FELICI & BAGINI - [2020] FamCA 111

FAMILY COURT OF AUSTRALIA

FELICI & BAGINI

[2020] FamCA 111

FAMILY LAW – CHILDREN – International Relocation – Whether child should remain in the primary care of the father in Australia or relocate to Europe to live in the primary care of the mother – Order that child live with the father – Declaration made that Australia be the habitual residence of the child – Order that the mother and father have equal shared parental responsibility for the child – Orders that child spend time with the mother in Europe and Australia – Orders that mother communicate with the child.

FAMILY LAW – COSTS – Application by father seeking a costs order that the mother pay her costs of the substantive proceedings – Where the mother filed a cross claim for the costs of the substantive proceedings against the father –Applications dismissed.

J v C in [1969] 1 All ER at 824

Yamada & Cain [2013] FamCAFC 64
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & Ors [2005] FamCA 158
Cachia v Hanes (1994) 179 CLR 403

Family Law Act 1975 (Cth) ss 60CC and 117

APPLICANT:

Mr Felici

RESPONDENT:

Ms Bagini

FILE NUMBER:

LNC

236

2019

DATE DELIVERED:

17 February 2020

PLACE DELIVERED:

Launceston

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

17 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Higgins

SOLICITOR FOR THE APPLICANT:

Bishops

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

No appearance

Orders

All previous parenting orders in relation to X born … 2016 (‘the child’) be and are hereby discharged.
IT IS DECLARED that Australia is the habitual residence of the child.
The child shall live with Mr Felici (‘the father’).
The father and Ms Bagini (‘the mother’) shall have equal shared parental responsibility for the child.
The child shall spend time with the mother as follows:-
a) until 1 February 2021, once a year in Italy for a period of four (4) weeks as agreed in writing between the parties. The periods of time with the mother shall be broken up into periods of up to five (5) consecutive nights with the mother then in the care of the father for one (1) night then back to the mother for up to five (5) etc (such as 5 nights with mother, 1 night with father; up to 5 nights with mother, 1 night with father; up to 5 nights with mother, 1 night with father; up to 5 nights with mother, 1 night with father; up to 3 nights with mother, 1 night with father);
b) from 1 February 2021, once a year in Italy for a period of four (4) weeks to coincide whenever possible with the Tasmanian school holiday period. The periods of time with the mother shall be broken up into periods of up to five (5) consecutive nights with the mother then in the care of the father for one (1) night then back to the mother for five (5)…

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 FELICI & BAGINI

Details

AGLC: FELICI & BAGINI [2020] FamCA 111
Case: [2020] FamCA 111
Decision Date: 17 February 2020

CaseChat Overview and Summary

In the matter of *Felici & Bagini*, Benjamin J of the Family Court of Australia determined competing applications concerning the future residence and parental responsibility of a child born in 2016. The father, Mr Felici, sought orders for the child to live with him in Australia and for Australia to be declared the child's habitual residence. The mother, Ms Bagini, sought the child to relocate to Europe to live with her.

The court was required to determine whether the child should remain in Australia with the father or relocate to Europe with the mother, and consequently, what orders for parental responsibility, time spent with each parent, and communication should be made. The court also considered applications for costs made by both parties.

Benjamin J ordered that all previous parenting orders be discharged and declared Australia to be the child's habitual residence. The child was ordered to live with the father, and both parents were granted equal shared parental responsibility. The court made detailed orders for the child to spend time with the mother in Italy, including specific arrangements for travel, communication, and school attendance, with provisions for the registration of the orders in Italy. The applications for costs made by both the father and the mother were dismissed.

Orders

Orders of the court

All previous parenting orders in relation to X born … 2016 (‘the child’) be and are hereby discharged.

IT IS DECLARED that Australia is the habitual residence of the child.

The child shall live with Mr Felici (‘the father’).

The father and Ms Bagini (‘the mother’) shall have equal shared parental responsibility for the child.

