Renaldo & Decora

Case [2021] FedCFamC1F 23

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Renaldo & Decora [2021] FedCFamC1F 23

File number(s): BRC 9004 of 2020
Judgment of: CAREW J
Date of judgment: 7 September 2021
Catchwords: FAMILY LAW – CHILDREN – International Relocation – Where the parents are unable to agree about whether the children live in City D, Country E or in Region G, Australia – Where the parents agree that the best interests of the children will be served by the parents having equal shared parental responsibility about major long term issues and for the children to continue to live in a week about arrangement – Where the children have lacked stability and experienced significant changes in their lives to date – Where the current arrangements enable the children to have a meaningful relationship with both parents and a continuation of that arrangement in Australia would best meet their needs.  
Legislation:

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Cases cited:

AMS v AIF (1999) 199 CLR 160

Banks & Banks (2015) FLC 93-637

Babcock & Waddell [2019] FamCAFC 129

Baghti & Baghtiand Ors [2015] FamCAFC 71

Briginshaw v Briginshaw (1938) 60 CLR 336

CDJ v VAJ (1998) 197 CLR 172

Johnson & Page (2007) FLC 93-344

M v M (1988) 166 CLR 69

N and S and the Separate Representative (1996) FLC 92-655

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 1 First Instance
Number of paragraphs: 61
Date of hearing: 12–13 August 2021
Place: Brisbane
Counsel for the Applicant: Mr Kennedy
Solicitor for the Applicant: Clarity Family Law Solutions
Counsel for the Respondent: Self-Represented
Counsel for the Independent Children's Lawyer: Mr Cameron
Solicitor for the Independent Children's Lawyer: Smithson Lawyers

ORDERS

BRC 9004 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS RENALDO

Applicant
AND:

MR DECORA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAREW J

DATE OF ORDER:

7 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.All previous parenting orders be discharged.

Parental Responsibility

2.Ms Renaldo (“the mother”) and Mr Decora (“the father”) have equal shared parental responsibility in relation to ‘major long term issues’ (as that term is defined by s 4(1) of the Family Law Act 1975 (Cth)) for the children X born … 2011 and Y born … 2012 (“the children”).

3.In the exercise of their parental responsibility in relation to major long term issues the parents shall:

(a)consult each other in relation to the decision to be made about the issue; and

(b)make a genuine effort to come to a joint decision about that issue.

Time with Parents

In the event the father is residing in Region G, Queensland, Australia

4.The children live with the mother when they are not living with the father.

5.The children live with the father at all such times as may be agreed and failing agreement as follows:

(a)during school term, each alternate week from after school on the Friday until before school the following Friday;

(b)half of all school holidays;

(c)the children’s birthdays as…

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AGLC
Renaldo & Decora [2021] FedCFamC1F 23
Case
[2021] FedCFamC1F 23
Decision Date

CaseChat Overview and Summary

The matter before the court involved a dispute between Ms Renaldo and Mr Decora regarding the relocation of their two children to City D, Country E. The parents, who had separated, disagreed on where the children should reside, with the father preferring City D and the mother preferring to remain in Australia. The children had been living in a week-about arrangement in Australia, alternating between their parents' households. The primary legal issue was whether the children should relocate to City D or remain in Australia, given the parents' agreement on equal shared parental responsibility and the children's current living arrangement. The court also had to consider the children's best interests, taking into account their need for stability and the impact of the COVID-19 pandemic on international travel.

The court found that while the children expressed a desire to return to City D, they were too young to fully understand the implications of such a move. The mother had returned to Australia with the children for a holiday in March 2020, but the onset of the COVID-19 pandemic prevented her from returning to City D. The father had also travelled to Australia in May 2020 and remained there. Both parents agreed that the children's current living arrangement was in their best interests, providing them with a meaningful relationship with both parents. The court acknowledged the father's frustration but noted the unpredictability of the international travel situation due to the pandemic. An order to relocate the children to City D at that time would have created uncertainty, potentially leading to further changes of school and living arrangements, which the court deemed detrimental to the children's stability.

The court concluded that the children's best interests would be served by maintaining their current living arrangement in Australia. The order discharged previous parenting orders and established equal shared parental responsibility for major long-term issues, with specific time-sharing arrangements for the children. The father was restricted from taking the children overseas until the youngest child turned 14, with provisions for the father to spend school holidays with the children in City D once the youngest child reached that age. The court also included provisions for communication between the parents and the children, as well as obligations for the parents to keep each other informed about significant changes and medical information concerning the children.

In summary, the court ordered that the children remain in Australia, with specific arrangements for time-sharing between the parents, and restrictions on overseas travel until the youngest child turned 14. The court emphasized the importance of stability for the children and the need for the parents to continue to cooperate in their joint parenting responsibilities.

