CONTADINI & GEORGIOU - [2020] FamCA 807

FAMILY COURT OF AUSTRALIA

CONTADINI & GEORGIOU

[2020] FamCA 807

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where interim orders were made in 2018 permitting the mother to relocate the child’s residence to a European country – Where the mother seeks the interim orders as final orders – Where the father seeks that the child return to live in Darwin with him and spend time with the mother – Where the father has spent time with the child during the period of the adjournment but not recently due to COVID-19 – Where the mother has encouraged and supported the relationship of the child with the father – Where the child has adapted to and is now well settled in the European country – Where the child has a strong relationship with both parents – Consideration of the impact of COVID-19 – Where a meaningful relationship can be maintained with the father if the child remains in the European country – Best interests of the child – Orders.

FAMILY LAW – PRACTICE AND PROCEDURE – Hearing – Where the mother and child were unable to return to Australia as per the interim orders – Where the final hearing was conducted via Microsoft Teams.

Family Law Act 1975 (Cth) ss 60CA, 60CC
Evidence Act 1995 (Cth) s 144

Blanding & Blanding [2016] FamCAFC 21
Beckham & Desprez [2015] FamCAFC 247

APPLICANT:

Ms Contadini

RESPONDENT:

Mr Georgiou

FILE NUMBER:

DNC

520

2017

DATE DELIVERED:

24 September 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

17 and 18 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Franz

SOLICITOR FOR THE APPLICANT:

Darwin Family Law

COUNSEL FOR THE RESPONDENT:

Ms Bowen

SOLICITOR FOR THE RESPONDENT

Bowen Lawyers, Barristers & Solicitors

Orders

That all previous orders be discharged.
That the parties have equal shared parental responsibility for X born … 2010 (“the child”).
That the mother and the father 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 in the event that the parties cannot come to a joint decision about a major long-term decision concerning the children’s health the mother will have sole parental responsibility for matters affecting the child’s health.
That the child live with the mother.
That the child spend time with the father subject to compliance with the COVID-19 restrictions on travel and social distancing as may be imposed by any State, Territory or the Commonwealth of Australia as follows:-
(a) In 2021 and each alternate year thereafter:-
(i)during the Country B Easter/spring school holidays for a period of two (2) weeks;
(ii)during the Country B summer school holidays for a period of five (5) weeks;
(b) In 2022 and each alternate year thereafter:-
(i)during the Country B summer school holidays for a period of five (5) weeks;
(ii)during Christmas holidays for 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 CONTADINI & GEORGIOU

Details

AGLC: CONTADINI & GEORGIOU [2018] FamCA 807
Case: [2020] FamCA 807
Decision Date: 24 September 2020

CaseChat Overview and Summary

The case of Contadini & Georgiou concerned a dispute between the mother and father regarding the residence and time spent with their child, X. Interim orders made in 2018 had permitted the mother to relocate X to a European country. The mother sought to have these interim orders made final, while the father sought orders for X to live with him in Darwin and spend time with the mother. The final hearing was conducted via Microsoft Teams due to the mother and child's inability to return to Australia.

The court was required to determine the best interests of the child, X, in light of the proposed arrangements. Specifically, the court had to consider the impact of the COVID-19 pandemic on the father's ability to spend time with X, the child's adaptation and settlement in the European country, and the maintenance of a meaningful relationship with both parents. The court also had to address the practicalities of travel and communication between the parents and X, given their geographical separation.

In its reasoning, the court acknowledged that X had adapted well to living in the European country and had a strong relationship with both parents. The court considered that a meaningful relationship with the father could be maintained despite the distance, particularly in light of the mother's support for X's relationship with his father. The court also took into account the impact of COVID-19 on travel and visitation. The court ultimately made orders for equal shared parental responsibility, with X to live with the mother. The father was to spend time with X during school holidays, with specific provisions for travel and communication, subject to COVID-19 restrictions. The court also made detailed orders regarding communication between the parents and access to information about X's health and education.

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 the mother and the father 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 in the event that the parties cannot come to a joint decision about a major long-term decision concerning the children’s health the mother will have sole parental responsibility for matters affecting the child’s health.

That the child live with the mother.

That the child spend time with the father subject to compliance with the COVID-19 restrictions on travel and social distancing as may be imposed by any State, Territory or the Commonwealth of Australia as follows:-

(a) In 2021 and each alternate year thereafter:-

(i) during the Country B Easter/spring school holidays for a period of two (2) weeks;

(ii) during the Country B summer school holidays for a period of five (5) weeks;

(b) In 2022 and each alternate year thereafter:-

(i) during the Country B summer school holidays for a period of five (5) weeks;

(ii) during Christmas holidays for a period of two (2) weeks to include Christmas Day;

(c) On the child’s birthday, Father’s Day, the father’s birthday and at such other times as may be agreed between the parties in the event that both parents are in the same location;

(d) On any occasion should the father travel to Europe for up to fourteen (14) days on no more than one (1) occasion in each calendar year at the father’s costs and PROVIDED that should the time fall during school terms THEN the father shall ensure the child’s attendance at school and that any extra-curricular activities to which the child is enrolled are undertaken and PROVIDED THAT neither the child or the father shall be compelled to undertake self or enforced quarantine in order to give effect to these orders.

That for the purpose of the child spending time with the parent with whom he does not live, unless the parties otherwise agree in writing as follows:-

(a) The parents shall equally pay for the costs of all flights for the child to spend time with him or her on the basis that the father will pay the entire costs of travel for the child from Country B to Australia and the mother will pay the entire costs of the child’s travel from Australia to Country B;

(b) That the father shall give the mother at least ninety (90) days’ notice in writing of the travel arrangement that he has made including a return flight, travel itinerary, address and telephone details of where the child will be staying and if applicable a notice in writing from the airline that the child has been booked to fly as an “unaccompanied minor” from the airport nearest the residence of the mother to the airport nearest the residence of the father and return;

(c) 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; and

(d) The parent collecting the child shall telephone the other as soon as possible after collecting the child from the airport to confirm his arrival.

That the child have the following parental communication with the parent he is not living or spending time with as follows:-

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

That for the purpose of communicating information between the parents, the mother and the father shall communicate:-

(a) by telephone or text message in circumstances of an urgent nature and otherwise;

(b) by email about day to day matters including arrangements for each party to spend time with the child.

10.

That each party shall advise the other and keep the other advised as follows of:-

(a) the child’s residential address;

(b) telephone numbers at which the child can be contacted; and

(c) any email address to which the child can have access and shall notify any change in such details within forty eight (48) hours thereafter.

11.

That each of the parties shall 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 either 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.

12.

That upon the child attaining the age of fourteen (14) years the mother shall take all necessary steps for the child to attend upon a professionally accredited psychologist or such other suitably qualified practitioner for the child to be afforded an opportunity if he shall so request to enable him to express his wish to remain living with the mother or to live with the father with the parties to jointly instruct the practitioner to prepare a report detailing the child’s wishes (if any) and to release same to each of the parties at their joint and equal cost.

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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