FEDERAL CIRCUIT COURT OF AUSTRALIA
| LABATO & NAPOLI | [2021] FCCA 251 |
| Catchwords: FAMILY LAW – Parenting – relocation application – where Mother seeks to relocate with 4 year old child to Melbourne to live with her new partner – Father opposes relocation – where Father showed lack of insight and awareness – where the Mother has been the primary carer – where the child has a strong relationship with both parents – the Mother be permitted to relocate with the children in 2022 in order that her relationship with the Father can consolidate further. |
| Legislation: Family Law Act 1975 (Cth), Pt.VII, ss.60CA, 60CC(3)(c), (ca) & (i) |
| Cases cited: Asher v Wilkinson (2020) 61 Fam LR 523 B & B [2006] FamCA 1207 Blanding v Blanding (2017) 55 Fam LR 218 KB & TC (2005) 33 Fam LR 471; (2005) FLC ¶93-224 Cales & Cales (2010) 251 FLR 454; (2010) 44 Fam LR 376 Collu & Rinaldo [2010] FamCAFC 53 F v F (2008) 38 Fam LR 52 Fox v Percy (2003) 214 CLR 118 Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102 Goode v Goode (2007) 36 Fam LR 422 Hepburn & Noble (2010) FLC 93-438 M v S (2008) 37 Fam LR 32 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC 93-375 MRR v GR (2010) 240 CLR 461 Paskandy & Paskandy (1999) 154 FLR 437; (1999) FLC 92-878 Payne v Payne [2001] Fam 473; [2005] 2 WLR 1826 P & P (2005) FLC 93-239 Sealey & Archer [2008] FamCAFC 142 Sheldon & Weir (No.3) [2010] FamCA 1138 Sigley v Evor (2011) 44 Fam LR 439 Starr & Duggan [2009] FamCAFC 115 Taylor & Barker (2008) 37 Fam LR 461 U v U (2002) 211 CLR 238 Vontek v Vontek [2017] FamCAFC 28 Wiley & Wiley [2008] FamCAFC 153 |
| Applicant: | MR LABATO |
| Respondent: | MS NAPOLI |
| File Number: | CAC 1957 of 2019 |
| Judgment of: | Judge W J Neville |
| Hearing dates: | 10 and 11 August 2020 |
| Date of Last Submission: | 22 September 2020 |
| Delivered at: | Canberra |
| Delivered on: | 16 February 2021 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Lawson |
| Solicitors for the Applicant: | Farrar Gesini Dunn |
| Counsel for the Respondent: | Mr J Haddock |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson |
ORDERS
All previous Parenting Orders be discharged.
The parties have Equal Share Parental Responsibility for the child, X (born: in 2016), (“the child”) however in the event the parties are unable to reach agreement, the Respondent Mother will have the final say.
The child live with the Mother.
The Respondent Mother be permitted to relocate to Melbourne but not before 1 January 2022.
From 16 February 2021 until the Mother’s relocation in 2022, the Father spend time with the child as agreed in writing between the parties with notification to be provided to the Court in a Consent Minute to be filed within 14 days…
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- AGLC
- LABATO & NAPOLI [2021] FCCA 251
- Case
- [2021] FCCA 251
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the Mother should be permitted to relocate with X to Melbourne. The Father's primary submissions emphasised the importance of both parents having a meaningful involvement in X's life. The Father had moved to Canberra from Brisbane to spend more time with X, having previously served in the Australian Defence Force. The Mother sought orders for X to live with her in Melbourne.
The court found that the Mother had been the primary carer and that X had a strong relationship with her Mother, but a somewhat less secure bond with her Father. The court noted that X had spent limited time away from her Mother and relatively limited time with her Father, particularly overnight. To address this, the court determined that a period of time was necessary for X to build a stronger relationship with her Father and develop greater resilience from being away from her Mother. The court ultimately permitted the Mother to relocate with X to Melbourne, but not before 1 January 2022, to allow for the consolidation of the Father's and X's relationship. The court also ordered that the parties have Equal Share Parental Responsibility, with the Mother having the final say in the event of disagreement, and that X live with the Mother. The orders detailed a phased approach to the Father's time with X, commencing from February 2021 and progressively increasing upon the Mother's relocation to Melbourne. Further orders addressed special occasions, communication protocols, medical information sharing, travel, and the child's name change.
Orders
Orders of the court
1.
All previous Parenting Orders be discharged.
