Collu and Rinaldo (No 2)

[2009] FamCA 1235

FAMILY COURT OF AUSTRALIA

COLLU & RINALDO (NO. 2) [2009] FamCA 1235

FAMILY LAW – CHILDREN – Interim parenting proceedings – Mother’s application to have access to child – Relocation – Discretion – Appeal from Family Court – Court of opinion the child should return to United Arab Emirates with his mother, as previously agreed by parties, on date set by the Court, prior to the Full Court determining appeal – Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286, (2007) 36 Fam LR 422

The Family Law Act 1975 (Cth) Part VII
Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286, (2007) 36 Fam LR 422

APPLICANT: Ms Collu

RESPONDENT: Mr Rinaldo

FILE NUMBER: PAC 1204 of 2008

DATE DELIVERED: 2 December 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Coleman J

HEARING DATE: 2 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.F. Curran

SOLICITOR FOR THE APPLICANT: Paul Marsh

COUNSEL FOR THE RESPONDENT: Ms Adams

SOLICITOR FOR THE RESPONDENT: Hamish Cumming Family Lawyers

Orders

1. That the child … be made available to the mother at … Café Sydney International Airport 3 hours prior to the scheduled departure of the airline flight on which the mother and child will return to the United Arab Emirates on Sunday 6 December 2009.

2. That the father collect the child from the mother at the Dubai International Airport on 6 February 2010.

3. It is noted that the father will make the child available to the mother at 3 pm on the child’s birthday in December 2009 and collect the child from the mother at 5 pm on that date from such address as the mother advises the father for that purpose.

4. It is noted that to the extent that any order in that regard is necessary, the mother is able to attend the child’s concert at the Child’s Pre-School on Friday 4 December 2009.

5. That the Court reserves 12 February 2010 for the hearing of competing applications for interim parenting orders subsequent to that date in the event that the Full Court has not delivered judgment in the substantive proceedings by that date.

6. That any affidavits on which the parties intend to rely on 12 February 2010 are to be filed and served by 5 February 2010 and deponents of such affidavits are to be available in person or by telephone for cross examination on any such affidavits.

7. That all other outstanding applications and cross applications be stood over for hearing by a Judicial Registrar on a date and time nominated by the court for that purpose.

8. That on any occasion when the child is passing from one parent to the care of the other parent all legal documents, appropriate food and/or medication for the child is handed over at that time.

9. That costs of both parties of today be reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 1204 of 2008

MS COLLU

Applicant

And

MR RINALDI

Respondent

REASONS FOR JUDGMENT

1. In May of this year, the Court made interim orders pursuant to a stay application which had been filed after the mother in the proceedings filed an appeal against orders made by Stevenson J on 31 March 2009. The Court as constituted on 15 May 2009 was so constituted because Stevenson J was then unavailable to hear the stay application which normally would have been heard by her.

2. In any event, for reasons then given, the Court, in effect, revived interim orders of 18 December 2008, the substance of which was that the child of the parties, who was born in December 2005, spend a month about with the parties. The matter is complicated by geography. The mother who presently resides in the United Arab Emirates, the father who resides in Australia have a regrettably less than satisfactory level of communication.

3. Pursuant to an order made by Boland J, the appeal was heard by the Full Court on 1 September 2009. Not surprisingly, their Honours reserved their judgment in the appeal which, from material filed in this Court in the course of the stay and other proceedings, raised difficult issues as probably every international relocation case does. Regrettably, for reasons which their Honours gave on 1 September, their Honours felt they were unable to deal with the parties’ understandable desire to gain, albeit in different directions, some relief from the strictures of the orders of December 2008.

4. As the record of the proceedings in this Court earlier today would confirm, the Court agreed to deal with what have become competing applications only after ascertaining from the Full Court that their Honours considered such course to be appropriate given that the Full Court is seized of the substantive proceedings.

5. The current dispute effectively comes down to whether the child should return to Dubai with his mother today, as she seeks, or return, as the father now seeks, on Sunday, 6 December. Regrettably, all of this could have been averted had the parties followed through or had recourse to their lawyers to follow through with negotiations which went on between them by email last month. 

6. On balance, if this was all about fault, as Counsel for the mother submits, it would be probable that the Court would find that the failure to communicate and reach what should have been a comparatively simple, sensible resolution lies rather more with the father than with the mother. On the other hand, the Court does not accept on the material before it that either party can rightfully assert the high moral ground and suggest that it was all the fault of the other party.

7. Regrettably, the Court, having the mistaken belief that so doing was in the best interests of the parties, brought the matter forward to an earlier date than might otherwise have been available, some of the difficulties which have existed between the parties have been potentially exacerbated, although it is by no means certain on the material that the parties would otherwise have reached an accommodation. Beyond recording that the failure to reach a sensible agreement involved fault on both sides and that the fault is not overwhelmingly on either side, it is not productive to pursue what the annexures to the various affidavits and the affidavits themselves record and/or assert.

8. The issue requiring determination relates to the welfare of a child. Part VII of the Act makes the paramount consideration the child’s best interests. It is perhaps arguable that these are interim parenting proceedings. Technically they might be, thereby invoking, as the decision of the Full Court in Goode & Goode [2006] FamCA 1346, (2006) FLC 93-286, (2007) 36 Fam LR 422 makes clear, the need for some exploration of the various provisions of Part VII of the Act. However, the Court does not perceive that that is strictly the case.

9. In reality, for reasons which do not now matter, the parties have reached substantial agreement, the effect of that being that the child will spend, broadly speaking, the next two months with his mother, will then return to Australia hopefully at a time when the Full Court has delivered its judgment in the substantive proceedings, but on the basis that the Court has reserved a day, 12 February 2010, for a more judicial consideration of what is to happen subsequent to 12 February 2010. Hopefully that date will become academic, but only time will tell.

10. The immediate issue is whether, as the mother seeks, the child should return to Dubai with her today or, as the father seeks, return with the mother on Sunday. There seems no doubt that for the mother to have to stay until Sunday would be “highly inconvenient”, to adopt the apt description of her position put by her learned Counsel. Having to stay would involve financial expense, and financial loss in not being back in Dubai to earn income. There is no evidence that any penalties would be incurred with the airline which will convey the mother and the child back to the UAE on any day other than today. Whilst the mother did not act unreasonably in coming to Australia for this hearing and assuming that she would be successful and be leaving today with the child, that was, with respect to her, a somewhat optimistic approach to have taken.

11. The Court accepts that were this a contractual dispute, the mother may well be successful, and the child would thus go back with her today. The position is complicated, however, in that, as the evidence reveals, the child has a Christmas function on Friday which it would be reasonable to think that he is looking forward to, and which he has prepared for, in which other children are, at least to some extent, reliant upon him. The child’s birthday is soon and a birthday party has been arranged for Saturday involving the child and a sibling. It would be regrettable for the child, as whenever he leaves, he will not see his father again for two months during which period, of course, the Christmas festive season occurs, were he to miss out on those activities.

12. Having regard to the interests of the child’s welfare and being able to participate in those activities, and spend that time with family members who are important to him, the Court would require very strong and convincing evidence of financial hardship, going beyond inconvenience, before considering that the child should be denied the opportunity to participate in those activities and spend that time with family members. 

13. Albeit not without some apparent reluctance, the father has accepted what is, with respect to his learned Counsel, sound advice in agreeing that the child could spend from 3 pm to 5 pm with his mother on the day of his birthday and has sensibly, albeit it would have been in vain to have done so, not sought to prevent the mother from attending the activities on Friday, the concert and other activities.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate: 

Date:  14 December 2009