FAMILY COURT OF AUSTRALIA
Marchesi & Dougal [2021] FamCA 474
File number(s): SYC 5955 of 2017 Judgment of: HARPER J Date of judgment: 2 July 2021 Catchwords: FAMILY LAW – PARENTING – Whether sole parental responsibility should be allocated to the mother in circumstances where the father has not participated in the proceedings – Whether the children should spend any time with the father in circumstances where there have been allegations of family violence by the father – Whether final orders should be made on an undefended basis. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 60CG, 61DA, 64B, 65AA, 65D, 65DAB Cases cited: Banks & Banks (2015) FLC 93-637
Bant & Clayton (2019) FLC 93-924
Bondelmonte v Bondelmonte (2016) 259 CLR 662
Boyce & Boyce [2015] FamCAFC 60
Champness v Hanson (2009) FLC 93-407
Cox & Pedrana (2013) FLC 93-537
Dundas & Blake (2013) FLC 93-552
Godfrey v Sanders (2007) 208 FLR 287
Goode & Goode (2006) FLC 93-286
Helbig & Rowe and Ors [2016] FamCAFC 117
Jollie & Dysart [2014] FamCAFC 149
Lovett & McGregor (2019) FLC 93-935
M v S (2007) FLC 93-313
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) FLC 93-405
MRRv GR (2010) 240 CLR 461
Robertson & Sento [2009] FamCAFC 49
Tibb & Sheean (2018) 58 Fam LR 351
Number of paragraphs: 87 Date of hearing: 24 June 2021 Place: Sydney Solicitor for the Applicant: No Appearance Solicitor for the Respondent: Mahony Family Lawyers Counsel for the Independent Children's Lawyer: Mr Guterres Solicitor for the Independent Children's Lawyer: Tiyce Lawyers ORDERS
SYC 5955 of 2017 BETWEEN: MR MARCHESI
ApplicantAND: MS DOUGAL
RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
2 JULY 2021
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the children.
2.The children live with the mother.
3.The children spend no time with the father.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marchesi & Dougal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Harper J
These proceedings concern two children X born in 2010 and is presently 11 years old, and Y born in 2015 and is presently five years old (together referred to as “the children”).
The children live with their mother, the Respondent in these proceedings who will be referred to as “the mother”.
The parties commenced a relationship in March 2009. They began cohabitation briefly in late 2010 and began cohabitating on a permanent basis in…
Continue reading Marchesi & Dougal
Sign in free to access the full text
- AGLC
- Marchesi & Dougal [2021] FamCA 474
- Case
- [2021] FamCA 474
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether sole parental responsibility should be allocated to the mother, whether the children should spend any time with the father, and whether final parenting orders should be made on an undefended basis. These determinations were to be made in accordance with the paramount consideration of the best interests of the children, as guided by sections 60CC(2) and (3) of the relevant Act.
Harper J applied the principles outlined in sections 60CC(2) and (3) of the Family Law Act 1975 (Cth), which mandate the court to consider specific factors when determining a child's best interests. The court gave particular attention to the primary considerations: the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from harm, including family violence. The court noted that greater weight is to be given to the protection from harm. In this instance, the court was not persuaded that any order should be made for the children to spend time with the extended paternal family.
The court made final orders allocating sole parental responsibility to the mother, ordering that the children live with the mother, and that the children spend no time with the father.
Orders
Orders of the court
SYC 5955 of 2017
BETWEEN:
MR MARCHESI
Applicant
AND:
MS DOUGAL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
2 JULY 2021
THE COURT ORDERS THAT:
1. The mother have sole parental responsibility for the children.
2. The children live with the mother.
3. The children spend no time with the father.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
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
Ratio Decidendi
Legal Principle Established
The best interests of a child are to be determined by an examination of the considerations set out in ss 60CC(2) and (3) of the Act. Section 60CC(1) provides that the Court “must consider” the matters set out in ss 60CC(2) and (3). The use of the verb “consider” in s 60CC(1) imposes an obligation to give proper, genuine and realistic consideration to the matters in s 60CC(2) and s 60CC(3) of the Act: Lovett & McGregor; (2019) FLC 93-935; [2019] FamCAFC 253 at [72]; Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8 at [43]. Although consideration of each statutory factor in s 60CC is mandatory, express discussion is not: Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 at [48]; Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142 (“Tibb & Sheean”) at [84]. The proposals of the parties; their evidence; the manner in which they have run their case will largely determine what is discussed: Tibb & Sheean at [87]. In accordance with these authorities, I have given consideration to the each of matters in s 60CC(2) and s 60CC(3), but I will primarily discuss those which have been given prominence by the manner in which the mother and the ICL conducted the final hearing.PRIMARY CONSIDERATIONS In order to determine the child's best interests, the Court must first have regard to the "primary considerations" set out in s 60CC(2) of the Act:a)The benefit to the child of having a meaningful relationship with both of the child's parents; and b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In applying the considerations set out in s 60CC(2), the Court is to give greater weight to the consideration in paragraph (b).Section 60CC(2)(a), the benefit to the child of having a meaningful relationship with both of the child’s parents A "meaningful relationship" is one which is "important, significant and valuable to the child": Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520 and McCall v Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92 ("McCall"); A "prospective approach" is the preferred approach to s 60CC(2)(a), requiring the Court to "consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents": McCall at [118]-[119]; Depending on the factual circumstances "the present relationship approach" may be relevant, requiring the Court to examine the evidence "of the nature of the child's relationship at the date of the hearing, to make findings based on that evidence, which finding will be reflected in the orders ultimately made"; however, it is not the preferred approach since s 60CC(3)(b) of the Act requires a Court to explore existing relationships between a child and the child's parents and other persons, and application of the present relationship approach would limit a Court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial: McCall at [118]-[119].