2.
The parties have Equal Share Parental Responsibility for the child, X (born: in 2016), (“the child”) however in the event the parties are unable to reach agreement, the Respondent Mother will have the final say.
3.
The child live with the Mother.
4.
The Respondent Mother be permitted to relocate to Melbourne but not before 1 January 2022.
5.
From 16 February 2021 until the Mother’s relocation in 2022, the Father spend time with the child as agreed in writing between the parties with notification to be provided to the Court in a Consent Minute to be filed within 14 days of the date of these Orders, being by 2 March 2021.
6.
Upon relocation of the Respondent Mother to Melbourne with the child, the Father spend time with the child as follows:
7.
From 1 January 2022 until 10 June 2022 the child spend time with the Father:
(a) Every four weeks, from 10.00am on Saturday until 5.00pm on Sunday (1 overnight), alternating between Canberra and Melbourne; and
(b) At such other times as agreed between the parties, with the Father providing the Mother with no less than 4 weeks’ notice of his intention to spend time with the child in either Melbourne or Canberra.
8.
From 10 June 2022 until 10 June 2023 the child spend time with the Father:
(a) Every three weeks, from Friday to Sunday (2 overnights) at times to be agreed between the parties to accommodate travel times but failing agreement, from 5:00pm on Friday until 5:00pm on Sunday, alternating between Canberra and Melbourne; and
(b) During the Victorian school holiday periods, in addition to the time provided for in Order 8a hereof, the child spend time with the Father as follows (not to be taken immediately after the child’s weekend with the Father pursuant to Order 8a hereof):
(i) During April, June and September school holiday periods, an additional 3 consecutive nights each holiday period; and
(ii) During December/January school holiday periods, an additional two blocks of 3 consecutive nights (not to be taken immediately following the child’s time with the Father during the Christmas Period pursuant to Order 28-30 hereof); and
9.
For the purposes of Order 8a the parties shall agree upon the dates and times for the additional time, but failing agreement:
(a) The additional time in April, June and September holiday periods shall occur in the latter half of the first week of each holiday period; and
(b) The additional time December/January holidays shall occur in the second week of December 2021 and January 2022;
(c) The location for the additional time will alternate between Canberra and Melbourne, and if the Father wishes to spend time with the child in a different location that does not follow the alternating pattern, he will pay for all of the travel costs;
(d) At such other times as agreed between the parties, with the Father providing the Mother with no less than 4 weeks’ notice of his intention to spend time with the child in either Melbourne or Canberra.
10.
From 10 June 2023 until the end of primary school the Father spend time with the child during school term:
(a) Every three weeks, from Friday evening to Sunday evening (2 overnights) alternating between Canberra and Melbourne, at times to be agreed between the parties upon the travelling parent providing the other parent with flight details;
11.
During Victorian school holidays Order 10a be suspended from the last day of the school term until the last Sunday of the school holiday period.
12.
From 10 June 2023 until the end of primary school the Father spend time with the child during school holidays:
(a) For half of each Term 1 and Term 3 school holidays as agreed between the parties, but failing agreement:
(i) In odd-numbered years, for the first half of the school holidays; and
(ii) In even-numbered years, for the second half of school holidays;
(iii) For two weeks (14 days) of the Term 2 school holidays in odd-numbered years;
(iv) For the Term 4 school holidays, for 2 blocks of up to 1 week at a time with the Father (not to be taken consecutively), on such dates and times to be agreed between the parties in writing, but failing agreement as follows:
(v) In odd-numbered years, from the day after the last day of Term until the 23 December and from 1 January to 7 January; and
(vi) In even-numbered years, from 31 December to 6 January and the last week of January school holidays up to the Saturday before school resumes; and
13.
For the child’s time with the Father pursuant to Order 12 above:
(a) The Mother will make the child available in Canberra for the time spent in Canberra and will bear her associated costs;
(b) The Father will make himself available to the child in Melbourne for the time spent in Melbourne and will bear his associated costs;
(c) Until the child is legally old enough to travel on her own (via flights), the Mother will book the child’s flights and the Father will contribute one-half of the child’s travel costs within 24 hours of being provided with the receipt(s); and
(d) Once the child is legally old enough to travel (via flights) on her own as an unaccompanied minor, the parties will book and pay for the child’s flights in the alternate.
14.
