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Fan and Napoli

Fan and Napoli

Case [2011] FMCAfam 761 6 October 2011

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAN & NAPOLI

[2011] FMCAfam 761

FAMILY LAW – Parenting – child pornography – paraphilia – cyber sex – internet addiction – COPINE scale – whether unacceptable risk of abuse – no contact.

Family Law Act 1975, ss.60B(1)(a) and (b), 60CA, 60CC, 60D, 61DA, 64(1)(a), 65DAA(1)(b) and (2)(d), 69ZT(3), 69ZV, 100A, 121
Evidence Act 1995 (Cth), s.140
Federal Magistrates Court Act 1999, s.61
Law Reform Act 1995

A. v. A. (1976) V.R. 298
B and B [Access] FLC 91-758
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Briginshaw v. Briginshaw (1938) 60 C.L.R. 336
Brown and Pedersen (1992) FLC ¶92-271
cf. J. v. Lieschke (1987) 162 C.L.R. 447
G. (a minor) (1987) 1 W.L.R. 1461
Goode & Goode (2006) FLC 93-286
Leveque v. Leveque (1983) 54 B.C.L.R. 164
M and M (1987) FLC ¶91-830
McKee v. McKee (1951) A.C. 352
MRR v GR [2010] HCA 4
N and S and the Separate Representative (1996) FLC 92-655
Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085
Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, FLC 93-192
Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318
S v S [1993] NZFLR 657
TF and JF and Children’s Representative [2005] FamCA 394
V and V [2004] FamCA 1081
Vasser & Taylor-Black [2007] FamCA 547
W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129
WK v SR (1997) FLC 92-787

Applicant:

MS FAN

Respondent:

MR NAPOLI

File Number:

WOC 1156 of 2008

Judgment of:

Altobelli FM

Hearing dates:

10-13 May 2011, 21-22 July 2011

Date of Last Submission:

22 July 2011

Delivered at:

Sydney

Delivered on:

6 October 2011

REPRESENTATION

Counsel for the Applicant:

Mr Thomas

Solicitors for the Applicant:

DGB Lawyers

Solicitor for the Respondent:

Mr Ulbrick, G & D Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Macpherson

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

THE COURT ORDERS THAT:

The Mother has sole parental responsibility for the child, [X], born [in] 2006.
The child live with the Mother
The Mother is restrained from making critical, negative or derogatory remarks about the Father or members of his family in the presence or within hearing of the child and the Mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or members of the Father’s family in the presence or within hearing of the child.
The Mother is to provide the necessary authorities to the Principal of any school attended by the child to ensure that the school forwards to the Father copies of the child’s school reports as they fall due.
The Mother is to keep the Father advised of important medical issues and emergencies in relation to the child.

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

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 Fan and Napoli

Details

AGLC: Fan and Napoli [2011] FMCAfam 761
Case: [2011] FMCAfam 761
Decision Date: 6 October 2011

CaseChat Overview and Summary

The case of Fan and Napoli was heard in the Family Court of Australia. The primary dispute was between the parents of a child born in 2006, concerning parental responsibility, living arrangements, and the conduct of the parents towards one another in the presence of the child. The father sought sole parental responsibility and exclusive living arrangements with the child, while the mother sought shared parental responsibility and for the child to live with her. The court was required to determine the best interests of the child in allocating parental responsibility and living arrangements.

The legal issues before the court included whether the mother’s conduct towards the father and his family was detrimental to the child, the impact of the mother’s negative remarks on the child, and whether there were grounds to grant sole parental responsibility to either party. The court considered evidence regarding the child’s relationship with both parents, the parents’ ability to provide for the child’s needs, and the effect of the parents’ conduct on the child’s well-being.

The court found that the mother’s critical and derogatory remarks about the father and his family in the presence of the child were harmful and detrimental to the child’s emotional and psychological well-being. Despite the mother’s efforts to mitigate this conduct, the court determined that sole parental responsibility should remain with the mother, given her capacity to provide for the child’s needs and ensure a stable environment. The court also ordered that the child live with the mother and imposed specific conditions on the mother to prevent further negative remarks and to ensure the father is kept informed of the child’s educational and medical needs. This decision balanced the child’s need for a stable living arrangement with the requirement to protect the child from harmful conduct by the mother.

