FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gronchi & Toyoda [2024] FedCFamC1F 774
File number BRC 2443 of 2021 Judgment of WILSON J Date of judgment 21 November 2024 Catchwords FAMILY LAW – PARENTING – relocation application by the respondent to the Country B – allegations of family violence by the father – allegation made out on the balance of probabilities – relocation in the child’s best interests – application allowed – father’s applications mostly refused. Legislation Family Law Act Part VII, ss 60CA, 60CC(2)(a)-(e) Cases cited Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Chu Kheng Lim v Minister for Immigration (1992) 172 CLR 1
Commonwealth v Baume (1905) 2 CLR 405
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155
Holloway v McFeeters (1956) 94 CLR 470
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369
Northern Territory v Collins (2008) 235 CLR 619
Project Blue Sky Inc v Australian Broadcasting Commission (1998) 194 CLR 355
Richter v Richter (2019) 63 FamLR 102
Taylor v Public Service Board (1976) 137 CLR 208
U v U (2002) 211 CLR 238
Wagstaff v Wagstaff (2022) 65 FamLR 461
Division Division 1 First Instance Number of paragraphs 164 Date of last submission 30 October 2024 Date of hearing 28, 29 and 30 October 2024 Place Melbourne Counsel for the applicant Mr B. Hatchman Solicitor for the applicant Vantage Law Counsel for the respondent Mr S. Casey Solicitor for the respondent Elsum Family Law Counsel for the independent children’s lawyer Mr P. Marchetti Solicitor for the independent children’s lawyer Victoria Legal Aid ORDERS
BRC 2443 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MR GRONCHI
Applicant
AND MS TOYODA
Respondent
ORDER MADE BY
WILSON J
DATE OF ORDER
21 NOVEMBER 2024
THE COURT ORDERS THAT –
1.All previous parenting orders be discharged.
Decision making
2.The mother have sole responsibility for all decisions with respect to major long-term issues for the child X born in 2017 (“the child”) and before any exercise of parental responsibility –
(a)the mother inform the father of her intention and provide him with sufficient particulars and documents to understand the nature of the decision;
(b)the mother give genuine consideration to any view expressed by the father and, if safe to do so, consult with him about the decision; and
(c)the mother may exercise sole responsibility 14 days after complying with subparagraph (a), or after such shorter period of time as circumstances require.
Live with
3.The child live with the mother.
4.The mother be permitted to relocate the child’s residence outside the Commonwealth of Australia to the…
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- Gronchi & Toyoda [2024] FedCFamC1F 774
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- [2024] FedCFamC1F 774
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CaseChat Overview and Summary
The legal issues at hand included the application of the 2024 amendments to the Family Law Act, which now mandate that the paramount consideration in making parenting orders is the best interests of the child. The court had to consider various factors, including the child's safety, views, developmental needs, and the capacity of the parents to meet these needs. Additionally, the court had to weigh the allegations of family violence made by the mother against the father's denial. The court needed to decide if the relocation would promote the child's safety and overall well-being, and whether joint decision-making would be feasible given the circumstances.
The court found that the allegations of family violence by the father were substantiated on the balance of probabilities. Despite this, the court determined that relocating the child to Country B was in the child's best interests, considering factors such as the mother's capacity to provide a stable environment and the potential benefits of the relocation. The court granted the mother's application to relocate, with specific conditions for the child's time and communication with the father. The father's application for joint decision-making was denied, and the court awarded sole decision-making responsibility to the mother, with provisions for the father to be consulted on major decisions. The court also set out detailed arrangements for the child's travel, communication, and passport management.
The final orders included granting the mother permission to relocate the child to Country B until 2031, with specific arrangements for the child's time with the father. The mother was awarded sole responsibility for major long-term decisions regarding the child, with conditions for consulting the father. The court also imposed restrictions on the parties to prevent recording of video calls and to maintain respectful communication. The orders detailed the responsibilities for travel, communication, and passport management, ensuring the child's safety and well-being during and after the relocation.
