GARFIELD & CASSANO - [2018] FCCA 3265

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARFIELD & CASSANO

[2018] FCCA 3265

Catchwords:
FAMILY LAW – Parenting – parental responsibility – international relocation – consideration of child’s schooling – best interests of the child.

Legislation:

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

Cases cited:

Heaton v Heaton (2002) 48 Fam LR 349

Mazorski v Albright (2008) 37 FamLR 518

McCall & Clark (2009) FLC 93-405

Morgan & Miles (2007) FLC 93-343

U v U (2002) FLC 93-112

Applicant:

MR GARFIELD

Respondent:

MS CASSANO

File Number:

MLC 6876 of 2013

Judgment of:

Judge Mercuri

Hearing dates:

22 & 23 August 2018

Date of Last Submission:

23 August 2018

Delivered at:

Melbourne

Delivered on:

14 November 2018

REPRESENTATION

Counsel for the applicant:

Mr Thistleton

Solicitors for the applicant:

Bowlen Dunstan & Associates

Counsel for the respondent:

Mr Schmidt

Solicitors for the respondent:

Hargreaves Family Lawyers

ORDERS

All previous parenting orders be discharged.
The mother have sole parental responsibility for the child [X] born 2011 (“the child”) in relation to medical and education decisions.
The parties otherwise have equal shared parental responsibility for the child.
For the purposes of paragraph 2 herein, in relation to any proposed decision for the child, the mother shall:
(a)advise the father by email of any proposed decision;
(b)seek the father’s opinion;
(c)take the father’s opinion into account in making the decision; and
(d)advise the father of her decision by email, as soon as practicable.
The mother be permitted to relocate the child’s residence to (country omitted) on or after 22 November 2018.
Pending the mother and the child relocating the (country omitted):
(a)the child shall live with the mother; and
(b)the child shall spend time and communicate with the father each alternate week from the conclusion of school (or 3:00pm) on Friday until the commencement of school (or 9:00am) on Tuesday.
The child be permitted to leave the Commonwealth of Australia AND IT IS DIRECTED that the Australian Federal Police remove the name of the child from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
Upon the relocation to the (country omitted), the child spend time with the father as follows:
(a)in Australia:
(i)for a period of 6 weeks during the (country omitted) summer holiday period, during which time the child be returned to the mother’s care for four nights every two weeks; and
(ii)for a period of 2 weeks in 2019 and each alternate year thereafter, during the child’s December/January holidays;
(b)in (country omitted):
(i)for a period of two weeks:
A.in each year during the child’s spring break holiday (March/April); and
B.in 2020 and each alternate year thereafter, during the child’s December/January holidays to commence on 27 December; and
(ii)on any occasion that the father travels to (country omitted) subject to the father providing the mother with not less than 60 days prior written notice prior to his arrival in the (country omitted), during school terms from the conclusion of school (or 3:00pm) on…

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 GARFIELD & CASSANO

Details

AGLC: Garfield and Cassano [2018] FCCA 3265
Case: [2018] FCCA 3265
Decision Date: 14 November 2018

CaseChat Overview and Summary

In the matter of *Garfield & Cassano*, heard by Judge Mercuri, the dispute concerned parenting orders for a child born in 2011, specifically addressing international relocation and parental responsibility for medical and educational decisions. The mother sought to relocate the child to another country, which was a central point of contention between the parties.

The court was required to determine the best interests of the child in relation to the proposed international relocation, the allocation of parental responsibility for significant decisions, and the specific arrangements for the child's time with each parent both before and after any relocation. This included considerations regarding the child's schooling and the practicalities of maintaining a relationship with the non-resident parent.

Judge Mercuri discharged previous parenting orders and made new orders that granted the mother sole parental responsibility for medical and education decisions, while the parties otherwise retained equal shared parental responsibility. Crucially, the mother was permitted to relocate the child's residence to the specified country from 22 November 2018. The orders detailed extensive arrangements for the child's time with the father, both before and after the relocation, including provisions for travel, communication, and the sharing of associated costs. The court also issued injunctions restraining the parties from denigrating each other in the child's presence and from discussing proceedings with the child.

Orders

Orders of the court

All previous parenting orders be discharged.

The mother have sole parental responsibility for the child [X] born 2011 (“the child”) in relation to medical and education decisions.

The parties otherwise have equal shared parental responsibility for the child.

For the purposes of paragraph 2 herein, in relation to any proposed decision for the child, the mother shall:

(a) advise the father by email of any proposed decision;

(b) seek the father’s opinion;

(d) advise the father of her decision by email, as soon as practicable.

The mother be permitted to relocate the child’s residence to (country omitted) on or after 22 November 2018.

Pending the mother and the child relocating the (country omitted):

(a) the child shall live with the mother; and

(b) the child shall spend time and communicate with the father each alternate week from the conclusion of school (or 3:00pm) on Friday until the commencement of school (or 9:00am) on Tuesday.

