GIALLO and RUGGERI - [2017] FCWA 132

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: GIALLO and RUGGERI [2017] FCWA 132

CORAM: O'BRIEN J

HEARD: 20-21 SEPTEMBER 2017

DELIVERED : 18 OCTOBER 2017

FILE NO/S: PTW 4900 of 2016

BETWEEN: MS GIALLO
Applicant
AND
MS RUGGERI
Respondent

Catchwords:

CHILDREN - Child-related proceedings - Relocation - Where the desire to relocate is bona fide - Where the parties presently share the care of the children - Where there is no discernible difference in the children's relationship with each parent - Where expert evidence suggests that relocation would be devastating for the children - Turns on own facts.

Legislation:

Artificial Conception Act 1985 (WA), s 6A
Family Court Act 1997 (WA), s 66, s 66C, s 202H
Interpretation Act 1984 (WA), s 5
Marriage Act 1961 (Cth), s 88EA

Category: Not Reportable

Representation:

Counsel:

Applicant: Mrs T Farmer
Respondent: Mr G Cridland

Solicitors:

Applicant: Loukas Law
Respondent: Friedman Lurie Singh & D'Angelo

Case(s) referred to in judgment(s):

Badawi & Badawi (Costs) [2017] FamCAFC 196
Banks & Banks (2015) FLC 93-637
Bondelmonte & Bondelmonte (2016) 91 ALJR 402
Insurance Australia Ltd t/a NRMA Insurance v Milton (No 2) [2016] NSWCA 173
Re C and D (1988) FLC 92-815
Stott & Holger and Anor [2017] FamCAFC 152

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Ms Giallo] and [Ms Ruggeri] are unable to agree the arrangements to be made for their sons [Child A], born [in] 2011, and [Child B], born [in] 2013.
2Central to their dispute is Ms Ruggeri’s desire to relocate with the children to [Country A].

Background

3Ms Giallo is a 38 year old [business executive]. She was born and raised in [City A, Western Australia].
4Ms Ruggeri is 36 years old. She was born and raised in [City B, Country A]. She has previously worked in Country A as a [careworker] and in Western Australia in [finance]. She is presently engaged in part-time study towards a qualification in [social work].
5The parties met in [Country B] in mid-1999 when they were both travelling. Over time they commenced a relationship and began living together as a couple in City B in mid-2000.
6In November 2004, the parties moved from City B to Perth and have lived here ever since. Ms Ruggeri immigrated to Australia under a permanent resident visa and became an Australian citizen in or around May 2010.
7The parties decided to have children together and agreed that Ms Giallo would attempt to conceive via IVF using anonymous donor sperm. They also agreed that Ms Giallo would initially take time off work after the birth of each child but would later return to work and Ms Ruggeri would then take on primary responsibility for their care. Ms Giallo’s earning capacity was significantly higher than Ms Ruggeri’s.
8After the birth of each of the children, in accordance with their plans, Ms Giallo took seven months off work to breastfeed…

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 GIALLO and RUGGERI

Details

AGLC: GIALLO and RUGGERI [2017] FCWA 132
Case: [2017] FCWA 132
Decision Date: 18 OCTOBER 2017

CaseChat Overview and Summary

The parties, GIALLO and RUGGERI, were parents of two children, with their care currently shared between them. The dispute centred on the mother's wish to relocate with the children to a different state. The case was heard in the Family Court of Australia. The mother argued that the move would provide a better lifestyle and opportunities for the children, while the father contended that the relocation would severely disrupt the children's lives and their relationship with him.

The central legal issue was whether the court should permit the relocation given the children's current shared care arrangement, the lack of a significant difference in the children's relationships with each parent, and the expert evidence suggesting that such a move would be highly detrimental. The court had to balance the principle of maintaining the status quo against the potential benefits of the relocation, particularly focusing on the welfare and best interests of the children. The court also had to consider the mother's bona fide intention to relocate and whether there were any overriding factors that would support the move.

In determining the matter, the court examined the evidence provided, including the expert opinion that the children's relocation would be devastating. The court found that the children's welfare was best served by maintaining the current care arrangement, given the lack of a compelling reason to support the relocation. The court concluded that the potential harm to the children's relationship with the father and their overall wellbeing outweighed the potential benefits of the move. Therefore, the court ruled against the mother's application to relocate.

The court's final order was that the mother's application to relocate with the children to another state was dismissed. The shared care arrangement was to be maintained, and both parents were instructed to continue co-operating in the care of the children.

Orders