Orders
Orders of the court
BRC 2443 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN
MR GRONCHI
Applicant
AND
MS TOYODA
Respondent
ORDER MADE BY
WILSON J
DATE OF ORDER
21 NOVEMBER 2024
THE COURT ORDERS THAT –
1. All previous parenting orders be discharged.
Decision making
2. The mother have sole responsibility for all decisions with respect to major long-term issues for the child X born in 2017 (“the child”) and before any exercise of parental responsibility –
(a) the mother inform the father of her intention and provide him with sufficient particulars and documents to understand the nature of the decision;
(b) the mother give genuine consideration to any view expressed by the father and, if safe to do so, consult with him about the decision; and
(c) the mother may exercise sole responsibility 14 days after complying with subparagraph (a), or after such shorter period of time as circumstances require.
Live with
3. The child live with the mother.
4. The mother be permitted to relocate the child’s residence outside the Commonwealth of Australia to the Country B until 2031.
5. While the child lives in Country B, the child spend time and communicate with the father as follows –
(a) by Skype or other platform as agreed between the parties in writing on the following days –
(i) Friday between 12.00pm to 1.00pm (Country B time), equivalent to 7.00pm to 8.00pm Brisbane time with the call to be placed by the mother;
(ii) Tuesday between 2.30pm to 3.00pm (Country B time), equivalent to 9.30pm to 10.00pm Brisbane time with the call to be placed by the mother;
(iii) on the child’s birthday, between 2.30pm to 3.00pm (Country B time), equivalent to 9.30pm to 10.00pm Brisbane time with the call to be placed by the father;
(iv) on Father’s Day, between 12.00pm to 1.00pm (Country B time), equivalent to 9.30pm to 10.00pm Brisbane time with the call to be placed by the father;
(v) on Christmas Day, between 10.00am to 11.00am (Country B time), equivalent to 4.00pm to 5.00pm Brisbane time with the call to be placed by the father;
(vi) at all other times reasonably requested by the child; and
(vii) such further and other times as agreed between the parties.
(b) In even years –
(i) for three weeks during the child’s December/January school holidays, to include Christmas Day as follows –
A. such time can take place in either City C or Brisbane at the father’s election no less than 90 days prior to the commencement of the school holiday period;
B. in the event the father does not elect the location for time, time will take place in Brisbane;
C. upon receiving the father’s election as to where time will take place or in default of no election, the mother will provide no less than 60 days’ notice of the dates of travel;
(ii) for three weeks during the child’s June/July school holidays in Brisbane, with the mother to provide no less than 60 days’ notice of the dates of travel.
(c) In odd years –
(i) for two weeks during the child’s March/April school holidays as follows–
A. such time can take place in either City C or Brisbane at the father’s election no less than 90 days prior to the commencement of the school holiday period;
B. in the event the father does not elect the location for time, time will take place in Brisbane;
C. upon receiving the father’s election as to where time will take place or in default of no election, the mother will provide no less than 60 days’ notice of the dates of travel;
(ii) for four weeks during the child’s June/July school holidays in Brisbane, with the mother to provide no less than 60 days’ notice of the dates of travel; and
(d) any such other and further times as agreed between the parties in writing.
6. For the purpose of changeover unless otherwise agreed in writing between the parties–
(a) the father will collect the child from Brisbane International Airport at the commencement of his time and deliver the child to Brisbane International Airport no less than three hours’ prior to her flight departure time, unless otherwise agreed between the parties in writing, with the mother to advise the father who will be collecting the child at Brisbane International Airport or if she will be travelling as an unaccompanied minor no less than 48 hours prior to changeover; or
(b) if time is taking place in City C, the father will collect the child from City C International Airport at the commencement of his time and deliver the child to City C International Airport no less than three hours’ prior to her flight departure times, unless otherwise agreed between the parties in writing, with the mother to advise the father who will be collecting the child at City C International Airport or if she will be travelling as an unaccompanied minor no less than 48 hours prior to changeover.
7. The mother is responsible for the cost of the child’s flights between Country B and Brisbane and any accompanying adult flights.
8. If time takes place in City C the mother is responsible for the cost of the father’s economy class return flights between Brisbane and City C and the father is responsible for all accommodation costs and travel costs in City C.
