Minchini and Stacey - [2012] FamCA 738

FAMILY COURT OF AUSTRALIA

MINCHINI & STACEY

[2012] FamCA 738

FAMILY LAW – CHILDREN – Presumption of equal shared parental responsibility – Where parties are unable to communicate – Where the mother is the child’s primary attachment figure – Where the mother raised concern over the father’s capacity – Assessment of parenting capacity – Where allegations of family violence – Young child - Nature of child’s relationship with the father – Where the child’s long term interests require time spent with father – Where Court is satisfied equal shared parental responsibility is appropriate – Where family violence not established - All prior orders discharged and transitional regime of increased unsupervised time ordered.

Family Law Act 1975 (Cth) - Part VII, s 60B, s 60CA, s 60CC, s 60CC(2)(a),(b), s 60CC(3), s 60CC(4), s 60 (CG), s61B, s 61C(1) s 61DA(2), (4), s 64B, s65AA, s 65DAA(1)(a), s 65DAA (2)(c), s 65DAA(3), s 65DAA(4), s 65DAA(5)
Evidence Act 1995 (Cth) s 140

Goode & Goode (2006) FLC 93-286
Jones & Dunkel (1959) 101 CLR 298

APPLICANT:

Mr Minchini

RESPONDENT:

Ms Stacey

FILE NUMBER:

NCC

226

2011

DATE DELIVERED:

30 May 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

15-17 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bates

SOLICITOR FOR THE APPLICANT:

Braye Craggs Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Hamilton

SOLICITOR FOR THE RESPONDENT:

Thomas Mitchell Solicitors

Orders

That all prior orders made in relation to the child, B born … November 2009 (“the child”) are discharged.
By Consent, that Ms Stacey (“the mother”) have sole parental responsibility in relation to where the child shall attend school.
Subject to Order 2 above, that the mother and Mr Minchini (“the father”) have equal shared parental responsibility for the child.
By Consent, that the child live with the mother.
That the child spend time with the father as follows:
a.until the child turns three years each Saturday from 10.00 am until 4.00 pm, in relation to which changeover for so long as the parties agree shall take place by the mother delivering the child to the father at his home and the father returning the child to the mother at her home unless a party requires that changeover take place at Contact Centre R;
b.thereafter and until the child turns four years, each weekend from 10.00 am Saturday until 5.00 pm Sunday in relation to which for so long as the parties agree shall take place by the mother delivering the child to the father at his home and the father returning the child to the mother at her home unless a party requires that changeover take place at McDonalds at Suburb K;
c.thereafter, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday until the end of Term 1 Kindergarten (2015) in relation to which for so long as the parties agree shall take place by the mother delivering the child to the father at his home and the father returning the child to…

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 Minchini and Stacey

Details

AGLC: Minchini and Stacey [2012] FamCA 738
Case: [2012] FamCA 738
Decision Date

CaseChat Overview and Summary

This case concerned parenting orders for a young child, B, born in November 2009, whose parents separated when he was approximately nine months old. The child had continued to reside with his mother, Ms Stacey, who was the primary carer and had raised concerns about the father's, Mr Minchini's, parenting capacity. The mother alleged family violence, stating the father was physically violent and abusive towards her, and expressed fear for the child's safety. The father denied the allegations of violence, attributing the mother's claims to manipulation. The proceedings were heard in the Family Court of Australia by Ryan J.

The court was required to determine several key issues, including whether the mother should have sole parental responsibility or if equal shared parental responsibility was appropriate, the continuation of supervised time, the commencement of overnight stays, the venue for changeovers, and the configuration of future time arrangements. A further issue was whether the child's surname should be changed to include the mother's surname. The court was also tasked with assessing the parenting capacity of both parties and considering the impact of any alleged family violence on the child's best interests.

Crucially, immediately prior to the delivery of oral reasons, the parties indicated a significant improvement in their ability to co-parent, having engaged in discussions and adopted a forward-looking approach. This change in circumstances led the court to reconsider the necessity of detailing all factual disputes. The court applied the principles of the *Family Law Act 1975* (Cth), including the best interests of the child as the paramount consideration under section 60B and the presumption of equal shared parental responsibility under section 61DA. Findings of fact were determined on the balance of probabilities, pursuant to section 140 of the *Evidence Act 1995* (Cth).

By consent, the court ordered that all prior parenting orders be discharged. The mother was granted sole parental responsibility regarding the child's school attendance. Subject to this, the parties were ordered to have equal shared parental responsibility for the child, with the child to live with the mother. A detailed transitional regime for the child spending time with the father was established, commencing with supervised time and progressively increasing to unsupervised overnight and alternate weekend time, with specific provisions for holidays and special occasions. The court also ordered that the child be known as B Stacey-Minchini.

Orders