Marino and Marino - [2010] FMCAfam 318

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MARINO & MARINO

[2010] FMCAfam 318

FAMILY LAW – Children aged 4 and 3 interim hearing – children have previously lived in equal time arrangement following final orders made in March 209 – since orders made father has been charged with assaulting mother – mother’s evidence is that children are stressed by current arrangements – father denies assault – father disputes children are stressed – best interests – whether reasonably practicable to continue equal time arrangement – necessary to re-fix matter for final hearing and order fresh family report.

Family Law Act 1975, ss.60CC; 65DAA

Applicant:

MS MARINO

Respondent:

MR MARINO

File Number:

ADC 2600 of 2007

Judgment of:

Brown FM

Hearing date:

5 March 2010

Date of Last Submission:

5 March 2010

Delivered at:

Adelaide

Delivered on:

5 March 2010

REPRESENTATION

Counsel for the Applicant:

Ms Lee

Solicitors for the Applicant:

Johnston Withers

Counsel for the Respondent:

Mr Oliveri

Solicitors for the Respondent:

Windevere Bellman

ORDERS

The parties enroll [X] at [omitted] Primary School at [address omitted] so that he can commence primary school in term three of 2010 provided each party contributes one half of all necessary fee and expenses.
Both parties enroll at the first available “Kids R First” program provided it is not necessary for them to attend the same course scheduled in terms of its time.
The parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the children and, at the discretion of the family consultant, observed interaction of the children with any relevant adult person in addition to the parties as the assessor considers appropriate, the psychological ramifications of shared care regime of children and the viability of the parenting responsibility to sustain such a regime, the assessment to be carried out by a person agreed in writing between the parties within 14 days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time and with the costs of such assessment and the report arising from such assessment to be borne equally by the parties with such report to be prepared and released on or before 28 May 2010.
The matter is fixed for final hearing before Federal Magistrate Brown on 5 & 6 August 2010 at 10:00am NOTING 2 days allowed.
That further consideration of this matter is adjourned to 4 June 2010 at 9:30am when it is anticipated the family report will be to hand.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The orders of 22 May 2008 and 19 March 2009 be varied so that the presumption of equal shared parental responsibility is suspended and the children live with the father as follows:
(a)from 15 March 2010 at 8:00am until 5:00pm the following Thursday, 18 March 2010; and
(b)each alternate week…

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: [2010] FMCAfam 318
Decision Date: 5 March 2010

CaseChat Overview and Summary

In the case of Marino and Marino, the Family Court of Australia was called upon to determine various issues pertaining to the care and custody of the parties' children. The court was required to address the educational and care arrangements for the children, as well as the assessment of the parents' capacity to engage in shared care arrangements.

The primary legal issues before the court included the scheduling of the children's school term, the enrolment of the children in a specific childcare program, the necessity of a family assessment to inform the court's decision on parenting orders, and the arrangement of the children's living situation with their father, including the timing and location of handovers.

In delivering its judgment, the court emphasised the importance of the children's welfare and educational continuity. It mandated that the children be enrolled in a primary school and a specific childcare program, with each parent contributing equally to the associated costs. Furthermore, the court ordered a comprehensive family assessment, to be conducted by an agreed or court-appointed assessor, focusing on the psychological impact of shared care and the parents' ability to sustain such an arrangement. The court also outlined specific living arrangements for the children with their father and mandated the use of police or contact centre services for the exchange of children. The final hearing was scheduled to ensure that all issues could be thoroughly examined and resolved.

The court's orders included interim arrangements for the children's schooling and care, mandated the family assessment, and detailed the living arrangements with the father, including handover procedures. The matter was adjourned to allow for the completion of the family report, with the final hearing set for August 2010.

Orders

Orders of the court

The parties enroll [X] at [omitted] Primary School at [address omitted] so that he can commence primary school in term three of 2010 provided each party contributes one half of all necessary fee and expenses.

Both parties enroll at the first available “Kids R First” program provided it is not necessary for them to attend the same course scheduled in terms of its time.

The parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the children and, at the discretion of the family consultant, observed interaction of the children with any relevant adult person in addition to the parties as the assessor considers appropriate, the psychological ramifications of shared care regime of children and the viability of the parenting responsibility to sustain such a regime, the assessment to be carried out by a person agreed in writing between the parties within 14 days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time and with the costs of such assessment and the report arising from such assessment to be borne equally by the parties with such report to be prepared and released on or before 28 May 2010.

The matter is fixed for final hearing before Federal Magistrate Brown on 5 & 6 August 2010 at 10:00am NOTING 2 days allowed.

That further consideration of this matter is adjourned to 4 June 2010 at 9:30am when it is anticipated the family report will be to hand.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The orders of 22 May 2008 and 19 March 2009 be varied so that the presumption of equal shared parental responsibility is suspended and the children live with the father as follows:

(a) from 15 March 2010 at 8:00am until 5:00pm the following Thursday, 18 March 2010; and

(b) each alternate week thereafter from 8:00am Monday until 5:00pm Thursday.

NOTING the arrangements for the children to live with their father on the current weekend will continue with the children to be returned to their mother’s care at the normal scheduled time.

The parties exchange the children at the beginning of each period of time at the [P] Police Station or if the parties are accepted into the [H] Children’s Contact Centre provided the Centre is open and available at any of the relevant times concerned.

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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