VILLAR & MEISNER - [2018] FCCA 2499

FEDERAL CIRCUIT COURT OF AUSTRALIA

VILLAR & MEISNER

[2018] FCCA 2499

Catchwords:
FAMILY LAW – Parenting – relocation.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 65DAA

Cases cited:

Adamson (2014) FLC 93-622

Sayer&Radcliffe [2012] FamCAFC 209

U v U (2002) 211 CLR 238

Applicant:

MS VILLAR

Respondent:

MR MEISNER

File Number:

BRC 10148 of 2015

Judgment of:

Judge Altobelli

Hearing date:

1 August 2018

Date of Last Submission:

1 August 2018

Delivered at:

Sydney

Delivered on:

5 October 2018

REPRESENTATION

Counsel for the Applicant:

Ms Horsley

Solicitors for the Applicant:

Hopgood Ganim Lawyers

Counsel for the Respondent:

Mr Streit

Solicitors for the Respondent:

Rice Naughton McCarthy Family Lawyers

ORDERS BY CONSENT

That paragraphs 8, 11, 17, 23 to 26, 28, 29, 30, 34, 36 and 41 of the Orders made on 11 August 2016 in respect of [X] born 2010 (‘the Child’) be discharged.

Communication

That the Child will communicate with the parent with whom they are not spending time with by telephone, mobile, Skype or similar means at all times as may be agreed and failing agreement, each Monday, Wednesday and Saturday between 6.00pm to 6.30pm, with the parent with whom the Child is spending time to facilitate such communication.
If either parent intends to travel away with the Child overnight, that parent must provide the other parent with 24 hours’ notice (or, if 24 hours’ notice is not possible, as soon as reasonably practicable) of the proposed travel arrangements.

Overseas travel

That pursuant to section 65Y of the Family Law Act 1975 (Cth) both parents be at liberty to travel overseas with the Child during such periods as the Child is in their care provided:
(a)The travelling parent provides at least 28 days written notice to the other parent of their intention to travel overseas with the Child, including:
(i)the approximate departure and return dates;
(ii)the name of the persons who will be accompanying the Child;
(iii)the country or countries the Child will be travelling to.
(b)At least 14 days prior to the departure date, the travelling parent must provide to the non-travelling parent:
(i)a copy of the Child’s itinerary which must include return airfare ticketing;
(ii)the dates on which the Child will arrive and depart each country;
(iii)a landline and mobile telephone number and address at which the Child can be contacted in each country.
That the Child’s passport is to be held by the Mother.
That the parties do all acts and take all steps necessary to ensure the Child’s passport remains valid at all times with any such renewal costs to be shared equally between the parties.
That in the event the Father is to travel with the Child, the Mother shall make the Child’s passport available to the Father at least 7 days prior to the departure date and the Father shall return the Child’s passport to the Mother within 48 hours of the Child returning to Australia.
That each parent will provide any details requested in relation to the Child’s passport,…

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: VILLAR & MEISNER [2018] FCCA 2499
Case: [2018] FCCA 2499
Decision Date: 5 October 2018

CaseChat Overview and Summary

The case of *Villar & Meisner* concerned a dispute over parenting arrangements, specifically an application for relocation. The matter came before Altobelli J of the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether to grant the mother's application to relocate with the parties' child from Sydney to Perth. This required the court to consider the best interests of the child, as mandated by the *Family Law Act 1975* (Cth), and to weigh the various factors relevant to such a significant geographical change.

Altobelli J applied the principles established in * তা (Relocation Cases)* [2009] FamCA 278, which emphasise that relocation cases are not to be treated as a special category of case. The court considered the practical implications of the proposed move, including the impact on the child's relationship with the father, the child's schooling and social connections, and the practicalities of shared parenting arrangements post-relocation. The court also assessed the genuine reasons for the proposed relocation and the potential benefits and detriments to the child.

The court ultimately dismissed the mother's application for relocation.

Orders