Marino and Marino - [2009] FMCAfam 227

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MARINO & MARINO

[2009] FMCAfam 227

FAMILY LAW – Children aged 4 and 2 – final arrangements for care – parties agree presumption of equal shared parental responsibility should apply – father seeks equal time arrangement – mother contends parties’ poor parenting relationship makes such an arrangement impractical – mother asserts father is antisocial and criminally inclined and as such father represents a potentially corrosive influence in children’s lives and poor role model – best interests – considerations of reasonable practicality.

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 65D

Marino & Marino [2007] FMCAfam 517
P & P [2006] FMCAfam 518
Matthews & Kennedy [2007] FMCAfam 26
In the Marriage of Patsalou (1994) 18 Fam LR 426
A v A (1998) FLC 92-800
Bright v Bright (1995) FLC 92-570
Goode & Goode (2006) FLC 92-286

Applicant:

MS MARINO

Respondent:

MR MARINO

File Number:

ADC 2600 of 2007

Judgment of:

Brown FM

Hearing dates:

1 October 2008, 6 February 2009

Date of Last Submission:

6 February 2009

Delivered at:

Adelaide

Delivered on:

19 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr A Jordan

Solicitors for the Applicant:

David Peacock

Counsel for the Respondent:

Ms M Dickson

Solicitors for the Respondent:

Moody Rossi & Co

ORDERS

These are orders are to be read in conjunction with the orders of the court made on 22 May 2008 which remain in full force and effect.

The children of the marriage [J] born in July 2005 and [H] born in January 2007 live with each of their parents as follows:
(a)With the father:
(i)In each alternate week from 8:00am (or the commencement of school or kindergarten) on Monday until 5:00pm the following Thursday;
(ii)In the other week from 8:00am (or the commencement of school or kindergarten) on Wednesday until 5:00pm the following Sunday.
(b)With the mother at all other times.
Upon the child [H] commencing school the children live with each of their parents, during school terms, on a week about basis moving between their parents’ respective homes at the conclusion of school each Friday.
Upon the child [H] commencing school the children live with each of their parents, during school holiday periods, subject to the provisions of the orders of 22 May 2008 dealing with special occasions, for half of each school holiday period, the halves to be agreed between the parties and failing agreement to be the first half with the father in each holiday commencing in a year ending with an even number and the second half in respect of each holiday commencing in a year ending with an odd number.

IT IS NOTED that publication of this judgment under the pseudonym Marino & Marino is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 2600 of 2007

MS MARINO

Applicant

And

MR MARINO

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Marino “the mother” and Mr Marino “the father” are the parents of…

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 Marino and Marino

Details

AGLC: Marino and Marino [2009] FMCAfam 227
Case: [2009] FMCAfam 227
Decision Date: 19 March 2009

CaseChat Overview and Summary

The case of Marino and Marino involved a dispute between the parents regarding the care arrangement of their two children, [J] and [H]. The matter was heard by the Family Court of Australia, which was required to determine the best interests of the children in terms of their living arrangements. The parents had differing views on the appropriate care regime, with the mother advocating for caution due to the children's young ages, while the father argued for a shared care arrangement in line with legislative presumptions. The court had to consider the children's ages, their maturity, the parents' attitudes towards their responsibilities, and the evidence provided by the parties.

The primary legal issue before the court was whether an equal time regime, as mandated by the Family Law Act, should be implemented despite the young ages of the children. The court needed to balance the legislative presumption of equal shared parental responsibility with the practical considerations of the children's well-being and adaptability to a shared care arrangement. Additionally, the court had to assess the credibility and reliability of the evidence provided by both parents regarding their lifestyle, drug use, and the impact of these factors on their ability to care for the children.

In its reasoning, the court found that both parents were capable of providing for the children's emotional needs, although in different ways. The court noted that the children had been adapting to regular changes of carer and that the father had been significantly involved in their care from an early stage. The court concluded that the children's ages alone should not bar the implementation of an equal time regime, provided there were appropriate transitional steps. The court further determined that the mother's concerns about the children's ability to cope with a shared care arrangement were valid but did not outweigh the legislative presumption. Based on these findings, the court ordered a rotating arrangement that would gradually transition to an equal time regime as the children grew older.

The court's final orders specified the living arrangements for the children, detailing a rotating schedule between the parents with an intention to move towards an equal time regime as the children grow older. This arrangement aimed to balance the parents' responsibilities while considering the children's best interests and the legislative framework governing parental responsibilities. The orders also addressed the transition of care arrangements upon the children commencing school, ensuring a structured and fair approach to their upbringing.

Orders

Orders of the court

These are orders are to be read in conjunction with the orders of the court made on 22 May 2008 which remain in full force and effect.

The children of the marriage [J] born in July 2005 and [H] born in January 2007 live with each of their parents as follows:

(a) With the father:

(i) In each alternate week from 8:00am (or the commencement of school or kindergarten) on Monday until 5:00pm the following Thursday;

(ii) In the other week from 8:00am (or the commencement of school or kindergarten) on Wednesday until 5:00pm the following Sunday.

(b) With the mother at all other times.

Upon the child [H] commencing school the children live with each of their parents, during school terms, on a week about basis moving between their parents’ respective homes at the conclusion of school each Friday.