9. During the child’s time with the father, the child communicates with the mother by Skype or such other platform as agreed between the parties in writing –
(a) every 5th night between 4.00pm and 5.00pm Brisbane time, with the call to be placed by the father;
(b) on the child’s birthday, between 4.00pm and 5.00pm Brisbane time, with the call to be placed by the mother; and
(c) on Christmas Day between 4.00pm and 5.00pm Brisbane time, with the call to be placed by the mother.
Restraints
10. The parties are restrained from recording video calls between the child and the father unless otherwise agreed between the parties in writing.
11. Without admitting necessity for same, the parties, their servants and agents be and are hereby restrained by injunction from –
(a) abusing, insulting, belittling or otherwise denigrating the other party, their partner or family in the presence or hearing of the child or permitting anyone else to do so;
(b) discussing these proceedings with or in the presence or hearing of the child or permitting anyone else to do so; and
(c) allowing the child to view any and all documents filed in or associated with these proceedings.
The child’s passport
12. Each party do all such things and sign all necessary documents to maintain a valid Australian passport for the child at their joint expense.
13. The child’s passport shall be held by the mother and a copy provided to the father.
14. Not less than six months prior to the child’s passport reaching the expiry date, each of the parties do all acts and things and sign all documents necessary to ensure that the passports are renewed and that the child have a valid passport at all times, with the costs of same to be shared equally between the parties.
15. In the event that either of the parties fails to comply with paragraph 14 pursuant to section 11(1)(b) of the Australia Passports Act 2005, the complying party is hereby authorised and permitted to apply for, renew and receive Australian passports for the child without the consent of the other party.
16. The child’s passport is to be released to the father no less than 48 hours prior to the father travelling overseas with the child, save for where not practicable, and the father shall return the child’s passport to the mother upon the child retuning from said travel.
Travel
17. Each party be permitted to travel with the child interstate when she is in their care pursuant to these orders subject to the travelling parent providing the non-travelling parent with 14 days prior notice of their intention to travel, save for in the case of emergency, and the location at which the child shall be residing.
18. Each party be permitted to travel with the child outside the Commonwealth of Australia when she is in their care pursuant to these orders subject to the following –
(a) the travelling parents provides the non-travelling parent with 45 days written notice of their intention to travel;
(b) no less than one month prior to the travel, the travelling parent provides the non-travelling parent with the following –
(i) a copy of the itinerary;
(ii) a copy of the airline/cruise tickets;
(iii) evidence of travel medical insurance;
(iv) the address at which the child shall be residing and a contact telephone number on which the travelling parent can be contacted; and
(v) evidence of visas for both the travelling parent and the child, where required, to enter the destination country.
(c) The parties are restrained from taking the child to any country that is listed as level 4 (“do not travel”) on the Australian Governments Smart Traveller’s website (“Smart Traveller”);
(d) the travelling parent will facilitate the other parent having reasonable electronic communication with the child whilst they are away; and
(e) the travelling parent ensures the child has received all required and recommended vaccinations for travel (if any) and provides proof of same.
Notifications
19. The parties shall communicate via the AppClose parenting App, or such other app as agreed in writing between the parties, save in the case of an emergency.
20. The parties shall inform the other as soon as reasonably practicable of any serious illness or injury sustained by the child while in their care and further provide particulars of any treatment required or received by the child together with the name and address of the treatment provider and/or location at which the child is hospitalised.
21. Both parties do all acts and things to ensure that both parents contact details are listed with any medical practitioner the child attends upon.
22. Upon provision of these orders to all treating medical practitioners and allied health providers of the child, the practitioners or providers are hereby authorised and empowered by this order to provide all medical history, information, reports, diagnoses and any other relevant information about the child’s welfare, development and progress at the request and at the cost of the parent requesting same.
23. Upon provision of these orders to the principal or co-ordinator of any education facilities or third party providing extracurricular activities in which the child is enrolled and any relevant individual or body are hereby authorised and empowered by this order to provide the parties with any information about the child’s progress and related activities and supply the parties with copies of photographs, certificates, awards, reports and any other documents relating to the child at the request and cost of the parent requesting same.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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