For the purposes of the child’s time with the Father for the school holiday periods:
(a) If the Father seeks to spend time with the child in Canberra, the Father shall pay the full cost of the child’s flights between Melbourne and Canberra and the Mother will make the child available in Canberra; and
(b) If the Father seeks to spend time with the child in Melbourne, the Father shall pay the full cost of his flights between Melbourne and Canberra and the Mother will make the child available in Melbourne.
15.
For the purposes of handover, the Father will collect the child at the commencement of the time and return the child at the completion of the time to a location agreed in writing between the parties, but failing agreement, at the maternal grandparents’ house in Canberra or the front of the child’s Melbourne residence (as may be applicable); and
(a) If the agreed location for the purposes of handover is the Mother’s home, the Father will not enter the Mother’s property without her expressed consent; and
(b) Once the child is legally old enough to travel (via flights) as an unaccompanied minor, the handover by the Mother will occur upon the delivery of the child to the departing flight and pick up will occur by the Father collecting the child at the airport upon arrival, and the reverse will occur for return handover.
16.
Upon the child commencing High School, order 6c shall continue save that Order 12 a iv shall be replaced with the following:
(a) For the Term 4 school holidays, the child spend time with the Father for half of the school holidays as agreed between the parties in writing, but failing agreement:
(i) In odd-numbered years, for the first half of the school holidays; and
(ii) In even-numbered years, for the second half of the school holidays.
(b) Each party is at liberty to travel with the child during the Term 4 school holidays when the child is in their care pursuant to these Orders and the other party will not unreasonably withhold their consent.
17.
Unless otherwise agreed between the parties in writing, the child continue to attend upon Dr B (or other agreed child psychologist), at the parties’ joint equal expense, for the purposes of monitoring her behaviour and receiving feedback until Dr B (or the other agreed child psychologist) advises that the child no longer needs to see them or the parties mutually agree to cease the sessions;
18.
Unless in circumstances of emergency, in the event a party is unable to adhere to the agreed dates, times or locations for the child’s time with the Father (“the defaulting party”), the defaulting party must provide a minimum of 7 days’ notice to the other party and the parties shall use their best endeavours to reschedule the child’s time with the Father and the defaulting party will pay any reasonable costs of rescheduling the child’s and the other party’s travel costs (if applicable).
19.
After December 2027 (the end of primary school), the parties may review the child’s arrangements and make variations by consent in writing or failing agreement, attend upon an agreed Family Dispute Resolution practitioner if required to discuss whether the child’s arrangements need to be varied taking into account the child’s age and developmental stage.
20.
Notwithstanding the above Orders, unless the child is already in the care of the relevant parent and unless otherwise agreed between the parties in writing, the child spend time with the Father and the Mother during special occasions each year, as follows:
21.
On Mother’s Day, the child spend time with the Mother from 5.00pm on Saturday preceding Mother’s Day until 5.00pm on Mother’s Day.
22.
On Father’s Day, if the child and the Father are in the same city, the child spend time with the Father from 5.00pm on Saturday preceding Father’s Day until 5.00pm on Father’s Day;
23.
For the child’s birthday, unless otherwise agreed in writing between the parties, if the child and the Father are in the same city, the child spend time with the Father from 3.30pm to 5.30pm if a school day, and 9.00am to 12.00pm if a non-school day.
24.
On the Mother’s birthday, the child spend time with the Mother from 12.00pm to 4.00pm.
25.
On the Father’s birthday, if the child and the Father are in the same city, the child spend time with the Father from 12.00pm to 4.00pm if a non-school day and 3.30pm to 7.30pm on a school day.
26.
For Easter in 2022, the child spend time with the Father from 10.00am on Good Friday until 2.00pm on Easter Sunday and otherwise with the Mother.
27.
From 2023 onwards, the “Easter Period” is defined as beginning at 5.00pm on the Thursday evening before Good Friday until 12.00pm (midday) on the Tuesday after Easter Monday, and;
(a) In even-numbered years, the child will spend time with the Mother during the Easter Period;
(b) In odd-numbered years, the child will spend time with the Father during the Easter Period;
(c) In years where the Easter Period falls during the school holidays the school holiday clause prevails and Easter will not be in addition to the school holiday time.
(d) For Christmas:
28.
The “Christmas Period” is defined as beginning on 6.00pm on 23 December until 4.00pm on 26 December (Boxing Day).
29.
In even-numbered years, the child will spend time the her Mother during the Christmas Period; and
30.
In odd-numbered years, the child will spend time with the Father during the Christmas Period.
