Mingotti and Papadakis and Anor - [2012] FamCA 339

FAMILY COURT OF AUSTRALIA

MINGOTTI & PAPADAKIS AND ANOR [2012] FamCA 339

FAMILY LAW – CHILDREN –Parental responsibility - Where the presumption of equal shared parental responsibility does not apply and would not be in the child’s best interests – Where the parents have an acrimonious relationship – Living arrangements – Whether the child should live mostly with the mother or mostly with the father - Where each of the parents has a loving relationship with the child - Schooling – Which high school the child should attend –Allegations of physical abuse by the father against the mother’s children – Where the child has consistently expressed a wish to live predominantly with the mother - Credibility – Where the orders sought by the parties are inconsistent with their evidence - Where the child’s half-brother may pose a risk of harm to the child - Duration and extent to which the child’s time with his half-brother should be supervised.

McCall & Clark (2009) FLC 93-405); Mazorski & Albright (2007) 37 Fam LR 518; Leighton & Carey [2010] FamCAFC 94; Briginshaw (1938) 60 CLR 33.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61C, 61DA, 65DAA and 65DAC
Evidence Act 1995 (Cth) s 140.

APPLICANT: MOTHER Ms Mingotti

RESPONDENT FATHER: Mr Papadakis

SECOND RESPONDENT : Mr Nadal

FILE NUMBER: SYC 4566 of 2009

DATE DELIVERED: 11 May 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATES: 9 - 13 January 2012
REPRESENTATION

COUNSEL FOR THE APPLICANT MOTHER: Mr D Eardley

SOLICITOR FOR THE APPLICANT MOTHER Y Law Firm

SOLICITOR FOR THE RESPONDENT FATHER

X Law Firm

COUNSEL FOR THE SECOND RESPONDENT: Mr D Eardley

SOLICITOR FOR THE SECOND RESPONDENT Downey Lawyers Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILD LAWYER Ms T Messner

SOLICITOR FOR THE CHILD Tiyce & Partners Lawyers
Orders
1.The child B MINGOTTI-PAPADAKIS (“the child”) born … January 2000 shall live with the mother.
2.The child shall spend time with the father as follows;
a)     During school term, each alternate weekend commencing from the conclusion of school Thursday until the commencement of school Monday;
b)     On Father’s Day in each year from the conclusion of school Friday until the commencement of school Monday in the event that Father’s Day falls on a day when the child would otherwise be with the mother, and in the event that Mother’s Day falls on a day when the child would otherwise be with the father, then the father’s time with the child on that weekend be and is hereby suspended;
c)     During the second half of each of the school holidays commencing at the conclusion of terms one, two and three with the father collecting the child from the mother’s residence or nominated location at 9:00 am on the middle day (or in the event that there is an even number of days in the school holidays, the day after the mid point of the school holidays) and returning the child to school by 8:45 am…

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: [2012] FamCA 339
Decision Date: 11 May 2012

CaseChat Overview and Summary

This case concerned parenting orders for a child, B Mingotti-Papadakis, born in January 2000. The dispute involved the father and mother regarding the child's living arrangements, time spent with each parent, and parental responsibility. The matter was heard by Loughnan J.

The court was required to determine the primary residence of the child, the specific arrangements for the child's time with each parent, and the allocation of parental responsibility for long-term decisions concerning the child's care, welfare, and development. Further issues included the child's school enrolment, the involvement of a Mr Nadal in the child's life, communication protocols between the parents, and provisions for medical emergencies and school-related matters. The court also considered the parents' conduct towards each other in the child's presence and the child's surname.

Loughnan J made orders that the child shall live with the mother and detailed specific arrangements for the child's time with the father, including alternate weekends during school terms, specific holidays, and birthdays. The mother was granted sole parental responsibility for long-term decisions, with a requirement to consult the father, except for the child's enrolment at C School, which required the father's written consent. The court also imposed restrictions on Mr Nadal residing in the child's home and spending time with the child, requiring supervision and notification to the father of any deterioration in Mr Nadal's mental health or behaviour. The orders also stipulated communication methods, school reporting, medical information access, and prohibited denigration of either parent in the child's presence. The court further ordered that the child be known only by the surname B Mingotti-Papadakis.

