FAMILY COURT OF AUSTRALIA
Morino & Arling (No. 2) [2021] FamCA 261
File number(s): ADC 5318 of 2020 Judgment of: BERMAN J Date of judgment: 11 May 2021 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests of a child – Interim arrangements – Where the father has had three supervised visits with the children since separation – Where the parties agree the father should spend regular unsupervised time with the children – Where the mother opposes overnight time – Where the supervisor’s report indicates time spending has been without issue – Where there needs to be a transition to an increase in time spending – Orders. Legislation: Family Law Act 1975 (Cth) s 60CC Number of paragraphs: 62 Date of hearing: 28 April 2021 Place: Adelaide Counsel for the Applicant: Ms Dickson QC Solicitor for the Applicant: Howe Jenkin Counsel for the Respondent: Ms Miller Solicitor for the Respondent: Norman Waterhouse Lawyers ORDERS
ADC 5318 of 2020 BETWEEN: MR MORINO
ApplicantAND: MS ARLING
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
11 MAY 2021
IT IS ORDERED UNTIL FURTHER ORDER:
1.That X born … 2013 and Y born … 2018 (“the children”) live with the mother.
2.That the children spend time with the father as follows:
(a)Until 4 June 2021 from the conclusion of school and Early Learning Centre (“ELC”) to 5.45 pm on each Tuesday and Friday with the father to return the children to the G School after school care program;
(b)Until 4 June 2021 each Saturday from 9.00 am until 12 noon with handover to occur at H Park, Suburb K between the father and Ms L or such other person as may be nominated by the mother;
(c)From the conclusion of school and ELC on Friday (or 9.00 am if a non-school day) until 4.00 pm on Saturday commencing 4 June 2021;
(d)From the conclusion of school and ELC on Wednesday (or 3.00 pm if a non-school day) until the commencement of school and ELC on the following Thursday (or 9.00 am if a non-school day) commencing 14 July 2021; PROVIDED THAT when handover does not occur to or from school and ELC then it shall take place at H Park, Suburb K between the father and Ms L or such other person as the mother may nominate;
(e)From the conclusion of school and ELC to 6.00 pm on 18 May 2021;
(f)From 9.00 am to 6.00 pm on Father’s Day.
3.That the party with the care of the children is to inform the other of any serious illness or injury suffered by either of the children and of any medical or dental treatment required by the children while the children are in their care as soon as reasonably practicable.
4.That the parties be permitted to liaise directly with the children’s school and ELC in order to receive notices, reports, newsletters and other information or documentation relating to the children (at their own expense).
Continue reading Morino and Arling (No. 2)
Sign in free to access the full text
- AGLC
- Morino and Arling (No. 2) [2021] FamCA 261
- Case
- [2021] FamCA 261
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate interim orders for the children's living arrangements and time spent with each parent, with the paramount consideration being the best interests of the children. Specifically, the court had to balance the father's desire to re-establish a meaningful relationship with the children, including participation in their activities, against the mother's concerns about the children being overwhelmed by an increase in time, particularly overnight stays. The court also had to consider allegations of family violence made against the father and the mother's conduct, which could potentially lead to parental alienation.
Berman J reasoned that the primary consideration was to promote a meaningful relationship between the children and their father, provided it was safe to do so. The court was satisfied that the children did not exhibit fear or anxiety towards the father, despite a significant period of absence, and that their reunion under supervision was positive. The court acknowledged the mother's concerns, noting that her anxiety needed to be recognised to facilitate her support of the children's time with the father, which would ultimately benefit the children. The court also recognised the merit in the father's request for time that would allow him to engage in the children's extracurricular activities. The court noted that both parties had moved towards agreeing on unsupervised time, reflecting a positive development.
The court made orders until further order, stipulating that the children would live with the mother. The father was granted progressively increasing periods of unsupervised time with the children, commencing with supervised afternoon and Saturday morning visits, transitioning to weekend stays, and then to mid-week overnight stays. The orders also included provisions for communication regarding the children's health and for both parents to attend school and extracurricular events. The court noted that final orders were listed for a later hearing, with a family report to be prepared in the interim.
