Correa & Maestri (No 2) - [2023] FedCFamC2F 507

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Correa & Maestri (No 2) [2023] FedCFamC2F 507

File number: ADC 3300 of 2018

Judgment of: JUDGE BROWN

Date of judgment: 12 May 2023

Catchwords: FAMILY LAW – Parenting – final hearing – high conflict – parenting arrangements for child aged 7 – where the parties have no capacity to co-parent – parties have diverse cultural background – where final orders were made by consent in 2018 – parties each seek primary care of the child – whether a change in arrangement would be in the child’s best interests – assessment of risk – matters to be considered – overseas travel – conferral of parental responsibility

Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65C, 65D, 65DAA, 65DAC, 65DAE, 68LA

Evidence Act1995 (Cth) s 140

Intervention Orders (Prevention of Abuse) Act 2009 (SA)

Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth)

Cases cited:
Astor & Astor [2007] FamCA 355

B v B: Family Law Reform Act 1995 (1997) FLC 92-755

Bartel & Schmucker (No 3) [2012] FamCA 1094

Bright v Bright (1995) FLC 92-570

Deiter & Deiter [2011] FamCAFC 82

Correa & Maestri [2022] FedCFamC2F 609

Eaby & Speelman (2015) FamCAFC 104

Fox v Percy (2003) 214 CLR 118

Gin & Hing [2010] FamCA 617

Goode & Goode [2006] FamCA 1346

H v W (1995) 18 Fam LR 788

Jurchenko & Foster (2014) 51 Fam LR 588

M & M (1988) 166 CLR 69

Mazorski v Albright (2007) 37 Fam LR 518

MRR v GR (2010) 240 CLR 461

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

R & R: Children’s Wishes (2000) 25 Fam LR 712

Russell & Russell & Anor [2009] FamCA 28

Slater & Light [2013] FamCAFC 4

Taylor & Barker (2007) FLC 93-345

Zawai & Rayne [2016] FamCAFC 90

Division: Division 2 Family Law

Number of paragraphs: 433

Date of last submissions: 23 February 2023

Date of hearing: 8, 9, 10 August 2022, 17, 18 October 2022 & 1 February 2023

Place: Adelaide

Counsel for the Applicant: Ms Cocks

Solicitor for the Applicant: D’Angelo Lawyers

Counsel for the Respondent: Mr McLeod

Solicitor for the Respondent: Ryder Family Law

Counsel for the Independent Children's Lawyer: Ms Boyle

Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia
ORDERS

ADC 3300 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CORREA

Applicant

AND:
MS MAESTRI

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE BROWN

DATE OF ORDER:

12 May 2023

THE COURT ORDERS THAT:
1.All previous parenting orders are hereby discharged.
2.The parties shall have equal shared parental responsibility for the child X born in 2015 (‘X’).
3.X shall live with each of the parties as follows:
(a)With the mother from the date of these orders until the conclusion of school on 19 May 2023;
(b)Commencing 19 May 2023, on a week about basis with the father from the conclusion…

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 Correa & Maestri (No 2)

Details

AGLC: Correa & Maestri (No 2) [2023] FedCFamC2F 507
Case: [2023] FedCFamC2F 507
Decision Date

CaseChat Overview and Summary

Correa and Maestri (No 2) was a case in which the parents of a child, X, were unable to reach an agreement regarding future parenting arrangements for him. Each parent sought primary care of X, alleging that the other posed a risk to his safety and wellbeing. The court considered the legal issues and the evidence presented by both parents and ultimately decided that an equal shared parental responsibility regime, with X spending time with each parent on a week-about basis, was in the child's best interests. The court also made orders regarding education, overseas travel, and special occasions. The court emphasised the importance of both parents remaining involved in X's life and the need for them to communicate and cooperate to the best of their abilities, despite their difficult relationship.

Orders