CAMINITI & CAMINITI - [2015] FamCA 59

FAMILY COURT OF AUSTRALIA

CAMINITI & CAMINITI

[2015] FamCA 59

FAMILY LAW – CHILDREN – Relocation – mother seeks to relocate to the USA with the child – equal shared parental responsibility – not reasonably practicable for father to spend substantial and significant time with child – benefit to the child of meaningful relationship – where father has had limited involvement in parenting of the child – close and loving relationship between mother and child – best interests of the child – orders made allowing mother to relocate to the USA.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 70M
Family Law Regulations 1984 (Cth) reg 24

Heaton & Heaton (2013) 48 Fam LR 349
Jurchenko & Foster [2014] FamCAFC 127
Mazorski v Albright (2007) 36 Fam LR 518
MRR v GR (2010) 240 CLR 461
Mulvaney & Lane (2009) FLC 93-404

APPLICANT:

Ms Caminiti

RESPONDENT:

Mr Caminiti

FILE NUMBER:

BRC

9921

2011

DATE DELIVERED:

11 February 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Justice Dawe

HEARING DATE:

9, 10 & 11 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Barry

SOLICITOR FOR THE APPLICANT:

Darwin Family Law

COUNSEL FOR THE RESPONDENT:

Mr McGregor (with Mr Carter)

SOLICITOR FOR THE RESPONDENT:

Carter Farquar Mediation & Family Law

Orders

All previous orders shall be discharged.
The child shall live with the mother and the mother shall forthwith be permitted to relocate the child’s residence to the United States of America (“USA”).
The parties shall have equal shared parental responsibility except as to the issue of the child’s schooling and further in relation to the child’s schooling the mother shall consult the father and make best endeavours to reach agreement with him in relation to where the child may be enrolled.
Subject to these orders, during school holidays the father may spend up to seven [7] weeks with the child each year during the child’s USA school holidays.
The father shall only spend the time with the child outlined in paragraph 17 if he complies strictly with the following:
a.the father notifies the mother of his intention to spend time with the child pursuant to these orders at least two [2] calendar months before the child is due to travel to the father, and specifies the exact dates that he seeks to spend time with the child; and
b. the child is returned to the mother in Brisbane at least one [1] week before the child is due to commence school; and
c. the father shall notify the mother where the child shall be staying if the child is not staying at the father’s residence for more than 48 hours when the father is spending time with the child.
The mother shall pay for and arrange the child’s travel to and from the father’s residence in Queensland and accompany the child on her flights to and from the USA for as long as it is necessary to accompany the child.
In the event that the father…

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: [2015] FamCA 59
Decision Date: 11 February 2015

CaseChat Overview and Summary

In the matter of *Caminiti & Caminiti*, Justice Dawe of the Federal Circuit Court of Australia considered orders concerning a child. The proceedings involved an Initiating Application filed by the mother on 27 May 2014, which was ultimately dismissed.

The court was required to determine the living arrangements for the child, including the mother's relocation of the child's residence to the United States of America. Further issues included the nature of parental responsibility, the father's time with the child, and various practical arrangements for the child's care, education, travel, and communication with both parents and extended family. The court also addressed the facilitation of information sharing between the parents regarding the child's schooling and health.

Justice Dawe ordered that the child live with the mother and permitted her to relocate the child to the USA. The parties were granted equal shared parental responsibility, with specific provisions for consultation regarding the child's schooling. The father was granted time with the child during school holidays, subject to strict notification and return conditions. The mother was responsible for the child's travel arrangements to and from the father's residence in Queensland. The orders also stipulated conditions for the father and his family spending time with the child when visiting the USA, and for the mother and father travelling with the child, including restrictions on travel to certain countries. Provisions were made for communication between the child and parents, and for the parents to keep each other informed of the child's well-being and their contact details.

Orders

Orders of the court

All previous orders shall be discharged.

The child shall live with the mother and the mother shall forthwith be permitted to relocate the child’s residence to the United States of America (“USA”).