Orders

Orders of the court

BRC 9004 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS RENALDO

Applicant

AND:

MR DECORA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAREW J

DATE OF ORDER:

7 SEPTEMBER 2021

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged.

Parental Responsibility

2. Ms Renaldo (“the mother”) and Mr Decora (“the father”) have equal shared parental responsibility in relation to ‘major long term issues’ (as that term is defined by s 4(1) of the Family Law Act 1975 (Cth)) for the children X born … 2011 and Y born … 2012 (“the children”).

3. In the exercise of their parental responsibility in relation to major long term issues the parents shall:

(a) consult each other in relation to the decision to be made about the issue; and

(b) make a genuine effort to come to a joint decision about that issue.

Time with Parents

In the event the father is residing in Region G, Queensland, Australia

4. The children live with the mother when they are not living with the father.

5. The children live with the father at all such times as may be agreed and failing agreement as follows:

(a) during school term, each alternate week from after school on the Friday until before school the following Friday;

(b) half of all school holidays;

(c) the children’s birthdays as arranged between the parties;

(d) Father’s Day from the eve before until 6pm Sunday;

(e) Christmas Eve from 5pm until 5pm Christmas Day in even numbered years; and

(f) Easter from Good Friday 9am until Easter Monday 5pm in odd numbered years.

In the event the father is residing in City D, Country E

6. The children live with the mother.

7. The children spend time with the father at all such times as may be agreed and failing agreement as follows:

(a) for one half of all school holidays as agreed and failing agreement for the first half of the school holidays in even numbered years and the second half in odd numbered years;

(b) if the father is in Australia for Father’s Day, then for the Father’s Day weekend, with the father to provide no less than 30 days’ notice to the mother in writing if he will be in Australia;

(c) if the father is in Australia on the children’s birthday for such time as agreed and failing agreement for half a day each with the father to provide no less than 30 days’ notice to the mother in writing if he will be in Australia; and

(d) if the father is in Australia at other times for no less than 30 days, for 7 day intervals (week about) from the date of his arrival, with the father to provide no less than 30 days’ notice to the mother in writing if he will be in Australia.

Overseas travel

8. Unless agreed in writing to the contrary, until the child Y turns 14 years of age, the father’s time with the children shall be spent in Australia and the father shall provide to the mother (prior to the commencement of such time) the address at which the children will be living with the father during such times.

9. The father and the mother, their servants and/or agents are restrained from removing or attempting to remove the children, X born in 2011 and Y born in 2012, from the Commonwealth of Australia without the authenticated written consent from the other parent.

10. The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to this order, including all things necessary to include and retain the names of the children, X born in 2011 and Y born in 2012, on the family law watch list in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children’s names on the family law watch list until the child Y turns 14.

11. From and including the day the child Y turns 14 the father shall be at liberty to spend the school holidays with the children in City D, Country E, and prior to departure from Australia the father shall provide to the mother copies of the return flight tickets for the children and the address and contact details for the place at which the children will be spending the school holidays with him.

12. The mother shall hold the children’s passports unless travelling with the father and upon their return to the mother the father shall return the passports to the mother.

Communication with children

13. The father and mother shall be at liberty to FaceTime/phone the children each day from 5.30pm (Eastern Standard Time) for reasonable durations while the children are in the care of the other parent.

Changeovers

14. When changeovers cannot occur at the children’s school, changeover is to be effected by the parents (or such other person/s as agreed) at an agreed venue.

IT IS FURTHER ORDERED BY CONSENT:

15. The mother and the father shall:

(a) keep the other parent informed at all times of their residential address, email address and mobile telephone number, and provide the other parent with confirmation of any change to those details within forty-eight (48) hours of the said change occurring;

(b) keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat either of the children and by virtue of this Order any such practitioner is authorised to provide either parent with information that they are lawfully able to provide about either of the children; and

(c) inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by either of the children.

16. This Order authorises the schools attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children, at the requesting parent’s cost.

Specific Issues

17. Each parent shall:

(a) respect the privacy of the other parent and not question either of the children about the personal life of the other parent;

(b) speak of the other parent respectfully; and

(c) not denigrate or insult the other parent in the presence or hearing of either of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of either of the children.

