FERREIRO & ZANGARI - [2018] FCCA 3214

FEDERAL CIRCUIT COURT OF AUSTRALIA

FERREIRO & ZANGARI

[2018] FCCA 3214

Catchwords:
FAMILY LAW – Interim parenting – relocation – mother unilaterally relocated with children from Sydney to Town A – practicality of mother and children moving back to Sydney – orders for children to return to Sydney.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60B, 60CC, 61DA, 65DAA, 61C

Cases cited:

Goode & Goode (2007) 36 Fam LR 422
Keats & Keats [2016] FamCAFC 156
M & M (1988) 166 CLR 69
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100
Slater & Light [2011] FamCAFC 1

Applicant:

MR FERREIRO

Respondent:

MS ZANGARI

File Number:

PAC 2379 of 2018

Judgment of:

Judge Obradovic

Hearing date:

16 October 2018

Date of Last Submission:

16 October 2018

Delivered at:

Parramatta

Delivered on:

4 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr Greenaway

Solicitors for the Applicant:

John Spence & Associates

Appearing for the Respondent:

Ms Colquhoun

Solicitors for the Respondent:

Legal Aid New South Wales

Appearing for the Independent Children's Lawyer:

Ms Abercrombie

Solicitors for the Independent Children's Lawyer:

Lamrocks Solicitors

PENDING FURTHER ORDERS

The mother shall within 42 days of the making of these Orders cause the return of the children [X] born 2011 and [Y] born 2012 to the Sydney Metropolitan area.
Following compliance by the mother with the above order, the mother is restrained from changing the place of residence of the children to any place outside a 15 kilometre radius of the suburb of Suburb K.
For the purpose of facilitating the mother’s return to the Sydney Metropolitan area with the children, the father shall pay a rental bond and $200 per week towards rental payments to the mother.
The children shall spend time with the father as follows:
(a)From 3pm to 6pm on 25 December 2018;
(b)Pending the children’s return to the Sydney Metropolitan Area, in accordance with orders made on 6 June 2018;
(c)Upon the children’s return to the Sydney Metropolitan Area:
(i)For a period of 6 weeks, each week from 10am to 5pm on Saturday, with such time to occur in the presence of a third party nominated by the father;
(ii)For a further period of 4 weeks, each week from 10am to 5pm on Saturday; and
(iii)Thereafter, each alternate weekend from 10am to 5pm on Saturday and from 10am to 5pm on Sunday.
The parents are to do all acts and sign all documents necessary to cause the children to be re-enrolled in School 1 Primary School, Suburb K, New South Wales upon their return to the Sydney Metropolitan area.
The father is to pay all school fees for the children upon their re-enrolment at School 1 Primary School, Suburb K together with the costs of their school uniforms.
Pursuant to section 68B of the Family Law Act1975, the father is restrained by injunction from smoking marijuana for at least 24 hours prior to the children coming into his care and for…

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 FERREIRO & ZANGARI

Details

AGLC: FERREIRO & ZANGARI [2018] FCCA 3214
Case: [2018] FCCA 3214
Decision Date: 4 December 2018

CaseChat Overview and Summary

In *Ferreiro & Zangari*, the mother unilaterally relocated with the children from Sydney to Town A, prompting an application by the father concerning interim parenting arrangements. The dispute before the court concerned the practicality of the mother and children returning to Sydney.

The central legal issue before the court was whether interim orders should be made for the children to return to Sydney, given the mother's relocation. This involved assessing the best interests of the children in the context of a unilateral relocation and the practicalities of reversing such a move.

Her Honour, Obradovic J, considered the principles governing interim parenting orders, particularly in relocation cases. The court determined that the children's best interests favoured their return to Sydney on an interim basis, finding it practical to facilitate this move. The reasoning likely involved an assessment of the disruption caused by the relocation and the need to maintain the children's existing relationships and stability pending a final determination.

The court made orders for the children to return to Sydney.

Orders