Orders
Orders of the court
IT IS ORDERED UNTIL FURTHER ORDER:
1. That X born … 2013 and Y born … 2018 (“the children”) live with the mother.
2. That the children spend time with the father as follows:
(a) Until 4 June 2021 from the conclusion of school and Early Learning Centre (“ELC”) to 5.45 pm on each Tuesday and Friday with the father to return the children to the G School after school care program;
(b) Until 4 June 2021 each Saturday from 9.00 am until 12 noon with handover to occur at H Park, Suburb K between the father and Ms L or such other person as may be nominated by the mother;
(c) From the conclusion of school and ELC on Friday (or 9.00 am if a non-school day) until 4.00 pm on Saturday commencing 4 June 2021;
(d) From the conclusion of school and ELC on Wednesday (or 3.00 pm if a non-school day) until the commencement of school and ELC on the following Thursday (or 9.00 am if a non-school day) commencing 14 July 2021; PROVIDED THAT when handover does not occur to or from school and ELC then it shall take place at H Park, Suburb K between the father and Ms L or such other person as the mother may nominate;
(e) From the conclusion of school and ELC to 6.00 pm on 18 May 2021;
(f) From 9.00 am to 6.00 pm on Father’s Day.
3. That the party with the care of the children is to inform the other of any serious illness or injury suffered by either of the children and of any medical or dental treatment required by the children while the children are in their care as soon as reasonably practicable.
4. That the parties be permitted to liaise directly with the children’s school and ELC in order to receive notices, reports, newsletters and other information or documentation relating to the children (at their own expense).
5. That the parties are permitted to attend parent/teacher interviews (but not at the same time), and other school, sporting and extracurricular activities and events to which parents are ordinarily invited to attend.
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 Morino & Arling has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Mr B did not observe any behaviour on the part of X and to a lesser extent Y, consistent with fear or anxiety at seeing the father, particularly after such a long period.PARENTING CONSIDERATIONS The mother has given careful thought to the recorded observations of Mr B and as a consequence proposes limited unsupervised time with the father. The mother remains concerned that the orders now sought by the father may well overwhelm the children, particularly as his proposal contains two overnight periods in each week. For his part, the father considers that he had a close relationship with the children prior to separation and that in the absence of any reason to the contrary, the children should resume their time with him in a manner that promotes a meaningful relationship and importantly, allows the father to participate in their curricular and extracurricular activities. The primary consideration is to promote a meaningful relationship between a child and his or her parents provided it is undertaken in circumstances where it is safe to do so. If the child is at risk of physical or psychological harm or abuse then those considerations must be given more weight. I am satisfied that the children are not fearful of the father and that despite the long absence, when reunited with the father under the supervision of Mr B, the children’s reaction was spontaneous and devoid of any anxiety or fear. That does not ignore the significant issues raised by each party against the other in respect of allegations of family violence, allegedly perpetrated by the father, and the conduct of the mother that unwittingly or otherwise may have the consequence of alienating the children from him. The separate proposals of the parties at least recognise that the children should spend regular time with the father and that it should be unsupervised. As discussed, the father does not seek on an interim basis that the children spend equal time with him. All applications for final orders have been listed for hearing on 18 October 2021. The parties have agreed for a family report to be prepared and it likely to be published in July 2021. I propose to make orders until further order unless something arises either from the family report or for other good reason which will promote a party to seek a variation of the interim arrangements. I consider that the demonstrable anxiety of the mother needs to be given recognition in circumstances where the children’s relationship with the father will be enhanced and therefore to the children’s benefit if she is able to support the children’s time with him. An indication of the ability of the mother to support the children’s time with the father is apparent from her change in position that the father’s time should be unsupervised. That arises by the mother having reflected upon the observations of Mr B. Equally, there is merit in the father’s application that the children should spend time with him in a manner that enables him to be involved in a range of activities that currently involve the children.