Orders

Orders of the court

1. The child B MINGOTTI-PAPADAKIS (“the child”) born … January 2000 shall live with the mother.

2. The child shall spend time with the father as follows;

a) During school term, each alternate weekend commencing from the conclusion of school Thursday until the commencement of school Monday;

b) On Father’s Day in each year from the conclusion of school Friday until the commencement of school Monday in the event that Father’s Day falls on a day when the child would otherwise be with the mother, and in the event that Mother’s Day falls on a day when the child would otherwise be with the father, then the father’s time with the child on that weekend be and is hereby suspended;

c) During the second half of each of the school holidays commencing at the conclusion of terms one, two and three with the father collecting the child from the mother’s residence or nominated location at 9:00 am on the middle day (or in the event that there is an even number of days in the school holidays, the day after the mid point of the school holidays) and returning the child to school by 8:45 am on the first day of the new school term;

d) Subject to e. below, during the Christmas holiday break:

i) from the conclusion of school on the last day of term, until:

· in 2012 and each alternate year thereafter, 5:00 pm on Christmas Eve; and

· in 2013 and each alternate year thereafter, 10:00 am on Boxing day;

and

ii) from noon on the second last Sunday of January until noon on the last Sunday in January;

e) On the birthday of each of the child and the father for a period of six hours as agreed between the parties and in the event the parties do not reach agreement from 1.00 pm on those days in the event they are not school days, and in the event the father’s birthday falls on a school day from the conclusion of school until the commencement of school the next day, or in the event the next day is not a school day until 9:00 am on that day.

f) Unless otherwise provided herein all changeovers which do not occur at school shall occur by the parent who has the care of the child delivering the child to the residence of the other parent at the commencement of the other parents’ time with the child.

3. Subject to Order 4, the mother shall have sole parental responsibility for all decisions concerning the long term care, welfare and development of the child and shall consult the father with respect to any decision required to be made and in the event of disagreement, the mother shall be responsible for the final determination.

4. The mother is restrained from changing the child’s school enrolment from C School without the prior written consent of the father.

5. The parties are hereby restrained from permitting Mr Nadal to reside in any home in which the child resides without the prior written consent of the other parent.

6. Unless the parents agree to the contrary in writing, the mother is restrained from permitting the child to spend time with Mr Nadal except in the home of the mother and supervised by another adult member of the mother’s family.

7. The mother shall immediately advise the father in the event she becomes aware:

a) That Mr Nadal has been admitted to a psychiatric treatment facility;

b) That Mr Nadal is using illicit drugs;

c) That Mr Nadal’s behaviour or presentation has deteriorated.

8. The parties shall ensure the child is punctual in his attendance at school.

9. In the event the child is absent from school for longer than one day, then the parent caring for the child shall obtain a medical certificate from a doctor describing his condition, diagnosis, prognosis and treatment and shall provide that certificate to the other parent and to the child’s school.

10. Unless otherwise agreed, the parties shall communicate with each other regarding matters relating to the child by email, unless in the event of emergency in which case they shall contact the other by mobile telephone on the number provided to the other parent.

11. Unless otherwise provided in these orders or agreed by the parties, school holiday time:

a) Shall commence at 10:00 am;

b) Shall conclude at 6:00 pm;

c) Shall be calculated from the last day of the school term until and including the day immediately before school resumes;

d) Pupil free days are deemed to be school holidays.

12. The parents shall make arrangements at the child’s school for the following:

a) That they both receive a copy of all school reports for the child;

b) That both parents receive notification of all school activities that they may desire to attend;

c) That the parents be informed of parent/teacher nights and the school is informed that it is the parents’ desire to attend such events; and

d) In the event of the child being taken from the school for an emergency, remedial or correctional treatment that the parents be informed as soon as is practicable.