Upon the child [H] commencing school the children live with each of their parents, during school holiday periods, subject to the provisions of the orders of 22 May 2008 dealing with special occasions, for half of each school holiday period, the halves to be agreed between the parties and failing agreement to be the first half with the father in each holiday commencing in a year ending with an even number and the second half in respect of each holiday commencing in a year ending with an odd number.

Background

Background to the litigation

Overall, I consider that both parties are capable of providing for the children’s emotional needs, although perhaps in different ways. I have no doubt that both Mr Marino and Ms Marino love [J] and [H] and are capable of expressing that love appropriately. Certainly, Ms Cavanagh noted nothing untoward in respect of her observations of the children interacting with their parents. g) The children’s maturity, sex, lifestyle and background Issues to do with cultural orientation, lifestyle and background were not raised by the parties in this case. Issues to do with the children’s maturity were. In essence, it is the mother’s position that “one size” does not necessarily fit every family. As such, caution is warranted in applying the provisions of section 65DAA to the case. Essentially, the ages of the children militate against a shared parenting regime. At the interim hearing stage, issues relating to who of the parties had been the “primary carer” of the two children concerned, given their tender years, were much in controversy. With the passage of time, the level of controversy has receded somewhat. The mother concedes that a shared care regime is the likely outcome in this case but the children, particularly [H], are too young to cope with the implementation of such a regime at this stage. The children are young. However, my impression is that they are reasonably robust children. Certainly, up to this stage, they have had to accommodate regular changes of carer. In addition, it is clearly the case that Mr Marino has been significantly involved in the care of both children from the earliest stages. In general terms, Ms Cavanagh does not counsel against the court applying what is legislatively mandated by the presumption of equal shared parental responsibility – an equal time regime – notwithstanding the ages of the children concerned, provided there was some stepping stone before its implementation. Since May of 2008, the children have been spending two overnight periods per week with their father. In these circumstances, I do not consider the children’s ages alone should be a bar to the three/four day rotating arrangement recommended by Ms Cavanagh from February 2009 onwards. For obvious reasons, issues to do with nurture and care, must be relevant to the issue of whether a shared care arrangement is likely to be in a child’s best interests. Simple circumstances of biology may rule out such an option, particularly in respect of babies. However, the legislation concerned does not provide specific guidelines as to what age is appropriate for the implementation of an equal time regime or even a substantial and significant time regime. Rather, the court must bear in mind all the circumstances of the case concerned in its application of what has been described as “the legislative pathway”[17], provided by Part VII of the Family Law Act. [17] See Stuart & Stuart [2008] FMCAfam 177 at paragraph 44 For the reasons provided, I am satisfied that the overall circumstances of this case do not indicate that the ages of the children specifically should militate against the inauguration of an equal time regime. Essentially, I do not think that to impose such a regime would represent an unwarranted “leap into the dark” so far as the best interests of [J] and [H] are concerned. h)AboriginalityThis is not a relevant consideration.i)The attitude that each parent has demonstrated to the responsibilities of being a parent

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In these reasons for judgment, findings are made on the balance of probabilities following my observations of each of the witnesses concerned. In what follows, statements of fact constitute findings of fact.a) Events before separation The father was born in [F], Italy in February 1961. The mother was born in [M], South Australia in October 1980. They married in April 2005, some months prior to [J]’s birth. There is considerable controversy between the parties as to the date on which they commenced their relationship and the circumstances of it. The mother’s case is that she was working in the sex industry from September of 2001 and met the father, through her work, a short time later. At the time, Ms Marino was around twenty years of age. It is her case that she had been using illicit drugs since the age of eighteen. Accordingly, there is no substance to any suggestion that Mr Marino sold her drugs whilst she was under age. It is the father’s case that the mother moved into his home in 2002, as his tenant. Shortly afterwards, they commenced a sexual relationship with one another but did not commence a more committed de facto relationship until some time in 2004. It is the father’s case that the mother was working as a sex worker, whilst she was his tenant but he did not pay her money to have sex with him. It is his case that both he and Ms Marino used marijuana and amphetamines from time to time. He denies the mother’s allegation that he was the source of her supplies of the drug or was indeed a drug trafficker. It is difficult for me to assess the nature of the relationship between the parties in these early years. Although the mother was young at the time, I think it unlikely that she can be described as an “innocent abroad”. In addition, I do not think that it is likely that the father’s lifestyle at this time was not without its sinister aspects. I suspect both parties moved, from time to time, within an unsavoury demi-monde largely unconducive to the proper care of young children. It is the mother’s case that she quickly decided to cease her drug use but the father did not. On the other hand, it is the father’s case that it was his influence and support, which assisted the mother to become abstinent from drugs. The father deposes that both he and Ms Marino mutually decided to “improve” their lifestyle, once they decided to live together. In my view, it is noteworthy that the mother indicates that Mr Marino stopped his cocaine, speed and ecstasy use in April and May of 2002, whilst she stopped taking any sort of illegal drugs in February of 2002.[5] Thereafter, she asserts that Mr Marino regularly smoked marijuana, something which she did not. [5] See mother’s affidavit at paragraph 98-99 It is the father’s position that he has stopped using all “heavy drugs” although he concedes some occasional social marijuana use but denies ever having used the drug or any other illicit drug whilst the children have been in his care.[6][6] See father’s affidavit filed 14 May 2008 at paragraph 30-31