Yu & Casali - [2022] FedCFamC2F 1371

Federal Circuit and Family Court of Australia
(DIVISION 2)
Yu & Casali [2022] FedCFamC2F 1371

File number(s): MLC 14067 of 2021

Judgment of: JUDGE GLASS

Date of judgment: 14 October 2022

Catchwords: FAMILY LAW – PARENTING – RELOCATION – where mother seeks to relocate to Queensland with child age 6 – whether it is better for child to live with the mother in Queensland or with the father in Melbourne – evaluation of competing proposals – where the mother has been the predominant care giver in child’s life – where the prospect of the father relocating is not explored – where the right of freedom of mobility ought defer to the paramount considerations of child’s best interest to warrant interference

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

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190

Cases cited:
Adamson & Adamson (2014) FLC 93-622

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1

AMS v AIF (1999) 199 CLR 160

Asher & Wilkinson (2020) FLC 93-945

Browne & Dunn (1894) 6 R. 67

Champness & Hanson (2009) FLC 93-407

Craven v Craven (1976) FLC 90-049

D & SV (2003) FLC 93-137

Fitzwater & Fitzwater (2019) 60 Fam LR 212

Franklyn & Franklyn [2019] FamCAFC 256

Godfrey & Saunders [2007] FamCA 102

Isles & Nelissen (2022) FLC 94-092

Jurchenko & Foster (2014) FLC 93-598

Keskin & Keskin & Anor (2019) FLC 93-932

LC v TC (1998) FLC 92-803

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Morgan & Miles (2007) FLC 93-343

MRR v GR (2010) 240 CLR 461

Muldoon & Carlyle (2012) FLC 93-513

Sampson & Hartnett (No 10) (2007) FLC 93-350

Searson & Searson (2017) FLC 93-788

Jones v Dunkel (1959) 101 CLR 298

Taylor & Barker (2007) FLC 93-345

Tibb & Sheen (2018) 58 Fam LR 351

U v U (2002) 211 CLR 238

Ulster & Viney (2016) FLC 93-722

Wagstaff & Wagstaff (2022) FLC 94-098

Yarrow & Yarrow [2022] FedCFamC1A 135

Division: Division 2 Family Law

Number of paragraphs: 130

Date of last submission/s: 5 October 2022

Date of hearing: 3 – 5 October 2022

Place: Melbourne

Counsel for the Applicant: Ms Paterson

Solicitor for the Applicant: Taussig Cherrie Fildes

Counsel for the Respondent: Ms Mallet

Solicitor for the Respondent: Marshalls+Dent+Wilmoth
ORDERS

MLC 14067 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS YU

Applicant

AND:
MR CASALI

Respondent

order made by:

JUDGE GLASS

DATE OF ORDER:

14 October 2022

THE COURT ORDERS THAT:
1.The Mother and Father have equal shared parental responsibility for X born in 2016.
2.X live with the Mother in City B, Queensland.
3.Upon X relocating to live with the Mother in City B, if the Father lives interstate from X, X spend time with the Father at times to be agreed in writing and failing agreement:
(a)during school terms (as timetabled by the school X attends):
(i)in Melbourne, for…

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.

Continue reading Yu & Casali

Details

AGLC: Yu & Casali [2022] FedCFamC2F 1371
Case: [2022] FedCFamC2F 1371
Decision Date

CaseChat Overview and Summary

This case involved a dispute between Ms Yu and Mr Casali, the parents of a six-year-old child, X, about whether X should be permitted to relocate with Ms Yu to Queensland, or remain with his father in Melbourne. Ms Yu proposed that X live with her in Queensland and spend time with his father in Melbourne on approximately sixteen occasions each year, including for extended school holiday periods. Mr Casali proposed that X continue to reside in Melbourne and spend time with Ms Yu for one weekend each term in Queensland and up to 10 nights per month in Melbourne, as well as for extended holiday periods and on special occasions. The Court concluded that it was in X’s best interests to live with Ms Yu in Queensland, and for him to spend substantial and significant time with his father in Melbourne. The Court found that Ms Yu’s proposal for X’s time with his father was practicable and in X’s best interests. The Court also found that the parties should have equal shared parental responsibility for X. The Court made orders for X to live with Ms Yu in Queensland and spend time with his father in Melbourne on approximately sixteen occasions each year, including for extended school holiday periods. The Court also made orders for the parties to have equal shared parental responsibility for X, and for the parties to communicate with each other and X in accordance with the orders.

Orders