18. The parents are to communicate by telephone, email, text or a parenting app about all children’s matters.

IT IS FURTHER ORDERED:

19. Any outstanding application is otherwise dismissed.

20. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

NOTATION:

A. The parents agree that the children will not be left unsupervised by either parent with persons who are under the influence of illicit drugs or alcohol.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Before turning to a consideration of the issues, it will be helpful to set out some background and the applicable legal principles. BACKGROUND The parents commenced a relationship in City D, Country E in 2009 and married in 2011. They relocated to Australia in 2011 where their two children were born. X was born in 2011 and Y was born in 2012. The parties disagree about when they separated. The mother says it was in 2012 and the father says it was in 2015. In any event, the parents and the children remained living predominantly in Australia until March 2017 when the parties and the children relocated to City D. By agreement, at least initially, the children lived with the father for five days and with the mother for two days each week. The mother contends that her efforts to have the children live with her for longer periods were thwarted by the father. The mother returned to Australia with the children in March 2020 for a two week holiday. When the COVID-19 pandemic was declared, the mother was unable to return to City D with the children. Accordingly, she and the children have remained in Australia. The father travelled to Australia in May 2020 and has also remained here since that time. The parents and children now live in Region G (where the mother moved in June 2020 and the father in about February 2021) and the children live in a week about arrangement moving between their parent’s respective households. The mother was born in Australia in 1989 and is an Australian citizen. The mother’s mother is from Country E. The mother has two sisters, Ms W and Ms Z. The mother’s father lives in Town B, New South Wales and her mother lives in Region G as does her sister, Ms W (although the mother is currently estranged from Ms W). The mother moved to City D in her late teens. Her sister, Ms Z, continues to live in City D. The mother operates an online business with her main clientele in Australia. The mother lives with her partner, Mr P. She met Mr P in City D and they lived together for a short time in City D in 2019. Mr P moved to Country V in early 2020 but, as an Australian citizen, returned to Australia on the advice of the Australian government in or about March 2020. He and the mother recommenced their relationship in about June 2020 and moved in together shortly thereafter. Mr P is a part-time educator and is employed in another business four days per week. The father was born in City D in 1984. The father is a Country W citizen but has had an Australian permanent residency visa since 2013 which enables him to live and work in Australia and he has done so for extended periods. The father’s extended family live in City D. The father commenced a relationship with Ms Q in June 2017 and she and the father lived together until February 2020 when Ms Q returned to Country T for what was intended to be a temporary visit. Ms Q currently lives in Country T but intends to return to City D if the father returns to live there. The father has a financial interest in a business in City D and also in a food outlet in adjoining premises. He is in the process of building in City D on land gifted to him by his father and with financial assistance from the mother’s father. The father’s businesses are operated by his business partner in his absence but the father does not receive any income therefrom. The father currently works on a casual basis in Region G and earns $58 per hour.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The boys have said they want to return to City D and they described an idyllic lifestyle to the family report writer, Ms S. The boys are still very young and at the time they were interviewed by Ms S, had just been in the care of the father. Ms S did not consider the boys were of sufficient maturity to understand the consequences of their wishes. I accept her opinion. Conclusion I can certainly understand the father’s frustration, in that, what was intended and agreed to be a two week holiday in March 2020 has resulted in upheaval for all concerned. However, the COVID-19 pandemic intervened and the mother was unable to return to City D as international borders closed. The situation was a matter beyond anyone’s control. Fortunately, the children have a close and loving relationship with both parents and although each parent has been critical of the other in relation to their past conduct, they both agree that the best outcome for the children would be for them to continue to live in a week about arrangement. Obviously, that would not be practicable if the parents do not live in close proximity. The parents also agree that it would be in the children’s best interests for them to equally share parental responsibility. Again, despite each parent’s criticisms of the other, they have demonstrated a commitment to making joint parenting decisions for the children in the future and, in my view, that will be beneficial for the children. If an order is made for the children’s relocation to City D, the mother will return to City D but, such an order at this time, would result in considerable uncertainty for the children. It is impossible to predict when the children would be able to leave Australia. The father submits that he will not leave Australia with the children until the mother is able to return to City D and remain there. The mother first needs to apply for permission to leave Australia and then she will need to obtain a visa that would permit her to live permanently in City D. While the mother was able to do so in 2017, the COVID-19 pandemic creates considerable uncertainty about the availability of such a visa. In the meantime, while awaiting permission to leave Australia, and for a visa to issue to the mother, the father proposes that the children live in Town B where he proposes he and the children would live with the maternal grandfather. That would involve another change of school for the children. It is unclear whether the mother would also move to Town B pending relocation to City D. The mother and her father are estranged so if she did move to Town B, the mother would have to obtain other accommodation. An interim move to Town B is not something I consider would be beneficial to the children. Ms S considers that stability is most important at this time for the children, particularly given the history of significant changes in their lives to date. I accept that stability is a significant factor. The ICL recommends against relocation to City D.

Ratio Decidendi

Legal Principle Established

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