NARDINI & NARDINI - [2019] FamCA 37

FAMILY COURT OF AUSTRALIA

NARDINI & NARDINI

[2019] FamCA 37

CHILDREN – Parental responsibility – With whom the children spend time – Where the mother seeks equal shared parental responsibility and to spend time with the children – Where the mother seeks such time to transition from supervised to unsupervised time – Where the father seeks sole parental responsibility, for the children to live with him and to spend supervised time with the mother – Where the Independent Children’s Lawyer seeks orders for the children to initially spend supervised time with the mother, with an opportunity for the mother to demonstrate capacity to transition to unsupervised time – Where the mother has experienced significant mental health issues – Court finds that the parents do not have the capacity to communicate effectively – Court finds that the mother has not adequately acknowledged or addressed her mental health issues – Court finds that the children would face an unacceptable risk of harm in spending unsupervised time with the mother – Orders made for the father to have sole parental responsibility – Orders made for the children to spend supervised time with the mother – Orders made for the mother to have an opportunity to demonstrate insight into her mental health and her parenting capacity and upon so doing, the opportunity to transition to unsupervised time with the children upon agreement between the parties.

FAMILY VIOLENCE – Where the mother contends that her mental health was adversely impacted upon by family violence perpetrated by the father – Where the father alleges that the mother has been violent towards him and the children – Where the Court has concerns regarding the credibility of the mother’s evidence – Where the mother’s revised position does not assert that the children are at risk of harm in the father’s care.

Family Law Act 1975 (Cth) ss. 4AB, 43(1), 60B(1), 60CA, 60CC, 61DA, 65DAC, 65DAA, 69ZT(1)

Evidence Act 1995 (Cth) s. 140

Adamson & Adamson (2014) FLC 93-622
B & B (1993) FLC 92-357
Blinko & Blinko [2015] FamCAFC 146
Briginshaw v Briginshaw (1938) 60 CLR 336
Carlson & Fluvium [2012] FamCA 32
Cotton & Cotton (1983) FLC 91-330
Dundas & Blake (2013) FLC 93-552
H v K [2001] FamCA 687
Johnson & Page (2007) FLC 93-344
Jurchenko & Foster (2014) FLC 93-598
Mazorski & Albright (2007) 37 Fam LR 518
M v M (1988) 166 CLR 69
McCall & Clark (2009) FLC 93-405
Moose & Moose (2008) FLC 93-375
Sigley v Evor (2011) 44 Fam LR 439
Slater v Light (2013) 48 FamLR 573
Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)
VR & RR (2002) FLC 93-099

APPLICANT:

Ms Nardini

RESPONDENT:

Mr Nardini

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

6095

2016

DATE DELIVERED:

31 January 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

9 - 13 April 2018, 29 May - 1 June 2018, 21 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hodgson

SOLICITOR…

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 NARDINI & NARDINI

Details

AGLC: NARDINI & NARDINI [2019] FamCA 37
Case: [2019] FamCA 37
Decision Date: 31 January 2019

CaseChat Overview and Summary

This matter concerned parenting orders for two children, B and C. The mother sought equal shared parental responsibility and a transition from supervised to unsupervised time with the children. The father sought sole parental responsibility, for the children to live with him, and for the mother to have only supervised time. The Independent Children’s Lawyer recommended supervised time initially, with an opportunity for the mother to demonstrate her capacity for unsupervised contact.

The court was required to determine the paramountcy of the children's welfare and best interests, specifically in relation to the mother's mental health issues, her capacity to acknowledge and address these issues, and the potential risk of harm to the children if unsupervised time were permitted. The court also considered allegations of family violence made by both parties and the credibility of the mother's evidence.

McClelland J found that the parents lacked the capacity for effective communication and that the mother had not adequately addressed her mental health concerns. Consequently, the court determined that there was an unacceptable risk of harm to the children if they spent unsupervised time with the mother. The court applied the principles of the *Family Law Act 1975* (Cth), prioritising the children's best interests.

