FERRANTE & GUILIANI - [2016] FamCA 1042

FAMILY COURT OF AUSTRALIA

FERRANTE & GUILIANI

[2016] FamCA 1042

FAMILY LAW – CHILDREN – Relocation – Contested Application to relocate internationally with the child – Where mother seeks to relocate to New Zealand in order to live with new partner and new partner’s family – Practicality of proposed spend time arrangements where international relocation is contemplated – Where father argues that the nature of his relationship with the child will change at a fundamental level if the relocation is permitted – Meaning of “substantial and significant time” – Relocation permitted.

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the father for leave to adduce further evidence – Application refused.

Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61B, 63DA(3), 64B(2)(i), 65DAA, Div 12A

AMS v AIF (1999) 199 CLR 160
Jurchenko & Foster (2014) FLC 93-598
Mazorski & Albright (2007) FamCA 520
Morgan & E (2007) FLC 93-343
MRR v GR (2010) 240 CLR 461
Reid v Brett [2005] VSC 18
Sayer & Radcliffe [2012] FamCAFC 209
Smith v New South Wales Bar Association (1992) 176 CLR 256
Suell & Suell (Re-Opening) [2009] FamCA 55
U v U (2002) 211 CLR 238
Ulster & Viney [2016] FamCAFC 133

APPLICANT:

Ms Ferrante

RESPONDENT:

Mr Guiliani

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

2031

2015

DATE DELIVERED:

5 December 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

8, 9, 12, 13, 14 & 15 September 2016 and 5 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Maxwell Grant

SOLICITOR FOR THE APPLICANT:

CE Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Olyvia Nikou QC (on 8, 9, 12, 13, 14 & 15 September 2016) and Mr Christopher Arnold (on 5 December 2016)

SOLICITOR FOR THE RESPONDENT:

Bentleys Barristers & Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Paul Glass (on 8, 9, 12, 13, 14 & 15 September 2016) and Mr Daniel Piekarski (on 5 December 2016)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

IT IS ORDERED THAT

The father’s Application in a Case filed 1 December 2016 be dismissed.
All previous parenting orders be discharged.

BY CONSENT IT IS ORDERED THAT

The parents have equal shared parental responsibility for the child B born … 2007 (“the child”).
The child live with the mother.

IT IS ORDERED THAT

From 21 December 2016, the mother be permitted to relocate with the child to City C, New Zealand
After the mother and the child relocate to New Zealand, the child spend time with the father:
(a)For one weekend every month alternating between the child travelling to Australia to spend time with the father on Thursday and returning to New Zealand on Sunday, unless otherwise agreed, in one month and the father spending time with the child in City C for no less than from 9.00 am Saturday until 5.00 pm Sunday in the other month;
(b)During the New Zealand school holidays, by agreement but…

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.

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Details

AGLC: FERRANTE & GUILIANI [2016] FamCA 1042
Case: [2016] FamCA 1042
Decision Date: 5 December 2016

CaseChat Overview and Summary

In the matter of *Ferrante & Guiliani*, Thornton J of the Family Court of Australia considered a contested application by the mother for permission to relocate internationally with the child to New Zealand. The mother sought to relocate to live with her new partner and his family. The father opposed the relocation, arguing that it would fundamentally alter his relationship with the child. The court also dealt with an application by the father for leave to adduce further evidence, which was refused.

The primary legal issue before the court was whether to permit the mother to relocate with the child to New Zealand, and if so, what arrangements for the child's time with the father and communication between the parents and child would be appropriate. This involved considering the practicality of proposed spend time arrangements in the context of international relocation and the meaning of "substantial and significant time" in relation to the father's relationship with the child.

Thornton J permitted the relocation, finding that the proposed arrangements would allow the child to spend substantial and significant time with the father and maintain their relationship. The court's reasoning, while not detailed in the provided text, led to comprehensive orders addressing equal shared parental responsibility, the child living with the mother, and detailed provisions for the child's time with the father, including travel arrangements, communication protocols, and holiday schedules. The orders also included provisions for overseas travel by either parent with the child, passport maintenance, and the exchange of information regarding the child's education, healthcare, and extracurricular activities.

Orders

Orders of the court

IT IS ORDERED THAT

The father’s Application in a Case filed 1 December 2016 be dismissed.

All previous parenting orders be discharged.

BY CONSENT IT IS ORDERED THAT

The parents have equal shared parental responsibility for the child B born … 2007 (“the child”).

The child live with the mother.

