Contadini and Georgiou - [2018] FamCA 701

FAMILY COURT OF AUSTRALIA

CONTADINI & GEORGIOU

[2018] FamCA 701

FAMILY LAW – CHILDREN – With whom a child lives – International relocation – Where the mother seeks to relocate to a European country with the child – Where the mother will relocate irrespective of the outcome of these proceedings – Best interests of a child – Meaningful relationship – Where the mother and father currently have an equal shared care arrangement – Following hearing orders are made on an interim basis and the matter to be reconsidered at a later date.

Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 65DAA, 69ZN, 69ZT, 69ZT(3)(b)

AMS v AIF (1999) 199 CLR 160
Godfrey & Sanders [2007] FamCA 102
H & W (1995) FLC 92-598
Mazorski & Albright [2007] FamCA 520
R and R: Children’s wishes (2000) FLC 93-000
Starr & Duggan [2009] FamCAFC 115
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT:

Ms Contadini

RESPONDENT:

Mr Georgiou

FILE NUMBER:

DNC

520

2017

DATE DELIVERED:

12 September 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Berman J

HEARING DATE:

21 - 23 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Franz

SOLICITOR FOR THE APPLICANT:

Darwin Family Law

COUNSEL FOR THE RESPONDENT:

Ms Romeo

SOLICITOR FOR THE RESPONDENT:

Margaret Orwin Barrister & Solicitor

Orders

That all previous orders be discharged.
That the parties have equal shared parental responsibility for X born … 2010 (“the child”).
That each party will make a genuine effort to come to a joint decision about all major long term decisions including:-
(a)       The child’s education;
(b)       The child’s religious and cultural upbringing; and
(c)       The child’s health.
That the parties’ application for final orders be listed for hearing in the Darwin Circuit of the Family Court of Australia in the August 2020 listings.
That the child live with the father until 1 January 2019.
That as and from 1 January 2019 and during the period of the adjournment the child shall live with the mother and the mother be permitted to relocate his residence to Country B.
That the mother and child return to the Commonwealth of Australia on or before 20 July 2020.
That as and from 20 July 2020 the child live in Darwin with the parties on an alternating week about basis pending the outcome of the final hearing.
That pursuant to s 62G(2) of the Family Law Act 1975 (Cth) the parties and the child attend upon and at the direction of a family consultant nominated and appointed by the Director of Child Dispute Services for the purposes of the preparation of a family report to be conducted in the Darwin Registry and completed and released by 10 August 2020.
That during the period of adjournment the child shall spend time with the father as agreed between the parties in writing and failing agreement as follows:-
(a)For five (5) weeks in July (Summer) school holidays in 2019 in Darwin;
(b)For two (2) weeks in the…

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 Contadini and Georgiou

Details

AGLC: Contadini and Georgiou [2018] FamCA 701
Case: [2018] FamCA 701
Decision Date: 12 September 2018

CaseChat Overview and Summary

The case of *Contadini and Georgiou* involved an application before Berman J of the Family Court of Australia concerning parenting orders for a child born in 2010. The dispute centred on arrangements for the child's residence, time spent with each parent, and decision-making regarding the child's upbringing, particularly in the context of potential international relocation.

The court was required to determine a range of issues relating to the child's welfare, including the establishment of equal shared parental responsibility, the specific living arrangements for the child, and the terms under which the mother would be permitted to relocate with the child to Country B. Further issues included the child's return to Australia, ongoing time arrangements pending final orders, and the process for obtaining a family report. The court also had to consider provisions for parental communication, the exchange of information, and access to professional reports concerning the child.

Berman J made detailed orders addressing these matters. The court ordered equal shared parental responsibility and outlined a complex schedule for the child's residence, initially with the father, then with the mother including relocation to Country B, and subsequently alternating between parents in Darwin. The orders also stipulated conditions for the mother's return to Australia and detailed provisions for the child spending time with the non-resident parent, including financial responsibilities for travel and notice requirements. The court further mandated parental communication protocols, the sharing of information, and direct access to professional reports. Injunctions were granted to prevent denigration of parents and to regulate contact with the child. Finally, the court directed the mother to make enquiries regarding the recognition and enforceability of Australian orders in Country B under the Child Protection Convention, with specific conditions for international travel contingent on such recognition.

Orders

Orders of the court

That all previous orders be discharged.

That the parties have equal shared parental responsibility for X born … 2010 (“the child”).

That each party will make a genuine effort to come to a joint decision about all major long term decisions including:-

(a) The child’s education;

(b) The child’s religious and cultural upbringing; and

That the parties’ application for final orders be listed for hearing in the Darwin Circuit of the Family Court of Australia in the August 2020 listings.

That the child live with the father until 1 January 2019.

That as and from 1 January 2019 and during the period of the adjournment the child shall live with the mother and the mother be permitted to relocate his residence to Country B.

That the mother and child return to the Commonwealth of Australia on or before 20 July 2020.

That as and from 20 July 2020 the child live in Darwin with the parties on an alternating week about basis pending the outcome of the final hearing.

That pursuant to s 62G(2) of the Family Law Act 1975 (Cth) the parties and the child attend upon and at the direction of a family consultant nominated and appointed by the Director of Child Dispute Services for the purposes of the preparation of a family report to be conducted in the Darwin Registry and completed and released by 10 August 2020.

10.

