Calvo and Calvo - [2013] FCCA 1707

FEDERAL CIRCUIT COURT OF AUSTRALIA

CALVO & CALVO

[2013] FCCA 1707

Catchwords:
FAMILY LAW – Father wishes to relocate with eleven year old daughter to Cairns area – following separation the child primarily lived with the mother for over six years – relationship between mother and child fractured – child went to live with father fifteen months ago – father remarries – child embedded in new blended family – child’s view clear – effect of mother’s mental health on the mother/ daughter relationship – the mother’s lack of insight.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Caravaggio & Caravaggio [2011] FamCA 254
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405

Applicant:

MS CALVO

Respondent:

MR CALVO

File Number:

DGC 1702 of 2013

Judgment of:

Judge Curtain

Hearing date:

11 October 2013

Date of Last Submission:

11 October 2013

Orders Delivered at:

Melbourne

Orders Delivered on:

21 October 2013

Reasons Delivered at:

Melbourne (in Chambers)

Reasons Delivered on:

1 November 2013

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr Arnold

Solicitors for the Respondent:

Chris Woods And Associates

ORDERS

THE COURT ORDERS THAT:

All previous parenting orders be and are hereby discharged.
The Father and the Mother have equal shared parental responsibility for the child, [X] born [in] 2002 (“the child”).
The child live with the Father.
The Father be permitted to relocate the residence of the child to the Cairns area in Queensland on or after 21 December 2013, subject to Order 6(a)(i) *which, subject to the parents’ wishes, shall be a continuation of Order 5(b) in 2013/14 for the first half of the long summer vacation*.
Until Order 4 above comes into effect, the child spend time and communicate with the Mother as follows:
(a)each alternate weekend from 9.00 am Saturday to 1.30 pm Sunday, continuing with the weekend of 2 November 2013;
(b)for two (2) consecutive weekends out of three (3), commencing 16 November 2013 for the same days and times as above;
(c)on special occasions for a reasonable time as agreed between the parents; and
(d)at any time by agreement between the parents in writing.
Upon the operation of Order 4 above, the Mother spend time and communicate with the child as follows:
(a)each Queensland school holiday period by agreement between the parents and in default of agreement:
(i)the first half of the long summer vacation; and
(ii)the first ten (10) days of each of the term holidays.
(b)at any time the child visits Melbourne with days and times to be agreed between the parents in consultation with the child;
(c)at any time the Mother visits Far North Queensland with days and times to be agreed between the parents; and
(d)subject to Order 8 below by telephone, Skype and other electronic methods on a liberal basis, and with the Father to co-operate with any reasonable requests by the Mother to facilitate and assist with such communication.
The Father shall do all reasonable things necessary to…

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 Calvo and Calvo

Details

AGLC: Calvo and Calvo [2013] FCCA 1707
Case: [2013] FCCA 1707
Decision Date: 21 October 2013

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Curtain in the Federal Circuit Court of Australia. The dispute involved the parents, referred to as the Father and the Mother, and their child, born in 2002. The court was required to determine the future parenting arrangements for the child, including issues of parental responsibility, living arrangements, and the terms of the child's time with each parent, particularly in light of the Father's proposed relocation to the Cairns area in Queensland.

The court was tasked with establishing new parenting orders that would discharge previous arrangements and set out the framework for shared parental responsibility. Key legal issues included determining where the child would live, the specific arrangements for the child to spend time with each parent, and the conditions under which the Father could relocate the child to Queensland. The court also had to consider provisions for communication between the child and both parents, including the use of electronic means, and address the practicalities of travel and the financial responsibilities associated with facilitating the child's time with the Mother.

In its reasoning, the court applied principles of the *Family Law Act 1975* concerning the best interests of the child. The orders reflect a decision for equal shared parental responsibility, with the child to live with the Father. The court permitted the Father to relocate the child to Cairns, subject to specific conditions regarding the child's time with the Mother during school holidays and other periods. Detailed provisions were made for the Mother's time with the child, including travel arrangements and communication methods. The court also imposed injunctions on both parents regarding the consumption of alcohol and drugs during time with the child, and a general prohibition against denigrating the other parent. Further orders addressed the facilitation of communication, travel restrictions, and the exchange of information regarding the child's health and schooling.

The court ordered the discharge of all previous parenting orders and established new arrangements for the child's living situation, time with each parent, and communication. The Father was permitted to relocate the child to Cairns, with specific provisions for the Mother's time and communication with the child thereafter. The court also made orders regarding travel, information sharing, and injunctions concerning parental conduct. All extant applications were dismissed, and liberty to apply was granted.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. All previous parenting orders be and are hereby discharged.

2. The Father and the Mother have equal shared parental responsibility for the child, [X] born [in] 2002 (“the child”).

3. The child live with the Father.

4. The Father be permitted to relocate the residence of the child to the Cairns area in Queensland on or after 21 December 2013, subject to Order 6(a)(i) *which, subject to the parents’ wishes, shall be a continuation of Order 5(b) in 2013/14 for the first half of the long summer vacation*.

