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VALDEMAR & MICALI

VALDEMAR & MICALI

Case [2020] FCCA 2965 30 October 2020

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FEDERAL CIRCUIT COURT OF AUSTRALIA

VALDEMAR & MICALI

[2020] FCCA 2965

Catchwords:
FAMILY LAW – Interim parenting – Father seeking order that Mother relocate child’s residence back to former living region - proposed order not made – best interests of child – interim parenting orders made.

Legislation:

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

Cases cited:

Banks & Banks [2015] FamCAFC 36

Cimorelli & Wenlack [2020] FamCAFC 58

Eaby & Speelman [2015] FamCAFC 104

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC

Rice & Asplund (1979) FLC 90-725

Saif & Saif [2020] FamCA 119

Salah & Salah [2016] FamCAFC 100

Applicant:

MR VALDEMAR

Respondent:

MS MICALI

File Number:

PAC 3020 of 2016

Judgment of:

Judge Newbrun

Hearing date:

10 July 2020

Date of Last Submission:

10 July 2020

Delivered at:

Parramatta

Delivered on:

30 October 2020

REPRESENTATION

Counsel for the Applicant:

Ms Cantrell of Counsel

Solicitors for the Applicant:

Madison Marcus Law Firm

Solicitors for the Respondent:	The Respondent appeared in person
Solicitors for the Independent Children’s Lawyer	Ms Dodson - Legal Aid NSW Penrith

ORDERS PENDING FURTHER ORDER

That all previous orders relating to the child spending specific time with the Father are suspended.
That the child reside with the Mother.
That the child be permitted to reside with the Mother in Town B.
That the child spend time with the Father as follows:
(a)On Saturday, 7 November 2020, from 10 AM to 4 PM,
(b)On Saturday, 21 November 2020, from 10 AM to 4 PM,
(c)On Saturday, 28 November 2020, and each Saturday thereafter for 4 weeks, from 10 AM to 4 PM,
(d)Thereafter, on a fortnightly basis, for 3 months, from 10 AM Saturday to 5 PM Sunday,
(e)Thereafter, on a fortnightly basis, from Friday 6 PM to Sunday 5 PM.
(f)Such further time as agreed between the parties.
Changeover, in relation to the above time in Order 4, shall be facilitated with the child being delivered to the father’s residential address by the mother at the commencement of time, and collected from the father’s residential address by the mother at the conclusion of such time.
That for the purposes of Order 4 above, each of the parents shall be and are hereby restrained from questioning the child in respect of time arrangements, and particularly her wishes to spend overnight time in the Father's household.
That the child shall have liberal and flexible FaceTime and Telephone time with the Father, and for the purposes of this Order, the Mother shall ensure that the Father’s telephone number is unblocked on the child’s Telephone.
That the parents and/or their agents are hereby restrained from removing or attempting to remove the child X born in 2009 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of X born in 2009 on the Family Law Watchlist in force at all points of arrival and departure by air or by sea in…

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.

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Details

AGLC: VALDEMAR & MICALI [2020] FCCA 2965
Case: [2020] FCCA 2965
Decision Date: 30 October 2020

CaseChat Overview and Summary

In *Valdemar & Micali*, the father sought interim orders for the mother to relocate the child’s residence back to their former living region. Newbrun J of the Family Court of Australia considered the father's application.

The central legal issue before the court was whether it was in the best interests of the child to make interim orders requiring the mother to relocate the child’s residence. This involved assessing the competing interests and circumstances of the parties and, most importantly, the welfare of the child during the interim period.

Newbrun J applied the paramount consideration of the best interests of the child in determining the interim parenting orders. The court considered the evidence presented by both parties regarding the child’s current living arrangements, the proposed relocation, and the potential impacts on the child. After careful consideration of these factors, the court determined that the proposed interim order for relocation was not in the child's best interests at that time.

Consequently, Newbrun J made interim parenting orders that did not include the relocation of the child’s residence as sought by the father.

Orders