31.
For the purposes of facilitating the child’s time with the Father pursuant to Orders 26-27 (Easter) and 28-30 (Christmas), if the child and the Father are not already in the same city, the Father pay for the child’s flight costs in full.
32.
Each party be restrained from discussing any issues, arrangements or matters in general or relating to these proceedings at handover, except the welfare of the child related to that specific visit
33.
Each party be restrained from making any critical, derogatory, defamatory, insulting, inappropriate, demeaning, manipulative, undermining, remarks about the other party or members of their family in the presence or within the hearing of the child (or enabling someone else to).
34.
Unless otherwise agreed in writing, all communication between the parties be only in relation to matters pertaining to the child, or matters relating to these proceedings or requirements thereof and such communication shall be conducted in writing via the “Talking Parents” application, except in emergency situations when communication is to be via the telephone number of the Mother or the Father.
35.
Each party will inform the other party as soon as practicable, of any emergency giving rise to a serious illness/injury sustained by the child whilst in their respective care requiring medical attention via telephone in the first instance (numbers provided in Order 16 above). In the event either party is unreachable on those respective telephone numbers, the Father shall telephone Mr C or Ms D and the Mother shall telephone an individual nominated by the Father within 24 hours of these Orders being made.
36.
Each party will provide the other party with the following details as soon as possible and within two 2 hours of that party becoming aware of the serious illness or injury sustained by the child:
(a) The nature of the illness of the circumstances giving rise to the illness or injury;
(b) The name and contact details of the treating doctor or other health professional if known at the time;
(c) The name of the hospital where the child has been admitted (if relevant); and
(d) Any known prescribed treatment or medication (including surgery or blood transfusion or any other relevant information); and immediately authorise the other parent to communicate with the treating medical practitioner, other health professional and/or hospital where the child has been admitted.
37.
Each party will keep the other informed of the name and contact details of all medical practitioners and health professionals treating the child and do all things necessary to authorise such medical practitioners and health professionals to communicate directly with the other party.
38.
Each party shall authorise any doctor or hospital who treats the child to release to the other parent any information that parent requests in relation to the child’s condition and treatment.
39.
Both parties shall follow any recommendations made by the child’s treating medical practitioners and provide the child with any prescribed medication, as directed by the child’s treating medical practitioners.
40.
In the event either party wishes to travel outside of the Commonwealth of Australia with the child, then such parent (“travelling parent”) must provide to the other parent (“remaining parent”) not less than two (2) weeks from the intended date of departure:
(a) Written notice which states that they intend to travel outside of the Commonwealth of Australia with the child; and
(b) Full particulars of the proposed travel including:
(i) The dates of the proposed travel;
(ii) Intended itinerary and flight details; and
(iii) Telephone contact details for the child while overseas.
(c) The remaining parent must inform the travelling parent in writing within 3 days of receipt of the written notice whether or not he or she consents to the travelling parent’s proposal to travel out of the Commonwealth of Australia with the child.
41.
In relation to Order 23 hereof:
(a) Neither party will unreasonably withhold their consent to the proposed travel; and
(b) Both parties will use their best endeavours to agree upon and facilitate make-up time to reflect the time that the other parent did not spend with the child during the international travel (if applicable).
42.
Each party shall sign a Passport Application or a Renewal Application within 7 days of a written request from the other parent to do so.
43.
The Mother hold the child’s passport until required by the Father.
44.
The Father return the child’s passport to the Mother within 3 days of the child returning to Australia.
45.
Each party is entitled to a copy of the child’s reports, bulletins or other information from the child’s day care provider and other organisations where the child attends activities. Each party will independently arrange with the service provider to have the copies directly communicated to them.
46.
Each party authorise the child’s day care/pre-school/school, to provide to either parent, at their own expense, if any, with copies of all school reports, any other reports on school progress and behavioural issues and all school circulars and letters in relation to the child.
47.
Each party be responsible for organising contact between the child and their side of the child’s family.
48.
The name of the child X (born: in 2016) be changed to X Labato-Napoli.
49.
The Mother is given leave to apply to the Registrar of Births, Deaths and Marriages in and for the Australian Capital Territory to register the name of the child formerly known as X (born: in 2016) to X Labato-Napoli.
50.
The Registrar of Births, Deaths and Marriages in and for the Australian Capital Territory is ordered to register the name of the child formerly known as X as X Labato-Napoli.
51.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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