The court ordered that the father have sole parental responsibility and that the children live with him. The mother was granted supervised time with the children on alternate weekends and on specific public holidays, with detailed provisions for the nature and location of this supervised contact. The orders also provided a pathway for the mother to transition to unsupervised time, contingent upon her demonstrating sustained engagement with psychological treatment and a clear improvement in her insight into her mental health and parenting capacity, as evidenced by reports from qualified professionals.

Orders

Orders of the court

THE COURT ORDERS THAT:

All previous parenting orders in relation to the children, B, born ... 2008 and C, born … 2012 ("the children"), be discharged.

The father have sole parental responsibility for the children.

The children live with the father.

Other than for the times listed in order 5 herein, the children spend time with the mother, as follows:

(a) On each alternate weekend, from 4.30 pm to 7.30 pm on Saturday and from 12.00 pm to 6.00 pm on Sunday;

(b) The time on Saturdays referred to in order (4)(a) herein is to be spent with either B or C, individually, alternating between each child from fortnight to fortnight;

(d) The mother is restrained from allowing or causing either of the maternal grandparents to be present during her time with the children, other than on two occasions per month that the mother spends time with the children in accordance with order (4)(a); and

(e) The above arrangements may be varied from time to time by written agreement between the parties.

In addition to the time specified in order (4)(a) herein, the children shall both spend time with the mother, as follows:

(a) On the mother's birthday, for a period of not less than three (3) hours as agreed between the parties, and failing agreement, from 4.00 pm to 7.00 pm;

(b) On Mother's Day, for a period of not less than four (4) hours as agreed between the parties, and failing agreement, from 3.00 pm to 7.00 pm;

(c) On each of the children's birthdays, for not less than two (2) hours as agreed between the parties, and failing agreement, from 5.00 pm to 7.00 pm; and

(d) During the Christmas period, as follows:

(i) In odd-numbered years, on Christmas Day, for a period of not less than six (6) hours as agreed between the parties, and failing agreement, from 1.00 pm to 7.00 pm; and

(ii) In even-numbered years, as follows:

A. On Christmas Eve, for not less than three (3) hours as agreed between the parties, and failing agreement, from 4.30 pm to 7.30 pm; and

B. On Christmas Day, for not less than three (3) hours as agreed between the parties, and failing agreement, from 8.00 am to 11.00 am.

In the event that the children's time with the mother pursuant to orders 4 and 5 herein falls on Father's Day or the father's birthday, the children's time with the mother shall be suspended and the children shall spend make up time with the mother for the time missed on such date as agreed between the parties, and failing agreement, on the weekend immediately following the missed time.

For the purposes of orders 4 and 5 herein:

(a) The children's time with the mother be supervised by F Group or other such supervisor as agreed between the parties;

(b) The costs associated with the supervision of the children's time with the mother be paid by the father, with the ongoing burden of this order (and previous supervision costs met by the father) to be reconsidered by the trial judge at any property settlement hearing, having regard to the then respective capacities of the parties arising from the outcome of that hearing; and

(c) The children’s supervised time with the mother take place at the former matrimonial home at M Street, Suburb N NSW ..., or other such place as agreed between the parties.

Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth), the father is permitted to temporarily take and send the children from the Commonwealth of Australia for the purpose of overseas travel and holidays each year, as follows:

(a) At any time that the children are living with the father;

(b) During school holidays between February and November for:

(i) A block period of two (2) consecutive weeks; and

(ii) A further block period of four (4) consecutive weeks; and

(c) During school holidays between December and January for a block period of three (3) consecutive weeks, when the mother's time with the children shall be suspended, provided that:

(i) Not later than 14 days in advance of the travel, the father provides to the mother a copy of:

A. All return airline tickets or booking confirmation for the children evidencing the children's return to the Commonwealth of Australia; and

B. An itinerary for the travel; and

C. Addresses of all places where the children will be staying overnight;

(ii) The children spend supervised make up time with the mother for the time(s) missed during the children's travel overseas as agreed between the parties, and failing agreement, on each subsequent weekend upon return from the overseas travel, until such time as the missed time(s) has been made up; and

(iii) The mother's time with the children pursuant to orders 4 and 5 herein shall resume on the first weekend following the children's return to the Commonwealth of Australia.

