FAMILY COURT OF AUSTRALIA
Morino & Arling [2021] FamCA 195
File number(s): ADC 5318 of 2020 Judgment of: BERMAN J Date of judgment: 13 April 2021 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Where the father seeks to spend time with the children – Where the mother considers time should be supervised – Where the children have not spent time with the father since separation – Where there are allegations of family violence and emotional abuse – Where both parties consider it is in the children’s best interests for there to be a meaningful relationship with the father – Where a cautious approach should be adopted where evidence has not been tested – Where it is important for the children to resume a relationship with the father – Orders. Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3) Cases cited: Marvel v Marvel (2010) 43 Fam LR 348
Starr & Duggan [2009] FamCAFC 115
Number of paragraphs: 60 Date of hearing: 26 March 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
Applicant
AND: MS ARLING
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
13 APRIL 2021
UPON NOTING that the father withdraws his undertaking made on 21 September 2020 and that the interim proceedings are listed for further hearing on 28 April 2021
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the parties have equal shared parental responsibility for X born … 2013 and Y born … 2018 (“the children”).
2.That the children live with the mother.
3.That the children spend time with the father as follows:-
(a)On 16, 19 and 21 April 2021 from 9.00 am until 11.30 am, with such time to be supervised by Mr B, with the father to initially be responsible for the payment of the professional fees as charged by Mr B.
4.That the parties will instruct Mr B to prepare a report as to his observations of the children’s time with the father with such report to be published and distributed by 26 April 2021.
5.That the parties be restrained and an injunction be granted restraining each of them from causing the children or either of them to consult with a psychiatrist, psychologist or social worker without the prior written consent of the other party.
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…
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CaseChat Overview and Summary
The court was required to determine the interim parenting arrangements for the children, specifically addressing with whom the children would live and the extent to which they would spend time with the father. This involved considering the paramountcy of the children's best interests, as guided by the legislative framework of the *Family Law Act 1975* (Cth), including the factors outlined in section 60CC. The court also needed to navigate the competing views of the parents regarding the resumption of the father's time with the children, particularly in light of the untested allegations and the need for a cautious approach at an interim stage.
Berman J adopted a structured approach, considering the parties' proposals, the objects and principles of the Act, and the specific factors under sections 60CC(2) and (3). The court acknowledged the importance of the benefit of a meaningful relationship with both parents and the need to protect children from harm. Recognising that evidence at an interim hearing cannot be tested, the court applied a cautious approach to the issues raised. The father withdrew an undertaking previously made, and the court ordered equal shared parental responsibility, with the children to live with the mother. The children were to spend supervised time with the father on specific dates, with a professional supervisor engaged and a report to be prepared. The parties were also restrained from unilaterally seeking psychiatric or psychological assessments of the children.
Orders
Orders of the court
ADC 5318 of 2020
BETWEEN:
MR MORINO
Applicant
AND:
MS ARLING
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
13 APRIL 2021
UPON NOTING that the father withdraws his undertaking made on 21 September 2020 and that the interim proceedings are listed for further hearing on 28 April 2021
THE COURT ORDERS UNTIL FURTHER ORDER:
1. That the parties have equal shared parental responsibility for X born … 2013 and Y born … 2018 (“the children”).
2. That the children live with the mother.
3. That the children spend time with the father as follows:-
(a) On 16, 19 and 21 April 2021 from 9.00 am until 11.30 am, with such time to be supervised by Mr B, with the father to initially be responsible for the payment of the professional fees as charged by Mr B.
4. That the parties will instruct Mr B to prepare a report as to his observations of the children’s time with the father with such report to be published and distributed by 26 April 2021.
5. That the parties be restrained and an injunction be granted restraining each of them from causing the children or either of them to consult with a psychiatrist, psychologist or social worker without the prior written consent of the other party.
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).
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
In Starr & Duggan [2009] FamCAFC 115 the Full Court gave clearer direction as to the co-existent principle that the best interests of the child is the paramount consideration and the legislative framework will of necessity involve some overlap of a consideration of similar factors pursuant to s 60CC of the Act. The approach is not meant to be rigid such that:-38.… it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:-•first make findings concerning the relevant s 60CC factors;•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) - which may be done by referring back to the earlier s 60CC findings.PARENTING CONSIDERATIONS I propose to adopt the following approach:-(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;(5)Have regard to additional considerations under s 60CC(3) of the Act; and(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment. The consideration of evidence adduced by each of the parties is necessarily tempered by the Court’s inability to test the evidence at an interim hearing and as such the evidence and issues raised by each of the parties is to be approached with caution. The father seeks that he should forthwith spend significant time with the children. He argues that there is no substance in any of the allegations made by the mother and even at their highest, given his clear and trenchant denials, there is an urgent need for the children to resume spending time with him in order to re-establish and/or preserve his relationship with them. The mother does not seek that the children’s time with the father be restored until she is satisfied that the father has undergone appropriate counselling and has gained therapeutic assistance for his aggressive conduct and to better manage his anger. If time is to be restored then it must be under strict conditions involving supervision by a skilled and professionally qualified supervisor, preferably a woman.