MANCARI & PADOVA - [2019] FCCA 3398

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANCARI & PADOVA

[2019] FCCA 3398

Catchwords:
FAMILY LAW – Parenting – interim parenting – whether time to be supervised –where risks asserted by Mother – where risks denied by Father – where time to date has been supervised – where Father asserts alienation by Mother – where alienation by Mother not established – where Father has indicated intention to alienate Mother – where family violence asserted by both parties against the other.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 60CG, 61DA, 61DB, 65DAA
Evidence Act 1995 (Cth), ss.50, 56

Cases cited:

M & M (1988) 166 CLR 69
Goode & Goode [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
Johnson & Page [2007] FamCA 1235
McCall and Clark [2009] FamCAFC 92
MRR & GR (2010) 240 CLR 461
Marvel & Marvel [2010] FamCAFC 101
Deiter & Deiter [2011] FamCAFC 82
Chapa & Chapa [2013] FamCAFC 52
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36
Bondelmonte & Bondelmonte (2017) 259 CLR 662

Applicant:

MR MANCARI

Respondent:

MS PADOVA

File Number:

PAC 4103 of 2018

Judgment of:

Judge Morley

Hearing date:

21 June 2019

Date of Last Submission:

21 June 2019

Delivered at:

Sydney

Delivered on:

10 December 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr Longworth

Solicitors for the Respondent:	Gordon & Barry Lawyers Pty Ltd
Solicitors for the Independent Children's Lawyer:	Mr Grooby of Legal Aid NSW

ORDERS

PENDING FURTHER ORDERS, THE COURT ORDERS:

That X born in 2012 (‘X’ or ‘the child’) live with his Mother.
That the child spend supervised time with his Father each alternative week on Thursday afternoon between 3:00PM and 6:00PM, or on such other day and for such other time to a maximum of three hours as may be agreed between the parents from time to time.
That all occasions of time between the child and his Father pursuant to order to shall be supervised by B Contact Centre or such other commercial contact supervision agency as may be agreed upon between the parents from time to time, all such supervision to be at the cost of the Father.
That each of the parties is restrained from denigrating the other party or any member of the other party’s family in the presence or hearing of the child.
That each of the parties is restrained from allowing the child to remain in the presence of, or within the child’s hearing of, any other person who is denigrating the other party or any member of the other party’s family.
That each of the parties is restrained from discussing these proceedings or any of the issues raised in these proceedings in the presence or hearing of the child.
That each of the parties is restrained from using any form of physical discipline on X.
That each of the parties is restrained from consuming alcohol at any time whilst X is in that parent’s care to the extent that it would…

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 MANCARI & PADOVA

Details

AGLC: MANCARI & PADOVA [2019] FCCA 3398
Case: [2019] FCCA 3398
Decision Date: 10 December 2019

CaseChat Overview and Summary

In the matter of *Mancari & Padova*, Judge Morley of the Federal Circuit and Family Court of Australia considered an application for interim parenting orders concerning the child, X, born in 2012. The dispute involved allegations of risks asserted by the Mother, which were denied by the Father. The court noted that the child's time with the Father had, to date, been supervised. The Father alleged parental alienation by the Mother, but this was not established. Conversely, the Father had indicated an intention to alienate the Mother. Both parties also asserted family violence against the other.

The court was required to determine the interim living arrangements for the child, the nature and extent of the child's time with the Father, and whether that time should be supervised. Further issues included the need for protective orders regarding the parties' conduct towards each other and the child, and the requirement for both parents to undertake specific programs.

Judge Morley reasoned that given the asserted risks and the history of supervised contact, it was appropriate for the child to live with the Mother. The court ordered that the child spend supervised time with the Father each alternative week on Thursday afternoons, with flexibility for alternative arrangements by agreement, for a maximum of three hours. This supervision was to be conducted by a commercial contact supervision agency at the Father's cost. The court also made extensive orders restraining both parties from denigrating each other or discussing the proceedings in the child's presence, from using physical discipline, and from consuming alcohol to a level that would impair their ability to drive. Specific injunctions were made against the Father, including restrictions on communication with the Mother and child, and proximity to the Mother's residence and the child's school, except for specific school functions. Both parents were also ordered to attend the "Bringing Up Great Kids" course, and the Father was directed to complete an anger management program and a "Men's Behaviour Change" program.

Orders

Orders of the court

PENDING FURTHER ORDERS, THE COURT ORDERS:

That X born in 2012 (‘X’ or ‘the child’) live with his Mother.

That the child spend supervised time with his Father each alternative week on Thursday afternoon between 3:00PM and 6:00PM, or on such other day and for such other time to a maximum of three hours as may be agreed between the parents from time to time.

That all occasions of time between the child and his Father pursuant to order to shall be supervised by B Contact Centre or such other commercial contact supervision agency as may be agreed upon between the parents from time to time, all such supervision to be at the cost of the Father.

That each of the parties is restrained from denigrating the other party or any member of the other party’s family in the presence or hearing of the child.

That each of the parties is restrained from allowing the child to remain in the presence of, or within the child’s hearing of, any other person who is denigrating the other party or any member of the other party’s family.

That each of the parties is restrained from discussing these proceedings or any of the issues raised in these proceedings in the presence or hearing of the child.

That each of the parties is restrained from using any form of physical discipline on X.

That each of the parties is restrained from consuming alcohol at any time whilst X is in that parent’s care to the extent that it would be illegal for that parent to drive a Sedan motor vehicle in New South Wales on a full licence.

That the Father is restrained from:

(a) doing any act to communicate with the mother in any manner other than in relation to making any necessary arrangements relating to his spending time with the child pursuant to these orders;

(b) doing any act to communicate with the child in any manner other than to send the child Birthday, Easter, and Christmas cards and presents on those said occasions;

(c) coming within 100 metres of the mother’s place of residence, the mother’s place of employment or the mother’s place of education;

(d) coming within 100 metres of the child’s school EXCEPT that the Father may attend at the child’s school on occasions when there is a school function involving the child to which parents are invited to attend,

AND this order is an injunction granted under section 68B of the Family Law Act 1975 (Cth) for the personal protection of the mother, Ms Padova, born in 1975, and the child, X born in 2012 from the father, Mr Mancari born in 1972.

10.

That each of the parties is entitled to request and receive information from the child’s school in relation to his educational progress, including copies of school reports and general school newsletters and to request and receive information from any medical practitioner or other healthcare professional providing treatment to the child or in relation to his health care generally.

11.

That the Father shall forthwith do all acts and things and sign all documents necessary to enrol in and complete an anger management program and shall provide to the Independent Child’s Lawyer at the completion of the course a certificate of completion.

12.

That the Father shall forthwith do all acts and things and sign documents necessary to enrol in and complete the “Men’s Behaviour Change” program offered by C Counselling and shall provide to the Independent Child’s Lawyer at the completion of the course a certificate of completion.

13.

That each of the parents forthwith contact the Information and Referral Officer on ... to do all things necessary to attend the course “Bringing Up Great Kids”.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAY J

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Ratio Decidendi

Legal Principle Established

Established by: DAY J

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