Fabina & Manalo - [2022] FedCFamC2F 1634

Federal Circuit and Family Court of Australia
(DIVISION 2)
Fabina & Manalo [2022] FedCFamC2F 1634

File number(s): SYC 3632 of 2019

Judgment of: JUDGE MORLEY

Date of judgment: 29 November 2022

Catchwords: FAMILY LAW – parenting – application for final orders – where father seeks orders for the child live with him – where mother seeks orders for the child to spend less than substantial and significant time with the father – where child has ongoing health issues – where father seeks sole parental responsibility – where mother seeks sole parental responsibility for health and medical decisions and shared parental responsibility for other matters – where the Court finds it in the best interests of the child for the parents to have equal shared parental responsibility – where the Court finds it is in the best interests of the child to spend time with the father on a graduated regime increasing to shared ‘week about’ care – where the mother’s application to travel with the child outside the Commonwealth of Australia and New Zealand is refused

Legislation: Family Law Act 1975 (Cth) – ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB, 65DAE, 65Y

Cases cited:
A & A & The Child Representative [1998] FamCA 25

Godfrey & Sanders (2007) FamCA 102

Grella & Jamieson [2017] FamCAFC 21

Johnson & Page [2007] FamCA 1235

M & M (1988) 166 CLR 69

M & S (formerly E) (2007) FLC 93-313

Mazorski & Albright [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Napier & Hepburn [2006] FamCA 1316

Pavli & Beffa [2013] FamCA 144

Tait & Densmore (2007) FamCA 1383

Division: Division 2 Family Law

Number of paragraphs: 193

Date of hearing: 7-10 March 2022

Place: Sydney

Counsel for the Applicant: Ms Treherne

Solicitor for the Applicant: Daniela Fazio Lawyers

Counsel for the Respondent: Mr Finch

Solicitor for the Respondent: Litigant in Person
ORDERS

SYC 3632 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR FABINA

Applicant

AND:
MS MANALO

Respondent

order made by:

JUDGE MORLEY

DATE OF ORDER:

29 November 2022

THE COURT ORDERS THAT:
1.That all previous parenting orders are discharged.
2.That the father (“the father”) and the mother (“the mother”) have equal shared parental responsibility for the child X born in 2018 (“the child”).
3.That the child live with and spend time with his parents as follows:
(a)From the date of these orders until the child starts school in 2023, the child live with the mother and spend time with the father:
(i)In week one:
A.From 4:30PM on Tuesday until 7:30PM; and
B.From 4:30PM on Wednesday until 7:30PM on Friday.

(ii)In week two:
A.From 4:30PM on Tuesday until 7:30PM; and
B.From the end of day care on Friday (or 3:30PM if he is not at day care) until the start of day care on Monday (or 9:00AM if he is not at day care).

(b)From the start of Term 1 in 2023, during term time the child live with the mother and…

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 Fabina & Manalo

Details

AGLC: Fabina & Manalo [2022] FedCFamC2F 1634
Case: [2022] FedCFamC2F 1634
Decision Date

CaseChat Overview and Summary

In the matter of Fabina v Manalo, the Federal Circuit and Family Court of Australia considered parenting orders for the parties' child. The father sought sole parental responsibility and specific arrangements for the child's time. The mother sought equal shared parental responsibility and various health-related decisions. The Court found it best for the child for both parents to have equal shared parental responsibility. The Court ordered a graduated regime for the child's time with each parent, increasing to shared 'week about' care. The Court refused the mother's application to travel with the child outside Australia and New Zealand, except for limited travel to New Zealand. The Court also made orders for communication between the child and the non-caring parent, school enrolment, and information sharing between the parents. The Court made injunctive orders preventing the parents from denigrating each other in front of the child and from discussing the proceedings with the child.

Orders