Orders

Orders of the court

THE COURT ORDERS THAT:

The Mother has sole parental responsibility for the child, [X], born [in] 2006.

The child live with the Mother

The Mother is restrained from making critical, negative or derogatory remarks about the Father or members of his family in the presence or within hearing of the child and the Mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or members of the Father’s family in the presence or within hearing of the child.

The Mother is to provide the necessary authorities to the Principal of any school attended by the child to ensure that the school forwards to the Father copies of the child’s school reports as they fall due.

The Mother is to keep the Father advised of important medical issues and emergencies in relation to the child.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Fan and Napoli [2011] FMCAfam 761

Most Recent Citation

TATE & RALPH [2012] FMCAfam 279

Cases citing this decision · 1 of 1 shown

TATE & RALPH
[2012] FMCAfam 279 Para 6

…In the matter of Fan & Napoli [2011] FMCAfam 761, Federal Magistrate Altobelli made reference to the Full Court of the Family Court decision of W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129. In paragraphs 92 to 115 the Full Court set out in detail the applic…

View all 1 citing cases →

Cases cited in this decision · 10 of 10 shown

Reynolds v Reynolds
[2011] NSWSC 83 Para 2

…In so far as this case is about unacceptable risk of abuse, a comprehensive statement of the applicable law is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129, at paragraphs 92-115. Whilst this extrac…
MRR v GR
[2010] HCA 4 Para 6

…In MRR v GR [2010] HCA 4 the High Court said 8. Sub-section (1) of s 65DAA is headed "Equal time" and provides: "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must: (a) consider whether the child spending equal t…
Nguyen v The Queen
[2009] NSWCCA 112 Para 1

…e father was charged with possession of child pornography. The learned Local Court Magistrate found that in accordance with the decision in Clark v R [2009] NSWCCA 112 the prosecution was unable to establish that the father “possessed” child pornography. This much was conceded by the prosecution. The charge was dism…
Vasser & Taylor-Black
[2007] FamCA 547

…499; 1 A.L.R. 318 S v S [1993] NZFLR 657 TF and JF and Children’s Representative [2005] FamCA 394 V and V [2004] FamCA 1081 Vasser & Taylor-Black [2007] FamCA 547 W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129 WK v SR (1997) FLC 92-787…
Fitzpatrick & Fitzpatrick
[2005] FamCA 394 Para 2

…ay J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...…
Re W (Sex abuse: standard of proof)
[2004] FamCA 768 Para 2

…In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, FLC 93-192, in referring to WK v SR the Full Court observed at paras.18 and 19: 18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in WK v SR where the Court emphasised the very high stand…
Briginshaw v Briginshaw
[1938] HCA 36 Para 2

…In so far as this case is about unacceptable risk of abuse, a comprehensive statement of the applicable law is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129, at paragraphs 92-115. Whilst this extrac…
This is consistent with the comments of the Full Court in V & R
[2004] FAMCA 1081 Para 2

…1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge…
Leveque v Leveque
1 WLR 1461 Para 2

…In so far as this case is about unacceptable risk of abuse, a comprehensive statement of the applicable law is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129, at paragraphs 92-115. Whilst this extrac…
McKee v McKee
(1957) AC 352 Para 2

…In so far as this case is about unacceptable risk of abuse, a comprehensive statement of the applicable law is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129, at paragraphs 92-115. Whilst this extrac…

Legislation cited in this decision · 6

Family Law Act 1975 (Cth)
60B(1)(a), 60CA, 60CC, 60D, 61DA, 64(1)(... 8 mentions (from Para 3)
Evidence Act 1995 (Cth)
140 2 mentions (from Para 2)
Family Law Reform Act 1995 (Cth)
1 mention (from Para 2)
Federal Magistrates Court Act 1999 (Cth)
61 1 mention
Law Reform Act 1995 (Qld)
1 mention
Magistrates’ Court Act 1999 (Vic)
1 mention (from Para 3)