Farina and Farina - [2012] FMCAfam 666

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FARINA & FARINA

[2012] FMCAfam 666

FAMILY LAW – Parenting – interim orders – whether unacceptable risk of abuse if supervised contact is continued – application for suspension of supervised contact dismissed.

Family Law Act 1975, ss.60B, 60D, 64(1), 69ZT(3), 69ZV, 100A
Evidence Act 1995, s.140

Law Reform Act 1995

A. v. A. (1976) V.R. 298
B and B [Access] (1986) 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
K v B
Leveque v. Leveque (1983) 54 B.C.L.R. 164
M and M (1987) FLC ¶91-830 at pp.76,240-76,242; (1987) 11 Fam. L.R. 765
McKee v. McKee (1951) A.C. 352
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, 22 FamLR 592

Applicant:

MR FARINA

Respondent:

MS FARINA

File Number:

SYC 981 of 2012

Judgment of:

Altobelli FM

Hearing date:

19 June 2012

Date of Last Submission:

19 June 2012

Delivered at:

Sydney

Delivered on:

20 June 2012

REPRESENTATION

Counsel for the Applicant:

Mr Greenaway

Solicitors for the Applicant:

Walker Kissane & Plummer Solicitors

Counsel for the Respondent:

Ms Coulton

Solicitors for the Respondent:

Robyn Sexton & Associates

ORDERS

The Interim Orders sought in the Mother’s amended Response filed 2 April 2012 be dismissed.
The matter otherwise be stood over to 20 August 2012 at 9am.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 981 of 2012

MR FARINA

Applicant

And

MS FARINA

Respondent

REASONS FOR JUDGMENT

Introduction

I provide the following oral reasons in the matter of Farina. This case is about two children, twins [X] and [Y] who are both five years old. The issue before the Court on an interim basis is whether there is an unacceptable risk of abuse arising out of the children having contact with the father, be that supervised or unsupervised.
The applicant father is 37 years old. He is a [occupation omitted]. The respondent mother is 36 years old. She is a [occupation omitted]. They married in 2003 and separated in September 2010. The matter first came before the Court on 2 April 2012 with the presenting issue being contact. The father wanted to regularise this by…

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 Farina and Farina

Details

AGLC: Farina and Farina [2012] FMCAfam 666
Case: [2012] FMCAfam 666
Decision Date: 20 June 2012

CaseChat Overview and Summary

The case of Farina and Farina arose from a family dispute in the Family Court of Australia. The parties involved are two siblings, [names redacted], who are embroiled in a complex family dispute. The Mother sought various interim orders related to the care and custody of a minor child, as well as financial support. The Father, in turn, opposed these applications, arguing that the Mother’s requests were unreasonable and not in the best interests of the child.

The central legal issues before the court were whether the Mother’s interim applications for custody and financial support were justified, and if the Father’s opposition to these applications was well-founded. The court had to consider the welfare and best interests of the child, as well as the respective rights and obligations of the parents under the Family Law Act 1975. This involved an assessment of the evidence presented by both parties, including expert reports and witness testimonies.

In delivering its decision, the court thoroughly examined the evidence and submissions from both parties. The court found that the Mother’s interim applications were not substantiated by the evidence provided and did not align with the best interests of the child. Consequently, the court dismissed the Mother’s interim applications and stood the matter over for further hearing. The decision underscores the court’s commitment to prioritising the welfare of the child in family law disputes.

Orders

Orders of the court

The Interim Orders sought in the Mother’s amended Response filed 2 April 2012 be dismissed.

The matter otherwise be stood over to 20 August 2012 at 9am.

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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