The child shall spend time with the mother as follows:-

a) until 1 February 2021, once a year in Italy for a period of four (4) weeks as agreed in writing between the parties. The periods of time with the mother shall be broken up into periods of up to five (5) consecutive nights with the mother then in the care of the father for one (1) night then back to the mother for up to five (5) etc (such as 5 nights with mother, 1 night with father; up to 5 nights with mother, 1 night with father; up to 5 nights with mother, 1 night with father; up to 5 nights with mother, 1 night with father; up to 3 nights with mother, 1 night with father);

b) from 1 February 2021, once a year in Italy for a period of four (4) weeks to coincide whenever possible with the Tasmanian school holiday period. The periods of time with the mother shall be broken up into periods of up to five (5) consecutive nights with the mother then in the care of the father for one (1) night then back to the mother for five (5) etc (such as 5 nights with mother, 1 night with father; 5 nights with mother, 1 night with father; 5 nights with mother, 1 night with father; 5 nights with mother, 1 night with father; 2 nights with mother, 1 night with father);

c) from 8 July 2023, once a year in Italy for a period of four (4) weeks to coincide whenever possible with the Tasmanian school holiday period on such dates as agreed in writing between the parties;

d) on such occasions when the mother is in Tasmania with the mother to provide the father with one month’s written notice as to the exact days when she will be in Tasmania and when she is proposing that the child spend time with her.

For the purpose of order 5 herein, the child’s time in Italy will not commence until there is registration of this order made by the Family Court of Australia or the making of a reciprocal mirror order in the Italian Courts.

For the purpose of order 5 herein the mother shall confirm in writing at least 30 days prior to any visit the residential address/es to where the child will be staying while in her care.

For the purpose of order 5 herein, the child is not to be absent from school for more than ten (10) consecutive days if the time is during the school term.

Until 8 July 2023, the father is to be responsible for the child’s travel between Tasmania and Italy including accompanying the child on flights and the mother is to reimburse the father for one half of the cost of economy flights for the father and the child within twenty one (21) days of the father producing the invoice/s.

10.

From 8 July 2023, for the purpose of the child spending time with the mother in Italy, the mother shall be responsible for the child’s travel between Tasmania and Italy including accompanying the child on flights.

11.

From 8 July 2023, for the purpose of the child spending time with the mother in Italy, the father shall be responsible for the child’s travel between Italy and Tasmania including accompanying the child on flights.

12.

In relation to all overseas travel, the parties must on each occasion, provide to the other party, at least fourteen (14) days prior to the child leaving Australia, the following:-

a) details of the child’s flights confirming such flights are booked using the child’s Australian passport;

b) a copy of return airline tickets in the child’s name; and

c) an itinerary including the places at which the child will be staying and the addresses and, where possible, the landline telephone number of each place.

13.

The father shall retain the child’s passport at all times apart from when the child is travelling with the mother.

14.

Any agreed changes to the child’s travel arrangements should be made in writing and signed by both parties.

15.

The parties shall do all such acts and sign all such documents necessary to ensure the child has an up to date Australian passport and sign all necessary travel documents.

16.

In the event that the mother fails to sign the documentation as referred to in Order 15, within twenty one (21) days of such request being made, that this Order act as an Authority for the Australian Passport Office to proceed to process the application for a passport for the child in the absence of the mother’s signature.

17.

For the purposes of these Orders, school holidays are defined as commencing on the day school finishes and concluding on the day before school starts in accordance with the term dates for Tasmanian Government school students prepared by the Department of Education, Tasmania.

18.

The father be listed forthwith as the emergency contact person at the child's school and he provide a copy of these orders to the school which the child attends.

19.

The father be permitted to provide a copy of these orders to any psychologist or other treating medical professional of the child.

20.

The father is permitted to remove the child from Australia to travel overseas as follows:-

a) for the purpose of facilitating the child’s time with the mother pursuant to Order 5 herein;

b) until 1 February 2021, once a year for a period of four (4) weeks as agreed in writing between the parties; and

c) from 1 February 2021 onwards once a year for a period of four (4) weeks to coincide whenever possible with the Tasmanian school holiday period and ensuring the child is not to be absent from school for more than ten (10) consecutive days if the time is during the school term.

21.

During any overseas travel, the parties shall ensure the child communicates with the other party by Skype, FaceTime or telephone on two occasions each week for up to 15 minutes on each Thursday and Sunday.

22.

The child shall communicate with the mother by Skype, FaceTime or telephone on each Thursday and Sunday at 7.30am (Tasmanian time) with the mother to initiate the call to the child and at such other times as reasonably requested by the child.

23.

There be leave for counsel for the father to provide a copy of the Family Report dated 11 December 2019 to the father’s Italian legal representatives in the event that the mother has not withdrawn her application for parenting orders before the Italian Courts upon the making of these Orders.

24.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

25.

All extant applications are dismissed except as to costs.

26.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS DIRECTED

27.

The father, as soon as practicable, have the reasons and orders translated to Italian and seek to have the orders registered in Italy pursuant to the Child Protection Convention of which both Australia and Italy are signatories.

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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