-day matters, and set out protocols for communication, including telephone contact and the exchange of information regarding the child's welfare and education. The court also had to address restrictions and procedures concerning the removal of the child from Australia.

Hogan J applied principles of the *Family Law Act 1975* (Cth) to make final orders aimed at the best interests of the child. The orders established a detailed schedule for the child's residence with each parent, including specific provisions for weekends, school holidays, Father's Day, and Mother's Day. The father was granted sole parental responsibility for major long-term issues, subject to a requirement to consult with the mother. Each parent was given responsibility for daily decisions when the child was in their care. The court also made orders regarding communication, information sharing, and prohibitions against denigration and discussing proceedings with the child. Significant attention was given to international travel, with specific timeframes and notice requirements established, and the father was authorised to obtain a passport for the child, with provisions for the mother's cooperation or the appointment of a Registrar to sign documents if she failed to comply.

The final orders discharged all previous orders and dismissed all outstanding applications. The court also included a fact sheet detailing the obligations created by the orders and the consequences of contravention. The Independent Children's Lawyer was discharged upon compliance with specific therapeutic provisions.

Orders

Orders of the court

IT IS ORDERED BY WAY OF FINAL ORDER THAT:

All previous orders are discharged.

The child B, born … 2009, live with the father from:

(a) after school Friday, 17 July 2015 until before school Monday, 20 July 2015; and

(b) after school Friday, 24 July 2015 until before school Tuesday, 28 July 2015; and

(d) after school Friday, 7 August 2015 until before school Wednesday, 12 August 2015; and

(e) from after school 14 August 2015.

The father have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that he shall, prior to making a decision about any such issue:

(a) inform the mother in writing of the issue about which a decision needs to be made; the decision he would like to make in respect of such issue and the reasons for that proposed decision; and

(b) allow the mother 14 days after the provision of the information referred to above to respond to the same in writing; and

(d) inform the mother of the final decision made with respect to that issue as soon as practicable thereafter.

Each party have responsibility for daily decisions about the day to day care, welfare and development of the child when he is in that party’s care.

The child shall live with the mother as follows:

(a) commencing Thursday, 20 August 2015: each alternate week from after school Thursday until the commencement of school on Monday;

(b) for half of the school holiday periods in each year being:

(i) for the first half of the school holidays at the end of Terms 1, 2, and 3 in odd numbered years; and

(ii) for the second half of the school holidays at the end of Terms 1, 2, and 3 in even numbered years; and

(iii) until 2017: for the first, third and fifth weeks of the school holidays at the end of Term 4 in odd numbered years; and

(iv) until 2017: for the second, fourth, and sixth weeks of the school holidays at the end of Term 4 in even numbered years;

(v) from 2017 onwards:

A. for the first half of the school holidays at the end of Term 4 each year in odd numbered years, and

B. for the second half of the school holidays at the end of Term 4 each year in even numbered years.

In the event that the child would not otherwise be spending time with the father on the weekend on which Father’s Day occurs, the child shall spend time with the father from after school Friday until before school Monday on that weekend with the father to collect the child from school at the commencement of time and return the child to school at the conclusion of time.

In the event that the child would not otherwise be spending time with the mother on the weekend on which Mother’s Day occurs, the child shall spend time with the mother from after school Friday until before school Monday on that weekend with the mother to collect the child from school at the commencement of time and return the child to school at the conclusion of time.

From the start of Term 3 in 2015 the operation of Clause (5)(a) shall be suspended during any school holiday period and shall resume with weekend time commencing:

(a) on the first weekend of school Term if the child has spent time with the mother in the first half of the holiday period; or

(b) on the second weekend of school Term if the child has spent time with the father in the second half of the holiday period.

Unless otherwise agreed between the parties in writing or otherwise provided for in this Order, changeovers shall occur at McDonald’s Restaurant C Town.

10.

Each party shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the child.

11.

The mother shall have telephone communication with the child each Wednesday between the hours of 6:30 pm and 7.00 pm or at such other times as may be agreed in writing between the parents with:

(a) the mother to initiate the telephone call to a telephone number to be provided to her by the father; and

(b) the father to ensure the child is available to receive the telephone call.

12.

In any school holiday period during which the child is spending holiday time with the mother, the father shall have telephone communication with the child each Wednesday between the hours of 6:30 pm and 7.00 pm or at such times as may be agreed in writing between the parents with:

(a) the father to initiate the telephone call to a telephone number to be provided to the father by the mother; and

(b) the mother to ensure the child is available to receive the telephone call.

13.

The mother and father shall:

(a) keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within twenty-four (24) hours of such change; and

(b) notify the other at least seven (7) days prior to relocating their residence; and

(c) keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the child; and

(d) inform the other as soon as is reasonably practicable of any serious medical condition suffered by the child; and

(e) keep the other informed of any school, educational facility or extra- curricular activity provider attended by the child.

14.

Each party is hereby restrained from smoking in the presence of the child.

15.

Each party is to use their best endeavours to ensure the child is not brought into contact with cigarette smoke and to remove the child from the presence of cigarette smoke.

16.

Each party shall refrain from consuming alcohol to excess or being under the influence of alcohol at a level higher than that which would enable that parent to lawfully operate a motor vehicle while the child is in their care

17.

Neither party shall enrol the child in any activity nor arrange for the child to participate in any activity which occurs during time the child is with the other party without first obtaining the written agreement of that party.

18.

