Garzelli and Lewis (No. 3) - [2014] FamCA 742

FAMILY COURT OF AUSTRALIA

GARZELLI & LEWIS (NO. 3)

[2014] FamCA 742

FAMILY LAW – CHILDREN – Concerns expressed by three experts about the wife’s parental capacity and the risk of the parties’ child becoming parentified. Expert’s view is to minimise wife’s time. Opinion accepted by the Court.

FAMILY LAW – PROPERTY – Self-represented litigant seeks property settlement and spousal maintenance but produces no evidence to support orders. Husband presents plausible financial evidence which is accepted by the Court. Husband offers to pay spousal maintenance for one year which is the only evidence to support any order. Order made.

Family Law Act 1975 (Cth)

Chappell and Chappell [2008] FamCAFC 143
Hardie & Capris [2010] FamCA 1046
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Garzelli

RESPONDENT:

Ms Lewis

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

3869

2013

DATE DELIVERED:

9 September 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

18, 19, 20, 21, 22, 26 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Smallwood

SOLICITOR FOR THE APPLICANT:

Wilmoth Field Warne

THE RESPONDENT:	In Person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Treyvaud

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Schetzer Constantino

Orders

That all extant parenting orders are discharged.
That paragraph 1 of the orders of the Federal Circuit Court made on 17 May 2013 is discharged.
That if the Australian Federal Police have not removed the name N (“the child”) born … 2009 from the Airport Watch List at all points of international departure from the Commonwealth of Australia (as provided by paragraph 2 of the orders made on 17 May 2013), the child’s name be now removed.
That the husband have sole parental responsibility for the child born … 2009 but for that purpose, the husband ensure the wife is kept abreast of all major issues about the child and in particular:
(a) advise the wife of any medical treatment for the child;
(b)authorise and direct the school at which the child attends to provide all school reports, newsletters, photographs and invitations usually directed to parents to be provided to the wife.
That until the start of February 2015 (or the first date thereafter when the existing cycle of contact ceases) the child live with her parents in the following fortnightly cycle:
(a)In the first week, with the husband from the commencement of school on the Tuesday until the commencement of school on the following Friday and with the wife from the commencement of school on the Friday until the commencement of school on the following Thursday; and
(b)In the second week, with the husband from the commencement of school on the Thursday until the commencement of school on the following Monday and with the wife from the commencement of school on the Monday until the commencement of school on the following Tuesday.
From the start of the month of February 2015 but taking into account the cycle just referred to, the overnight period with the wife and the child referred to…

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: [2014] FamCA 742
Decision Date: 9 September 2014

CaseChat Overview and Summary

This matter concerned parenting and property settlement proceedings before Cronin J. The dispute involved concerns raised by three experts regarding the wife's parental capacity and the risk of the parties' child becoming parentified, with expert opinion favouring minimising the wife's time with the child. The wife, a self-represented litigant, sought property settlement and spousal maintenance but failed to provide supporting evidence. In contrast, the husband presented plausible financial evidence which the court accepted.

The court was required to determine the appropriate parenting orders for the child, considering the expert evidence on the wife's capacity and the risk of parentification. Additionally, the court had to consider the wife's claim for property settlement and spousal maintenance, in light of the lack of evidence presented by her and the financial evidence provided by the husband.

Cronin J accepted the expert opinion that the wife's time with the child should be minimised, leading to orders discharging extant parenting orders and granting the husband sole parental responsibility. The husband was directed to keep the wife informed of major issues concerning the child, including medical treatment and school matters. The court also made specific orders regarding the child's living arrangements with each parent, detailing a fortnightly cycle that would progressively increase the child's time with the husband, with specific provisions for school holidays and Christmas periods. The court further ordered that the child's passports be released into the husband's custody and restrained the wife from obtaining or renewing the child's passport for a specific country without the husband's consent. Regarding property and spousal maintenance, the court made orders for the husband to pay the wife $2000 per calendar month for twelve months, this being the only evidence supporting such an order. The Independent Children's Lawyer was discharged.

Orders

Orders of the court

That all extant parenting orders are discharged.

That paragraph 1 of the orders of the Federal Circuit Court made on 17 May 2013 is discharged.

That if the Australian Federal Police have not removed the name N (“the child”) born … 2009 from the Airport Watch List at all points of international departure from the Commonwealth of Australia (as provided by paragraph 2 of the orders made on 17 May 2013), the child’s name be now removed.

That the husband have sole parental responsibility for the child born … 2009 but for that purpose, the husband ensure the wife is kept abreast of all major issues about the child and in particular:

(a) advise the wife of any medical treatment for the child;

(b) authorise and direct the school at which the child attends to provide all school reports, newsletters, photographs and invitations usually directed to parents to be provided to the wife.