5. Until Order 4 above comes into effect, the child spend time and communicate with the Mother as follows:

(a) each alternate weekend from 9.00 am Saturday to 1.30 pm Sunday, continuing with the weekend of 2 November 2013;

(b) for two (2) consecutive weekends out of three (3), commencing 16 November 2013 for the same days and times as above;

(d) at any time by agreement between the parents in writing.

6. Upon the operation of Order 4 above, the Mother spend time and communicate with the child as follows:

(a) each Queensland school holiday period by agreement between the parents and in default of agreement:

(i) the first half of the long summer vacation; and

(ii) the first ten (10) days of each of the term holidays.

(b) at any time the child visits Melbourne with days and times to be agreed between the parents in consultation with the child;

(d) subject to Order 8 below by telephone, Skype and other electronic methods on a liberal basis, and with the Father to co-operate with any reasonable requests by the Mother to facilitate and assist with such communication.

7. The Father shall do all reasonable things necessary to facilitate and direct the child to have frequent and regular communication with her Mother, after they relocate to Queensland.

8. Both parents have liberal telephone, SMS text message and email communication with the child when she is living with or spending time with the other parent, and in default of agreement as follows:

(a) by telephone three (3) times per week, and if not agreed, Monday, Wednesday and Friday between 5.00 pm to 5.30 pm and Saturday between 11.00 am to 11.30 am; and

(b) both parents ensure that the child has access to her smart phone and ipod during non-school times and between 8.00 am to 8.30 am each day for the purposes of telephone communication, SMS text message, email and the like.

9. The Father shall be responsible for booking and paying promptly the full ticket cost (whether discounted, on special or otherwise) of four (4) return flights per year to Melbourne to enable the child to spend time with the Mother, and he shall immediately advise the Mother in writing of the particulars of each and every booking.

10. The Mother and the Father do all acts and things necessary to deliver and/ or collect the child from the airport at the commencement and conclusion of time with the Mother on such terms and conditions as agreed between the parents in writing.

11. The parents, their servants and agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the child from the Commonwealth of Australia, save and except for with the written consent of the other parent first obtained, which shall not be unreasonably refused.

12. The Australian Federal Police remove the correct name of the child and the child’s name and date of birth which is also recorded as [X] born [in] 2002, from the Airport Watch List at all points of international arrivals and departures in Australia.

13. Should the parents agree to overseas travel for the child, they shall provide to the other no less than thirty (30) clear days before departure, a copy of the e-booking or tickets, the written itinerary of the intended travel including flight details, details of the proposed accommodation, details of any travelling companion, length of travel and expected date of return and contact telephone numbers whilst she is overseas.

14. Whilst overseas the parent with the child shall:

(a) facilitate the child telephoning the other parent within twelve (12) hours of arrival;

(b) facilitate and encourage the child to contact the other parent upon the other parent’s request to do so;

(c) provide the other parent with details of any emergency contact and telephone contact to be utilised by the other if required (being the other’s mobile telephone number and/ or landline if practical), and ensure that the telephone is on international roaming; and

(d) contact the other parent as soon as practicable in the event of any emergency regarding the child.

15. Whilst denying the need for this order by the Mother, for twenty-four (24) hours immediately prior to the commencement of any time spent with the child (including any period during which the child lives with her), and during all such time spent, the Mother be and is hereby restrained by injunction from ingesting, consuming, using, or otherwise being under the influence of, alcohol (or having a blood alcohol content above 0.05).

16. For twenty-four (24) hours immediately prior to the commencement of any time spent with the child (including any period during which the child lives with him), and during all such time spent, the Father be and is hereby restrained by injunction from possessing, ingesting, consuming, using, or otherwise being under the influence of any legal or illegal drug or substance, save and except for:

(a) any legal medication prescribed for the Father by a registered medical practitioner, and taken or used by the Father strictly in accordance with such prescription; and

(b) any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine), and taken or used by the Father strictly in accordance with the directions appearing on such medication or pharmaceutical substance.

17. Neither parent denigrate the other parent or their partner in the presence or hearing of the child or allow the child to remain in the presence or hearing of any person who denigrates the other party or their partner.

18. Each parent shall promptly keep the other informed of:

(a) any significant health issues concerning the child;

(b) any proposed elective health treatment and its expense in relation to the child;

(d) the child’s mobile telephone number, Skype address and email address.

19. The Father promptly arrange for and the Mother shall do all things necessary to be permitted to receive all correspondence, notices, photographs or like information from the child’s school at the Mother’s expense and be permitted to attend all school matters and events normally attended by parents and communicate with the school regarding the child.

20. All extant applications be otherwise dismissed.

21. Either parent shall have liberty to apply pursuant to sub-rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 (“the Slip Rule”) should they deem it relevant.

22. *The Mother be at liberty to provide a copy of the Family Report by Family Consultant Ms S, dated 22 August 2013 (“the Report”), if accompanied by a copy of this Order to her counsellor AND that no person shall release the Report, or provide access to the Report, to any other person.*

AND THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 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 are set out in Annexure A and these particulars are included in these orders.

B. *The effect of s.121(1) of the Family Law Act 1975 and Order 22 above is not limited to the parties to the proceedings.

C. Section 121(1) of the Family Law Act 1975 provides:

(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

(a) a party to the proceedings;

(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.*

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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