The parties shall have equal shared parental responsibility except as to the issue of the child’s schooling and further in relation to the child’s schooling the mother shall consult the father and make best endeavours to reach agreement with him in relation to where the child may be enrolled.

Subject to these orders, during school holidays the father may spend up to seven [7] weeks with the child each year during the child’s USA school holidays.

The father shall only spend the time with the child outlined in paragraph 17 if he complies strictly with the following:

a. the father notifies the mother of his intention to spend time with the child pursuant to these orders at least two [2] calendar months before the child is due to travel to the father, and specifies the exact dates that he seeks to spend time with the child; and

b. the child is returned to the mother in Brisbane at least one [1] week before the child is due to commence school; and

c. the father shall notify the mother where the child shall be staying if the child is not staying at the father’s residence for more than 48 hours when the father is spending time with the child.

The mother shall pay for and arrange the child’s travel to and from the father’s residence in Queensland and accompany the child on her flights to and from the USA for as long as it is necessary to accompany the child.

In the event that the father or his immediate family travels to the child’s place of residence, upon giving the mother thirty [30] days’ notice, the father or his immediate family may spend liberal time with the child as agreed between the mother and father but the child must be returned on a weekend by 12 noon the day before school commences unless the parties reach agreement about the father spending overnight time with the child.

Should the father visit the location where the child is residing, the father may spend liberal time with the child, at times agreed between the parties.

The child shall not spend time alone with Mr H (the partner of the maternal grandmother).

10.

Neither party shall change the child’s citizenship.

11.

If the parties are not living within two [2] hours’ drive of each other, the parent with whom the child is living shall email the other party photographs of the child and an update about the child, at least once every two [2] months.

12.

The child shall be at liberty to speak with either parent or Ms S or Mr F on the telephone, Skype or similar at all reasonable times and each parent shall facilitate the child speaking to the other parent at all reasonable times in a reasonable manner.

13.

The parties will keep each other promptly informed as to any emergency, serious illness or serious medical concerns in relation to the child in a timely manner and if there are any matters of an urgent nature, the parent who has the care of the child will notify the other parent immediately.

14.

Each parent shall be entitled to obtain copies of the child’s school and health-care records and to discuss matters with the child’s medical practitioners and specialists and each parent shall sign any necessary authorities to ensure this information can be freely disclosed to each parent.

15.

Neither parent will denigrate the other, or either parties’ family members, in the presence or hearing of the child, nor shall either party involve the child in discussions about any conflict between the parties.

16.

Except as otherwise provided in these orders, the child shall be permitted to travel interstate and/or overseas with either of the parties whilst in their respective care provided that the party with whom the child is to travel provides to the other party not less than fourteen [14] days’ notice and provides itineraries, return plane tickets, contact addresses and telephone numbers for the child whilst they are interstate and / or overseas so that the child can communicate with the other party at all reasonable times, and further:

a. neither party shall permit the child to travel interstate or overseas on school days, unless otherwise agreed in writing;

b. subject to any further order of this Court overseas travel not to occur without the prior written consent of the other party and such consent not to be unreasonably withheld.

17.

Neither party shall take the child to any country that:

a. has a current Australian Government warning which recommends against persons travelling to that country for tourism or like purposes; or

b. is not a Hague Convention country, with the exception of Indonesia.

18.

Should either party refuse to sign a passport application this order shall serve as an authority of that party, for the purpose of a passport application.

19.

Each parent shall keep the other informed of their residential address, postal address (if different), landline telephone number, mobile telephone number and email address at all times and shall notify the other of any changes to their contact details within three [3] days of any change.

20.

The child’s grandmother (Ms M) and Mr M may telephone or Skype the child at any reasonable time.

21.

When travelling on a plane the child shall be accompanied up until an age agreed to by the parties.

22.

The Mother and Father shall jointly together explain these orders made to Y.

23.

The Initiating Application filed by the mother on 27 May 2014 is dismissed and removed from the active pending cases list.

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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