IT IS ORDERED THAT

From 21 December 2016, the mother be permitted to relocate with the child to City C, New Zealand

After the mother and the child relocate to New Zealand, the child spend time with the father:

(a) For one weekend every month alternating between the child travelling to Australia to spend time with the father on Thursday and returning to New Zealand on Sunday, unless otherwise agreed, in one month and the father spending time with the child in City C for no less than from 9.00 am Saturday until 5.00 pm Sunday in the other month;

(b) During the New Zealand school holidays, by agreement but failing agreement:

(i) for the second half of the school holiday period occurring between term one and term two;

(ii) for the entire school holiday period occurring between term two and term three; and

(iii) for the second half of the school holiday period occurring between terms three and term four;

BY CONSENT

(i) for the last three weeks in the 2016/2017 years and each alternate year thereafter; and

(ii) for the first four weeks in the 2017/2018 years and each alternate year thereafter;

with the long-term summer holidays to commence the second day after the school term concludes and to conclude the second day before the school term commences.

IT IS ORDERED THAT

After the mother and the child relocate to New Zealand, the father’s time be suspended by agreement, but failing agreement:

(a) For the first half of the school holiday period occurring between term one and term two;

(b) For the first half of school holiday period occurring between terms three and term four; and

(a) for the first three weeks in the 2016/2017 years and each alternate year thereafter; and

(b) for the last two weeks in the 2017/2018 years and each alternate year thereafter;

with the long-term summer holidays to commence the second day after the school term concludes and to conclude the second day before the school term commences.

For the purposes of paragraphs (6) and (7):

(a) the parties arrange for the child to travel as an unaccompanied minor;

(b) the parties each pay for half of the child’s return airfares between Melbourne and City C airport;

(d) the father arrange at his expense his transport including airfares to and from City C airport;

(e) if either party is not personally transporting the child to or from the airport, they notify the other party in advance who will be doing so.

After the mother and the child relocate to New Zealand:

(a) the child communicate with the father by telephone, FaceTime or Skype three times weekly:

(i) on Monday, Wednesday and Friday at 6.00 pm Australian Eastern Standard Time;

(ii) at any other time the child wishes to communicate with the father; and

(iii) at other times as may be agreed between the parties;

(b) for the purposes of that communication, the mother arrange for the child to telephone the father on a phone number provided by the father, unless the father notifies the mother of his preference to communicate using FaceTime or Skype, in which case the mother will ensure that communication by that means occurs at the specified time.

10.

When the child spends time with the father, the mother may communicate with the child at the same times and in the same way as the father when the child is with the mother pursuant to paragraph (9) of this order.

BY CONSENT IT IS ORDERED THAT

11.

Each of the mother and father be permitted to travel overseas with the child during any period that they are spending time with the child subject to and conditional upon:

(a) the travelling parent providing in writing to the other parent:

(i) not less than 30 days prior to the intended departure date notice of the following:

A. the countries to which the child will travel and with whom the child will travel together with a comprehensive itinerary including the airline;

B. the intended destination being a signatory country to the Hague convention;

C. a contact number upon which the child and the travelling parent may be contacted;

D. the address at which the child shall reside;

(ii) not less than seven days prior to departure provide:

A. a final itinerary for the child and accompanying travellers;

B. the date of the child’s departure and return; and

C. the travelling parent providing the other parent with a copy of the child’s return travel tickets.

IT IS ORDERED THAT

12.

The father and mother do all such acts and things and sign all such documents to ensure the child has a current Australian passport at all times.

13.

The parties provide a copy of these orders to any school which the child may from time to time attend.

14.

The mother do all such acts and things and sign all such documents to request and authorise any school at which the child attends from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitations for parent teacher interviews and other information relating to the child’s education to both parents at the expense of the mother if any.

15.

The mother and father both be permitted to attend all school activities including school concerts, school plays, excursions, parent teacher interviews and events usually attended by parents.

16.

Each parent give all necessary consents and authorities to enable the other parent to obtain information concerning the child’s education, healthcare and extra- curricular activities in Australia or New Zealand.

17.

The parents shall immediately inform the other of any serious illness or injury sustained by the child whilst in their care and further provide any particulars of any treatment received by the child together with the name and address of the treatment provider and/or location at which the child is a patient.

18.

The parents shall each make available to the other any medication prescribed for the child to enable the other parent to administer such medication to the child and the other parent shall thereafter administer the medication as prescribed or required in the medication shall pass between the parents so as to ensure that it is in the possession of the parent with whom the child is living or spending time.

19.

Each parent shall notify the other with no less than seven days prior written notice and particulars of any change of residential address, telephone number, email address or other contact details.

20.

All extant applications be otherwise dismissed and the matter be removed from the list of pending cases.

21.

Pursuant to s.65DA(2) and s.62B, 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.

IT IS DIRECTED THAT

All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

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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