That until the start of February 2015 (or the first date thereafter when the existing cycle of contact ceases) the child live with her parents in the following fortnightly cycle:

(a) In the first week, with the husband from the commencement of school on the Tuesday until the commencement of school on the following Friday and with the wife from the commencement of school on the Friday until the commencement of school on the following Thursday; and

(b) In the second week, with the husband from the commencement of school on the Thursday until the commencement of school on the following Monday and with the wife from the commencement of school on the Monday until the commencement of school on the following Tuesday.

From the start of the month of February 2015 but taking into account the cycle just referred to, the overnight period with the wife and the child referred to in paragraph 5(b) shall cease and the child shall remain with the husband for that particular period.

From the start of the month of April 2015, the overnight period that the child spends with the wife on the Wednesday of the second week of the fortnightly cycle as referred to in paragraph 5(a) shall cease and the child shall remain with the husband for that period.

For the avoidance of doubt, the cycle in paragraph 6 means that the child spends eight consecutive nights with the husband and six consecutive nights with the wife and the cycle in paragraph 7 means that the child spends nine consecutive nights with the husband and five consecutive nights with the wife.

That during school term and long summer holiday periods, paragraphs 5, 6, 7 and 8 of these orders are suspended and the provisions of paragraph 10, 11 and 12 shall apply.

10.

That the child spend holiday time with each parent for one half of the school term holidays at times to be agreed and failing agreement with the wife for the first half.

11.

That the child spend time with her parents over the long summer holidays during one half each at times to be agreed and in default of agreement, for the first half with the wife in the holidays that commence in December 2014 and for a similar period in each alternate year thereafter and during the second half for the long summer holidays that commence in December 2015 and for a similar period in each alternate year thereafter.

12.

That the child spend the discrete Christmas period between her parents as follows:

(a) with the husband in 2014 from 2.30pm on Christmas Day until 5.00pm on Boxing Day and for the same period in each alternate year thereafter;

(b) with the husband in 2015 from 4.00pm on 24 December 2015 until 2.30pm on Christmas Day and for the same period in each alternate year thereafter;

(c) with the wife in 2014 from 4.00pm on 24 December 2014 until 2.30pm on Christmas Day and for the same period in each alternate year thereafter; and

(d) with the wife in 2015 from 2.30pm on Christmas Day until 5.00pm on 26 December 2015 and for the same period in each alternate year thereafter.

13.

That all changeovers of the child between the parents occur at the child’s school but if that is not possible because of schooling, then the parent who is commencing time shall collect the child from the other parent’s residence.

14.

That upon the completion of the holiday periods, the provisions of paragraphs 5-8 shall resume as if they had not been suspended.

15.

That the child shall spend time with the husband on the husband’s birthday and if it is not a period of his time under these orders then he shall have from 10.00am to 2.00pm on a non-school day and from 5.00pm to 7.00pm on a school day.

16.

That the child shall spend time with the wife on the wife’s birthday and if it is not a period of her time under these orders then she shall have from 10.00am to 2.00pm on a non-school day and from 5.00pm to 7.00pm on a school day.

17.

That the child shall spend time with the husband on Father’s Day and if it is not a day that she would normally be spending with him then from 6.00pm on the Saturday until 6.00pm on Father’s Day.

18.

That the child shall spend time with the wife on Mother’s Day and if it is not a day that she would normally be spending with her then from 6.00pm on the Saturday until 6.00pm on Mother’s Day.

19.

That if the husband is travelling internationally, he shall give the wife 45 days notice prior to the commencement of the travel with a full itinerary (noting that any such travel must be within the terms of these orders unless the parties otherwise agree).

20.

On Tuesday of each week (unless the parties agree otherwise) the child shall communicate with the parent in whose care she is not at that time by Skype or by telephone.

21.

Without the consent of the husband, the wife be restrained from obtaining a passport or renewing a passport for the child from and for Country I.

22.

For the purposes of the giving effect to paragraph 21 the husband is at liberty to provide a copy of this order to the relevant officials at the Embassy of Country I in Australia.

23.

That the passports of the child be forthwith released into the custody of the husband who shall thereafter retain them.

24.

That the Independent Children’s Lawyer is forthwith discharged.

25.

That for a period of twelve (12) months from the date of these orders, the husband pay the wife $2000 per calendar month, the first of such payments to be made on the day, one month after the last payment was made by the husband under the parties’ existing arrangements.

26.

That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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.

IT IS CERTIFIED:

27.

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

28.

That the application of the husband and the response of the wife filed 27 June 2014 are otherwise dismissed.

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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