Manellis & Andreou - [2022] FedCFamC2F 32

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Manellis & Andreou [2022] FedCFamC2F 32

File number(s): PAC 2845 of 2021

Judgment of: JUDGE MURDOCH

Date of judgment: 4 February 2022

Catchwords: FAMILY LAW – Interim parenting – Each party seeking that the children live with them and spend supervised time with the non-resident parent – where interim orders currently in place for the Father to spend unsupervised time with the children – where the Mother is not facilitating time pursuant to the interim Orders made – where each party alleges the other has perpetrated family violence – where the children are at risk of being exposed to conflict – where the children are at risk of being involved in the proceedings – where each party alleges the other has mental health difficulties – where the best interests of the children are met by the children living with the Father on an interim basis – where the Mother’s time with the children should be supervised

Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA

Cases cited:
Dieter & Dieter (2011) FamCAFC 82

Eaby v Speelman (2015) FLC 93-654

Goode and Goode [2006] FamCA 1346

In the Marriage of Burton (1978) 24 ALR 378

In the Marriage of Raby (1976) 12 ALR 669

Marvel & Marvel (No 2) [2010] FamCAFC 101

M v M (1988) 166 CLR 69

Salah and Salah [2016] FamCAFC 100

SS & AH [2010] FamCAFC 13

Division: Division 2 Family Law

Number of paragraphs: 159

Date of hearing: 13 December 2021

Place: Parramatta

Counsel for the Applicant: Mr Dura

Solicitor for the Applicant: McAuley Hawach Lawyers

The Respondent: In person
ORDERS

PAC 2845 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MANELLIS

Applicant

AND:
MS ANDREOU

Respondent

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

4 FEBRUARY 2022

THE COURT ORDERS THAT, PENDING FURTHER ORDER:
1.All prior parenting Orders with respect to the children X born in 2014; Y born in 2012 and Z born in 2017 (“the children”) are discharged.
2.The Father shall have sole responsibility for making decisions with respect to the children.
3.The children live with the Father.
4.Pursuant to Order 3, the Father is at liberty to collect or arrange a nominee to collect each of the children from their respective schools and/or the Mother as and from the time of the making of these Orders.
5.Forthwith upon the Father or his nominee collecting each of the children the Father’s legal representative is to notify the Court by email at Associate.JudgeMurdoch@fcfcoa.gov.au.
6.In the event the children are not returned to the Father’s care by 4:00 pm today, pursuant to section 67U of the Family Law Act 1975 (Cth) a recovery order is to issue directed to the Marshal of the Federal Circuit Court and Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all states and Territories of Australia requiring them to find and recover the children X…

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

AGLC: Manellis & Andreou [2022] FedCFamC2F 32
Case: [2022] FedCFamC2F 32
Decision Date

CaseChat Overview and Summary

This matter relates to interim parenting arrangements for three children. The Court considered the competing allegations of the parties, particularly those of family violence and mental health issues. The Court found that the best interests of the children are met by the children living with the Father. The Court found that the children are at risk of harm in the Mother's care and that it is in their best interests to have their time with the Mother supervised. The Court also made orders that the children attend post-separation parenting programs and that the parties be restrained from denigrating the other party or discussing these proceedings in the presence of the children. The Court made a Recovery Order in the event that the children are not returned to the Father by a specified time.

Orders