The child be permitted to leave the Commonwealth of Australia AND IT IS DIRECTED that the Australian Federal Police remove the name of the child from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

Upon the relocation to the (country omitted), the child spend time with the father as follows:

(a) in Australia:

(i) for a period of 6 weeks during the (country omitted) summer holiday period, during which time the child be returned to the mother’s care for four nights every two weeks; and

(ii) for a period of 2 weeks in 2019 and each alternate year thereafter, during the child’s December/January holidays;

(b) in (country omitted):

(i) for a period of two weeks:

A. in each year during the child’s spring break holiday (March/April); and

B. in 2020 and each alternate year thereafter, during the child’s December/January holidays to commence on 27 December; and

(ii) on any occasion that the father travels to (country omitted) subject to the father providing the mother with not less than 60 days prior written notice prior to his arrival in the (country omitted), during school terms from the conclusion of school (or 3:00pm) on Friday until the commencement of school (or 9:00am) on Tuesday in each alternate week; and

For the purposes of the child’s travel pursuant to paragraph 8(a) herein, the mother provide the father with the dates of travel no less than 60 days prior to travel.

10.

For the purposes of the child’s time with the father pursuant to paragraph 8(b) herein, the father provide the mother with the dates of travel 60 days prior to travel.

11.

Upon the child’s relocation, the mother do all things required to facilitate the child having Skype and/or FaceTime communication with the father (and if these forms of communication are not reasonably available, by telephone or other electronic communication) at such times as agreed between the parties and, in default of agreement, each Sunday and Wednesday between 5:00pm and 6:00pm (country omitted) time and, for that purpose:

(a) the mother shall provide the child with his own smartphone enabled with Skype/Facetime technology; and

(b) the mother will create a location in her residence where the father and the child can communicate uninterrupted.

12.

In relation to the child’s travel:

(a) the mother shall be responsible for selecting and booking the child’s flights between (country omitted) Airport and Melbourne International Airport pursuant to paragraph 8(a) herein;

(b) the parties shall meet all expenses relating to the child’s travel between the (country omitted) and Australia on an equal basis, with the father to reimburse the mother one half of the cost of the flights to a bank account nominated by her in writing within 7 days of providing evidence of the purchase of the tickets to the father pursuant to paragraph 8(a);

(d) the child shall be permitted to travel as an unaccompanied minor upon turning 10 years of age (or at such earlier time as may be agreed between the parties in writing); and

(e) the parties shall each otherwise bear their own travel costs.

13.

Unless otherwise expressly agreed between the parties in writing, changeover shall take place as follows:

(a) at Melbourne International Airport for the purposes of paragraph 8(a);

(b) at (country omitted) International Airport for the purposes of paragraph 8(b)(i); and

(c) at the child’s school in the event the father is spending time with the child in (country omitted) pursuant to paragraph 8(b)(ii).

14.

Upon the mother and the child relocating to the (country omitted), the mother shall:

(a) ensure the father is advised at all times of her residential address, telephone number and Skype/Facetime address by which the father can communicate with the child;

(b) authorise any medical practitioner upon whom the child may attend from time to time to communicate with the father in respect of any medical condition the child may have and/or any other requirements for the child;

(c) arrange for the child to be immunised according to the schedule of immunisation directed by the relevant health authority in the (country omitted);

(d) authorise all schools at which the child may attend from time to time to provide the father with copies of all school reports, school notices and school photographs in relation to the child and to authorise any school to communicate with the father, either by telephone or in writing or other electronic means in relation to the child’s progress at school; and

(e) advise the father immediately in the event the child suffers a serious illness or injury.

15.

The child’s Australian passport be:

(a) released by the Federal Circuit Court of Australia to the mother who shall provide a certified copy of the passport to the father;

(b) released by the mother to the father as soon as reasonably practicable to enable the father to travel internationally with the child subject to paragraph 17 of these orders being complied with; and

16.

The father shall do all such acts and things and sign all such documents as may be required to enable the child to obtain a (country omitted) passport, with the mother to meet all associated expenses.

17.

In the event that the mother intends to travel internationally with the child, she notify the father in writing not less than 60 days prior to the date of departure and provide an itinerary of the travel, including:

(a) the countries to which the child will travel and with whom the child will travel;

(b) the airlines/ships (including flight or ship details) upon which the child will travel;

(d) the addresses at which the child will reside and a telephone/Skype/Facetime number on which the father can communicate with the child; and

(e) not less than 7 days prior to the date of departure, provide the father with a copy of the child’s return airfare.

18.

In the event that the father intends to travel internationally with the child, he notify the mother in writing not less than 60 days prior to the date of departure and provide an itinerary of the travel, including:

(a) the countries to which the child will travel and with whom the child will travel;

(b) the airlines/ships (including flight or ship details) upon which the child will travel;

(d) the addresses at which the child will reside and a telephone/Skype/Facetime number on which the mother can communicate with the child; and

(e) not less than 7 days prior to the date of departure, provide the mother with a copy of the child’s return airfare.

19.

The costs of the child’s travel to and from the (country omitted) pursuant to these orders will be shared equally between the parties. The parties otherwise each bear their own costs of travel associated with these orders.

20.

Both parties do all acts and things and sign all documents as may be necessary to register in the appropriate court of (country omitted), a sealed copy of these orders including making a written request to both the Registry Manager and the Registrar of this Court pursuant to section 70M(2) of the Family Law Act 1975 (Cth) and regulation 24(2) of the Family Law Regulations.

21.

The parties, their servants and agents are hereby restrained by injunction from:

(a) abusing, rebuking, belittling or otherwise denigrating each other or any member of the other’s household, in the presence or hearing of the child nor permitting any other person to do so; and

(b) discussing these proceedings or any parenting matters in the presence or hearing of the child nor permitting any other person to do so.

22.

All other extant applications be dismissed.

23.

Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A) Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(B) Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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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