DAMBROSE & PACETTI - [2019] FCCA 3320

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAMBROSE & PACETTI

[2019] FCCA 3320

Catchwords:
FAMILY LAW – Interim parenting hearing – best interests of child –orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Cases cited:

Marvel & Marvel [2010] FamCA 240

Eaby & Speelman [2015] FamCAFC 104

Banks & Banks [2015] FamCAFC 36

Applicant:

MS DAMBROSE

Respondent:

MR PACETTI

File Number:

PAC 2061 of 2018

Judgment of:

Judge Newbrun

Hearing date:

19 November 2019

Date of Last Submission:

19 November 2019

Delivered at:

Parramatta

Delivered on:

9 December 2019

REPRESENTATION

Counsel for the Applicant:

Ms Giacomo

Solicitors for the Applicant:

Ms Shelly

Solicitors for the Respondent:

Ms Khalil

Solicitors for the Independent Children's Lawyer:

Ms Rutkowska

ORDERS PENDING FURTHER ORDER

The mother’s Application a Case filed 10 April 2019 is dismissed.
The mother’s proposed interim parenting orders in her Amended Response filed 30 October 2019, seeking to spend unsupervised time with the child, or in the alternative, her “alternate position” seeking to spend time with the child, initially monitored by either Ms A or Ms B, are dismissed.
The mother shall be permitted to spend supervised time with the child at the group playgroup at the Suburb M and Suburb C Children's Contact Centres, due to commence in late January 2020.
The mother is directed to request the Suburb C Children's Contact Centre to reinstate the child’s supervised time with her, at least pending the child beginning to spend supervised time with the mother at the above group playgroup.
Should the mother be unsuccessful in seeking to have reinstated the child’s supervised time with her at the Suburb C Children's Contact Centre, and/or she be unsuccessful in spending supervised time with the child at the above group playgroup, then the mother shall be permitted to spend supervised time with the child at a professionally recognised contact centre.
The mother shall attend upon her current treating health practitioners with respect to her mental health, and comply with her treatment and medication if so prescribed.

IT IS NOTED that publication of this judgment under the pseudonym Dambrose & Pacetti is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2061 of 2018

MS DAMBROSE

Applicant

And

MR PACETTI

Respondent

REASONS FOR JUDGMENT

These Reasons relating to an interim parenting hearing held on 1 November 2019. The subject child is X born … 2016.
The primary issue at this interim hearing was whether or not the child should begin to spend unsupervised time with the mother.
The Court refers to previous interim parenting orders made in these proceedings.
On 31 July 2018, by consent and pending the hearing of the father’s Application in a Case filed 30 July 2018, the child was ordered to live with the father, and spend supervised time with the mother through the Suburb C Contact Service. The father’s Application in a Case was adjourned for hearing to 26 October 2018.
On 26 October 2018, the Court held…

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: DAMBROSE & PACETTI [2019] FCCA 3320
Case: [2019] FCCA 3320
Decision Date: 9 December 2019

CaseChat Overview and Summary

In *Dambrose & Pacetti*, heard before Newbrun J, the dispute concerned interim parenting orders. The application before the court sought to establish arrangements for the children pending final determination of parenting proceedings.

The central legal issue before the court was the determination of the best interests of the child in the context of interim parenting orders. This required the court to consider the relevant factors under the *Family Law Act 1975* (Cth) and to balance the competing claims and needs of the parties and the children.

Newbrun J applied the principles governing interim parenting orders, emphasising that such orders are temporary and should be made with a view to maintaining the status quo where possible, unless there are compelling reasons to depart from it. The court considered evidence relating to the children's welfare, including their relationships with each parent and any potential risks. The paramount consideration remained the best interests of the children, which guided the court's assessment of the appropriate interim arrangements.

The court made specific interim orders regarding the children's living arrangements and time spent with each parent, designed to promote their welfare and stability during the ongoing proceedings.

Orders