That during the period of adjournment the child shall spend time with the father as agreed between the parties in writing and failing agreement as follows:-

(a) For five (5) weeks in July (Summer) school holidays in 2019 in Darwin;

(b) For two (2) weeks in the December/January (Spring) school holidays in Darwin, from 28 December 2019;

(c) On any occasion should the father travel to Europe (Country B, Country D or another agreed location) for up to 14 days on no more than two (2) occasions at his cost provided the time does not interfere with the child’s schooling.

11.

That in the event that the mother returns to reside in Darwin:-

(a) During school terms the child shall live with the parents on an alternating week about basis;

(b) During school holidays the child shall live with each parent for half of all school holidays as agreed between the parties and failing agreement, with the mother for the first half and with the father for the second half in even years and with the father for the first half in odd-numbered years and with the mother for the second half in odd-numbered years;

(d) With the father for the father’s birthday and Father’s Day; and

(e) With the mother for the mother’s birthday and Mother’s Day.

12.

That for the purpose of the child spending time with the parent with whom he does not live (“the spend time with parent”) the time shall be spent as agreed between the parties in writing and failing agreement as follows:-

(a) The parents shall equally pay for the costs of all flights for the child to spend time with him/her;

(b) The child shall be accompanied on all international flights by a parent or family member or as an “unaccompanied minor” according to the airline’s minimum age requirement;

(d) The spend time with parent shall give the parent the child is living with (“the live with parent”) at least ninety (90) days’ notice in writing of the travel arrangements that she or he has made, including details of the return flight and travel itinerary, address and telephone details of where the child will be staying and,

(e) if applicable, a notice in writing from the airline that the child has been booked to fly as an “unaccompanied minor” to travel to the airport nearest the residence of the live with parent (or such other airport as agreed between the parents) to the airport nearest the residence of the spend time with parent (or such other airport as agreed between the parents) and return;

(f) If either parent causes the child to miss a flight then the parent who is responsible for the missed flight will pay for the next available flight;

(g) That the parent who is collecting the child shall telephone the other as soon as possible after collecting the child from the airport to confirm the child’s arrival.

13.

That the child have the following parental communication with the parent he is not living with:-

(a) Telephone and Skype conversations with the parent on days and at times as is agreed between the parties, and failing agreement on two (2) occasions per week for up to one (1) hour on each occasion and to facilitate such telephone calls the parent who has the care of the child will ensure that the child is made available to speak with the other parent;

(b) Telephone conversations with the other parent as the child may request and the parent who has the care of the child will facilitate the making of such telephone call or calls;

14.

That for the purposes of communicating information between the parents the parties shall communicate:-

(a) By telephone or text message about matters of an urgent nature;

(b) By email about day to day matters including arrangements for each party to spend time with the child and such communication is restricted to matters pertaining to the child only and not to the interpersonal relationship as between the parties.

15.

That each of the parties shall advise the other of:-

(a) Their residential address;

(b) Telephone numbers(including landline and mobile) at which they and the child can be contacted; and

and shall notify any change in such details within forty eight (48) hours.

16.

That each of the parents be entitled to obtain directly from any health or welfare professional, educational institution or any other professional attended by the child, copies of any reports, notices of other relevant verbal or written advice relating to the health, education and welfare of the child and for this purpose, each of the parties shall immediately notify the other party of the names and contact details of any relevant health or welfare professional or educational institution and keep the other so informed.

17.

That the parents will do all acts and things to enrol the child with a professionally accredited counsellor and the following shall apply:-

(a) If the child is living in Darwin or in Country B he is to attend appointments with a counsellor as may be agreed between the parties;

(b) Both parents will follow the reasonable directions of the counsellor including but not limited to the frequency and duration of the sessions and any associated referrals for the child and/or the parents;

(d) The parent with whom the child is living shall pay for the costs of counselling.

18.

That without admission to liability, each parent be restrained by an injunction from:-

(a) Denigrating the other parent or members of the other parents’ family including via social media, but not limited to the child or in the child’s hearing or presence or allowing anybody else to do so;

(b) Entering into or remaining at the residence of each of the parties except with their prior written consent;

(d) Physically disciplining the child;

(e) That the parents be restrained and an injunction granted restraining them from:-

(i) Questioning the child about the other parent’s household;

(ii) Discussing or otherwise exposing the child to unnecessary particulars of the Family Law proceedings.

19.

That changeovers for the child shall occur as agreed between the parties and failing agreement at the Darwin International Airport or City E International Airport and the following shall apply:-

(a) That the mother shall collect and return the child for the December/January school holidays;

(b) That the father shall collect and return the child for the mid-year school holiday period.

20.

That during the period of the adjournment the mother will make all relevant enquiries in order to determine whether the Court on the adjourned date is able to make the following proposed order:-

(a) That the mother has obtained from a Court of competent jurisdiction in Country B recognition pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at the Hague on 19 October 1996 (“the Child Protection Convention”) of the orders of the Family Court of Australia made in these proceedings; or

(b) That she has obtained from a Court of competent jurisdiction in Country B a Declaration of Enforceability in Country B pursuant to Article 26 of the Child Protection Convention of the orders made in the Family Court of Australia and of these orders; or

(c) That she has registered in a Court of competent jurisdiction in Country B pursuant to Article 26 of the Child Protection Convention, the orders of the Family Court of Australia and these orders, she will be entitled to remove the child from Australia at the expiration of seven (7) days from the date upon which the documentary proof has been served on the father.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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