By this Order, the mother and father authorise any day care, school, educational facility or extra-curricular activity provider attended by the child to provide to each parent, at that parent’s request and cost, all information about the child’s educational progress and school related activities.

19.

By this Order, the mother and father authorise any medical or other health professionals who treat the child to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the child’s attendance and treatment.

20.

Neither parent denigrate the other, their partner or their family to, or in front of, or within the hearing of the child and each shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of the child and, failing the third parties’ compliance with such a direction, shall remove the child from that environment immediately.

21.

Neither parent shall discuss these proceedings with the child, save for in counselling, nor involve the child in any discussions regarding any issue in dispute between them.

22.

Each parent shall forthwith complete a Post-Separation Parenting Orders programme through either a Family Relationship Centre or Relationships Australia and provide the other with written confirmation of their attendance and completion of the same within six (6) months of the date of this Order.

23.

Save in the case of emergency, the mother is restrained from taking the child to any medical practitioner other than the person nominated by the father in writing as the child’s general medical practitioner.

24.

Save in the case of emergency, the father is restrained from taking the child to any medical practitioner other than the person nominated by him in writing to the mother as the child’s general medical practitioner.

25.

Save as provided for in Clause (23), the mother is restrained from taking the child to any person or health practitioner howsoever described in relation to issues about his health.

26.

Neither party shall change the child’s residence to a place more than 50 km from the C Town Central business district without first providing the other with no less than 60 days notice in writing of an intention to do so.

27.

The mother, Ms Moss born … 1980 and the father, Mr Arranzio born … 1966 and their servants and agents each are restrained from removing or attempting to remove or causing or permitting the removal of the child B (a male), born … 2009 from the Commonwealth of Australia before 30 September 2016.

28.

It is requested that the Australian Federal Police give effect to the preceding order by maintaining the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 30 September 2016.

29.

Upon expiration of the period referred to in Clause (27) and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police cause the removal of the child’s name from the Watchlist.

30.

Either parent is permitted to remove the child from the Commonwealth of Australia for the purpose of holiday travel after 30 September 2016.

31.

In the event that any parent wishes to remove the child from the Commonwealth of Australia pursuant to Clause (30), that parent shall provide the other with no less than sixty (60) days notice of the intention to travel overseas and shall provide details of the proposed departure and arrival dates, destination and contact details whilst overseas.

32.

No less than thirty (30) days before date of departure from the Commonwealth of Australia, the travelling parent shall provide to the other

(a) a copy of a return ticket for the child, evidencing the date of departure and date of return to the Commonwealth of Australia; and

(b) a copy of an itinerary which contains sufficient contact details to enable telephone communication between the non-travelling parent and the child to occur in the manner provided for in this Order.

33.

Until 28 May 2017, each parent is permitted to remove the child from the Commonwealth of Australia for holiday purposes on the proviso that the period of time during which he is outside the Commonwealth of Australia is no longer than 10 consecutive days and occurs during school holiday periods.

34.

After 28 May 2017, each parent is permitted to remove the child from the Commonwealth of Australia for holiday purposes on the proviso that the period of time during which he is outside the Commonwealth of Australia is no longer than 21 consecutive days and occurs during school holiday periods.

35.

Both parties will engage a therapist, a counsellor or psychologist (the person) nominated by the Independent Children’s Lawyer for the purpose of assisting the child to progress in the time with the father and, for this purpose, the parties will:

(a) follow reasonable directions provided by the person as to the frequency at which the child should attend upon the person; and

(b) ensure that the child continues to attend as reasonably directed by the person from time to time; and

(d) attend at all such reasonable times as the person may request with the attending party to be solely responsible for the costs of their own attendance upon the person.

36.

The Independent Children’s Lawyer and parties have leave to provide the following documents to the person upon whom the child attends pursuant to Clause (35) of this Order:

(a) the Family Reports prepared by Ms D dated 25 August 2011, 13 July 2012, 1 May 2013, and 22 April 2014; and

(b) a copy of this Order and the Reasons for Judgment delivered 17 July 2015.

37.

The father has liberty to obtain a passport for the child and, to the extent necessary, the mother is to sign and return any document required for this purpose within seven (7) days of receiving a request to do so.

38.

In the event that the mother fails to comply with a request to sign and return any document necessary to obtain a passport for the child, a Registrar of the Family Court of Australia is appointed, pursuant to section 106A of the Family Law Act 1975 (Cth), to sign such document or documents in the name of the mother and to do all acts and things necessary to enable a passport to be obtained for the child.

39.

The father shall be entitled to possession of the child’s passport.

40.

Upon the mother’s request, the father shall provide the child’s passport to the mother no less than fourteen (14) days before any notified proposed date of departure from the Commonwealth of Australia.

41.

In the event the mother removes the child from the Commonwealth of Australia for the purpose of holiday travel, she shall return the passport to the father within seven (7) days of the child’s return to the Commonwealth of Australia.

42.

Upon compliance with the terms of Clauses (35) and (36) of this Order, the Independent Children’s Lawyer is discharged.

IT IS FURTHER ORDERED THAT

43.

Pursuant to s 65DA(2) and s 62B of the Family Law Act (1975), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

AND IT IS FURTHER ORDERED THAT

44.

All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.

45.

After the expiration of the appeal period, all subpoenaed documents shall be destroyed or returned to the persons or institutions from which they emanated and any exhibit shall be returned to the party by whom that exhibit was tendered.

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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