Ellis and Massimino-Ellis - [2013] FamCA 738

FAMILY COURT OF AUSTRALIA

ELLIS & MASSIMINO-ELLIS [2013] FamCA 738

FAMILY LAW – CHILDREN – Where it is in the child’s best interests that the mother have sole parental responsibility and for the child to live with her and inform the father – Where the parties cannot agree how often the father should spend time with the child and whether supervision is necessary – Whether there is a risk that the father could interact with the child in a sexualised manner - Where it is appropriate that the father spend limited time with the child, initially on a supervised basis in order to promote a meaningful relationship between the father and the child.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC

Briginshaw v Briginshaw (1938) 60 CLR 336
Champness & Hanson (2009) FLC 93-407
G & C [2006] FamCA 994
Leighton & Carey [2010] FamCAFC 94
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405

APPLICANT: Mr Ellis

RESPONDENT: Ms Massimino-Ellis

INDEPENDENT CHILDREN’S LAWYER: NSW Legal Aid

FILE NUMBER: PAC 4586 of 2009

DATE DELIVERED: 27 September 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta

JUDGMENT OF: Loughnan J

HEARING DATE: 2 - 4 September 2013
REPRESENTATION

SOLICITOR FOR THE APPLICANT: Michael Vassili Lawyers

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITOR FOR THE RESPONDENT: Watkins Tapsell Lawyers

ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr P Walkden
Orders
(1)The mother shall have sole parental responsibility for all major long term issues in respect of the child of the marriage namely, B, born … 2007 (hereinafter “the child”) save that the mother shall, prior to making the ultimate decision about any such issue:
(a)advise the father in writing of the decision she intends to make;
(b)seek the father's written response in relation thereto;
(c)consider by reference to the best interests of the child, any such response; and
(d)advise the father in writing as soon as reasonably practicable of her ultimate decision.

(2)The child shall live with the mother.
(3)The child shall spend time with the father as follows:
(a)on alternate Saturdays from 9.30 am until 1.30 pm for a period of nine months with changeovers at C Centre (or such other place as may be agreed);
(b)that time will be supervised by Mr D or such other person as the parties agree upon in writing;
(c)after nine months the time shall be from 9.30 am to 5.30 pm and for the next three months, shall be exercised with Mr D or such other person as the parties agree upon in writing, in the vicinity of the child;
(d)thereafter, the father’s time with the child will be unsupervised; and
(e)once the child attains the age of 13 years, for such additional times as the parties may agree in writing.

(4)In relation to any dispute about the arrangements for the child to spend time with her father pursuant to 4…

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

Case: [2013] FamCA 738
Decision Date: 27 September 2013

CaseChat Overview and Summary

This matter concerned an application by the mother, Ellis, and the father, Massimino-Ellis, regarding parenting orders for their child, B. The proceedings were heard by Loughnan J.

The court was required to determine the specific arrangements for the child's residence, time spent with each parent, and parental responsibility for major long-term issues. Key issues included the extent of the father's time with the child, the supervision of that time, and the allocation of decision-making authority concerning the child's upbringing. The court also had to consider orders relating to the child's welfare, including prohibitions on physical discipline and the discussion of proceedings with the child, as well as specific restrictions on the father's conduct while the child is in his care.

Loughnan J made orders that the mother would have sole parental responsibility for all major long-term issues concerning the child, subject to a process of consultation with the father. The child was ordered to live with the mother, and the father was granted supervised time with the child, with the duration and supervision requirements progressively decreasing over time. The court also made orders regarding the child's schooling, passport, and special days, and imposed specific restraints on both parents concerning the child's discipline and exposure to the proceedings. Furthermore, the parties were ordered to engage with a therapist and to contribute to the costs of the Independent Children's Lawyer.

Orders

Orders of the court

(1) The mother shall have sole parental responsibility for all major long term issues in respect of the child of the marriage namely, B, born … 2007 (hereinafter “the child”) save that the mother shall, prior to making the ultimate decision about any such issue:

(a) advise the father in writing of the decision she intends to make;

(b) seek the father's written response in relation thereto;

(d) advise the father in writing as soon as reasonably practicable of her ultimate decision.

(2) The child shall live with the mother.

(3) The child shall spend time with the father as follows:

(a) on alternate Saturdays from 9.30 am until 1.30 pm for a period of nine months with changeovers at C Centre (or such other place as may be agreed);

(b) that time will be supervised by Mr D or such other person as the parties agree upon in writing;

(c) after nine months the time shall be from 9.30 am to 5.30 pm and for the next three months, shall be exercised with Mr D or such other person as the parties agree upon in writing, in the vicinity of the child;

(d) thereafter, the father’s time with the child will be unsupervised; and

(e) once the child attains the age of 13 years, for such additional times as the parties may agree in writing.

(4) In relation to any dispute about the arrangements for the child to spend time with her father pursuant to 4 (e) above the parties shall attend for Family Dispute Resolution.

(5) The father’s time pursuant to Order 3 shall be suspended for two weeks per calendar year as nominated by the mother and notified to the father 28 days in advance provided that the father shall have time with the child in lieu of that period or those periods in accordance with the regime in place pursuant to that order at the time of the suspension, on a day or days nominated by the father within two months of the date or dates affected by the suspension or within such greater period on which the parties may agree.

(6) For a period of two years following the date of these orders or for such further period as may be deemed appropriate by the therapist, the parties shall engage with an appropriate therapist to be nominated by the Independent Children’s Lawyer for the purposes of assisting of the child and the parties to progress from the current arrangements

(7) The Independent Children’s Lawyer has leave to provide the therapist with a copy of the Single Expert Report herein.

(8) In the event that the child is in the care of the father pursuant to these orders on the Mother’s Day weekend, she shall be returned to the mother at 6.00 pm on the Saturday.

(9) In the event that the child is not otherwise in the care of the father pursuant to these orders on Father’s Day, she shall spend from 9.30 am to 5.30 pm with the father on that day.

(10) The father and the mother are hereby restrained from:

(a) subjecting the child to any form of physical discipline or striking; and

(b) showing the child any document pertaining to these proceedings or discussing with the child or within her hearing any allegation made in these proceedings.

(11) The father is hereby restrained from :

(a) consuming or being under the influence of alcohol whenever he is spending time with the child;

(b) from accessing or using any form of pornography or adult literature when the child is in his care; and

(12) Within fourteen (14) days of the mother providing a Passport Application for the child to the father, he shall sign and return the said Application to the mother. The mother shall be solely responsible for and shall retain any passports issued in the name of the child.

(13) The mother shall within seven days sign an authority to the child’s school to authorise the school to provide the father with copies of school reports ordinarily provided to parents.

(14) The father is at liberty to attend at school functions and sporting events ordinarily attended by parents.

(15) Within a period of six months from the date of these orders each of the parties shall pay to Legal Aid NSW the sum of $3,419.75 towards the costs of the Independent Children’s Lawyer herein.

(16) Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

(17) Leave is granted to the parties to apply within 28 days, on giving at least seven (7) days’ notice to the Court and each other in relation to the wording of these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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