13. In the event of the child suffering a medical condition or requiring medical attention while with either parent ;

a) That parent is to notify the other parent as soon as practicable including full details of the practitioner or medical facility upon which the child attends.

b) The parents shall ensure that all medical practitioners and medical facilities be advised that the parents shall have access to the child’s medical records and the information contained within them upon request.

14. Each parent shall provide to the other the addresses and telephone numbers for contacting the child while the child is in their care and control.

15. Each parent is restrained from denigrating the other parent in the presence or hearing of the child and they shall do all necessary things to ensure that no third party denigrates the other parent in the presence and or hearing of the child.

16. That the parties are restrained from causing or permitting the child to be known by any name, other than B Mingotti-Papadakis.

17. The application of the ICL that each of the parents pay costs in the sum of $9,515.50 plus one half of Dr D’s unpaid fee is adjourned to a date to be fixed.

18. Leave is granted to the parties to restore the proceedings to the list within 28 days of the date of delivery of judgment, or such further time as they might agree, in relation to any agreement about a change to the wording of the orders, an argument that the wording does not reflect these reasons; and or an application in respect of costs, including those referred to in Order 17. above.

19.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Dr D gave evidence as an expert and her credit was not in issue.The Expert EvidenceThe Single Expert39.Dr D is Conjoint Associate Professor at the School of Psychiatry at an Australian university. She also conducts a private practice as a Consultant Forensic, Child and Family Psychiatrist. Dr D holds the following qualifications:Bachelor of Medicine, Bachelor of Surgery, (Australia).Diploma in Psychological Medicine (with Distinction) (NZ).Member of RANZCP Faculty of Child and Adolescent Psychiatry.Fellow of the Royal Australian and New Zealand College of Psychiatrists.Doctor of Philosophy (Australia). Dr D has held senior professional positions in medical and educational roles. Dr D has considerable experience in the area of family and marital relationships and assessments for Family Law Court proceedings. She has many years experience as an expert witness and has presented and published widely. Dr D conducted interviews with the family on 29 June 2010 at her rooms. She interviewed the father, the mother, Ms Nadal and the child. She conducted further interviews on 10 December 2010 with the father, Ms A, her daughter Ms P and the child. On 10 August 2011, Dr D interviewed Mr Nadal for the purposes of conducting a mental health assessment. On that occasion, Mr D attended with Ms Nadal. Dr D reported that in her observation of the child with his maternal family, he was relaxed and chatted happily. It was obvious to Dr D that the child and Ms Nadal have an extremely warm and close relationship. She said there was a lot of good humour and a very easy atmosphere. In her observation of the child with the father, Ms A and Ms P, Dr D said that the child was quiet while his father spoke and did not volunteer any comments or add information. He seemed disengaged from the group and there was little interaction between him and Ms A or Ms P. The child became tearful during his interviews with Dr D, particularly when discussing how he misses his mother and Mr Nadal. It was clear to Dr D that the child wants to live with his mother and was distressed about the current situation. This was the case during both sets of interviews. In relation to which high school the child is to attend, Dr D said that the child clearly expressed a desire to go to C School. She said it is important he attends a school he is interested in attending. Dr D said that there would have to be a good reason to dislocate the child from his social network. If the child were not to attend C School, Dr D said that he is likely to be very angry with his father. Dr D did not think that the child’s wish to attend C School had been contaminated by the mother’s “coaching”. She said the child is too old and too mature to be coached in the same way that a younger child may be. She said the child’s desire to stay with his network of peers is very normal for a child of his age. She said the child might only need one special friend to attend C School with him for the child to feel comfortable with the transition. Dr D did not feel that Ms P’s attendance at H School would have the same impact of making the child’s transition to that school comfortable because he does not have a strong identification with Ms P. Dr D was not sure that it would not merely be more convenient for the father to have the child and Ms P attend the same school and said that the father’s preference seems to be more about what he wants because the choice is between two reasonably good, religious schools.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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SOLICITOR FOR THE APPLICANT MOTHER	Y Law Firm
SOLICITOR FOR THE RESPONDENT FATHER	X Law Firm
COUNSEL FOR THE SECOND RESPONDENT:	Mr D Eardley