Caravaggio & Caravaggio - [2011] FamCA 254

FAMILY COURT OF AUSTRALIA

CARAVAGGIO & CARAVAGGIO

[2011] FamCA 254

FAMILY LAW - CHILDREN – Relocation – Best interests – Where mother resides in Melbourne with the children and father resides in Sydney – Where children enjoy good relationships with both parents – Where the mother is the primary carer of the children – Where relocating children to Sydney not in the children’s best interest

Family Law Act 1975 (Cth) ss 60B, 60CC

AMS v AIF (1999) 199 CLR 160
Collu & Rinaldo [2010] FamCAFC 53
Goode & Goode (2006) FLC 93-286
Hepburn & Noble (2010) FLC 93-438
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Sealey & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker (2007) FLC 93-345
U & U (2002) FLC 93-11

APPLICANT:

Mr Caravaggio

RESPONDENT:

Ms Caravaggio

FILE NUMBER:

SYC

4425

2009

DATE DELIVERED:

14 April 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

15, 16 & 17 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Livingston

SOLICITOR FOR THE APPLICANT:

Armstrong Legal

COUNSEL FOR THE RESPONDENT:

Ms Byrnes

SOLICITOR FOR THE RESPONDENT:

Purcell & Purcell

Consent Orders made 17 February 2011

The mother and the father have equal shared parental responsibility for the children of the marriage, T and B both born on … February 2007 (“the children”).
That during the times the children are in the care of either the mother or the father each party be at liberty to contact the children by way of telephone each night between 6:00 pm and 7.00 pm and each parent is to facilitate such calls.
During the times the children are in the care of either the mother or the father each party be at liberty to communicate with the children by way of Skype between 7.00 pm to 8.00 pm on Saturday’s and Sundays and as otherwise agreed between the parties. Such arrangements to commence within seven (7) days of the date of these orders and both parties are at all times required to have the requisite computer and internet facilities to facilitate same at their own expense.
Both the mother and the father do all such acts and sign all such documents necessary to apply for passports for each of the children within fourteen (14) days from the date of these orders and each party equally share the costs of same.
The mother retain such passports.
The parties are to do all such acts and things and sign all such documents to ensure that the children always have a valid passport.
The father be at liberty to take the children on a holiday to Europe in 2011 and shall provide to the mother in writing, at least twenty-eight (28) days before such travel, a copy of the departure and return flight tickets for the children and the father, itinerary including places of accommodation and contact telephone numbers.
The mother be at liberty to take the children on a…

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 Caravaggio & Caravaggio

Details

AGLC: Caravaggio & Caravaggio [2011] FamCA 254
Case: [2011] FamCA 254
Decision Date: 14 April 2011

CaseChat Overview and Summary

The case of *Caravaggio & Caravaggio* concerned an application by the mother for permission to relocate with the two children of the marriage from Melbourne to Sydney. The father opposed this relocation. The proceedings were heard by Ryan J in the Family Court of Australia.

The central legal issue before the Court was whether the proposed relocation of the children to Sydney was in their best interests, as required by the *Family Law Act 1975* (Cth). This required the Court to consider various factors relevant to the children's welfare, including their relationships with each parent and the practical implications of the proposed move.

Ryan J determined that the relocation was not in the children's best interests. The Court found that while the children had good relationships with both parents, the mother was the primary carer. The Court's reasoning focused on the potential disruption to the children's established lives and their existing relationships in Melbourne, weighing this against the benefits of the proposed move to Sydney. The Court concluded that the disadvantages of relocation outweighed any potential advantages.

The Court ordered that the children remain living in Melbourne with the mother.

Orders