The father and the mother do all acts and things and sign all documents to ensure that the children have and maintain valid Australian passports and each parent shall sign all such documents within seven (7) days of receipt.

10.

The father be responsible for all cost associated with obtaining the children's passports in accordance with order 9 herein.

11.

The father shall ensure that the children continue to attend upon Ms BB, Psychologist, in accordance with Ms BB's recommendations.

12.

The father shall provide Ms BB with a copy of all contact reports prepared by F Group, or such other professional agency providing supervision pursuant to order (7)(a) herein.

13.

The father shall authorise Ms BB to communicate with the mother in the event that Ms BB considers such communication to be beneficial to her treatment of the children.

14.

In the event that the mother engages with a Psychologist for the purpose of improving her parenting skills, as recommended by Dr E, the mother has leave to provide that Psychologist with a copy of the following documents:

(a) These orders;

(b) The Reasons for Judgment set out below;

(d) Transcript of Dr E's evidence in these proceedings on 1 June 2018; and

(e) Contact reports prepared by F Group or such other professional agency providing supervision pursuant to order (7)(a) herein.

15.

In the event that the mother engages with a separate Psychologist and/or Psychiatrist for the purpose of monitoring her mental health, as recommended by Dr E, the mother has leave to provide that Psychologist and/or Psychiatrist with a copy of the following documents:

(a) These orders;

(b) The Reasons for Judgment set out below;

(d) Transcript of Dr E's evidence in these proceedings on 1 June 2018.

16.

In the event that the mother engages with a Psychologist for the purpose of improving her parenting skills:

(a) The mother is to notify the father in writing, as soon as practicable, of the name and contact details of the Psychologist;

(b) The mother is to authorise the Psychologist to communicate with the children’s psychologist, Ms BB; and

(c) Upon receipt of the information referred to in order (16)(a), the father is to authorise Ms BB to communicate with the mother’s Psychologist in relation to the children.

17.

In the event that the mother provides the father with:

(a) A written report from her Psychologist, referred to in order 14 herein, which confirms:

(i) That the mother has engaged with that Psychologist, for the purpose of improving her parenting skills, for at least 12 months;

(ii) That the Psychologist has received and considered the documents referred to in order 14 herein; and

(iii) That the mother has demonstrated insight and change in relation to her interactions with the children, including improvement in her capacity to contain her emotions and to manage the children’s behaviour during contact visits; AND

(b) A written report from a separate Psychologist and/or Psychiatrist, referred to in order 15 herein, which confirms:

(i) That the mother has engaged with that Psychologist and/or Psychiatrist for the purpose of monitoring her mental health, for a period of at least 12 months;

(ii) That the Psychologist and/or Psychiatrist has received and considered the documents referred to in order 15 herein;

(iii) That the mother has demonstrated insight into her psychiatric history and the impact of her mental illness on her parenting capacity;

(iv) That the mother has complied with all recommendations for treatment, including attendance at therapy and taking any prescribed medication; and

(v) That the mother's mental state has been stable during the period of treatment; THEN

(c) The parties are to attend upon a Family Dispute Resolution practitioner for the purpose of attempting to reach agreement in relation to alternative arrangements for the children to spend time with the mother, including a transition to unsupervised time; and

(d) In the event that agreement cannot be reached, in that regard, the mother may file an application to vary these orders.

18.

The father provide to the mother any information regarding the children’s health, emotional wellbeing or schooling received by him during the time that the children are in his care, including the details of any medication prescribed and/or taken by the children, school letters and reports.

19.

The mother and the father shall each inform the other promptly of any illness or injury suffered by the children requiring hospitalisation or prescription medication, and in the event of the latter, each party shall ensure that the children are provided with such medication and that it is administered to them in accordance with the directions of the treating medical practitioner.

20.

The mother and the father shall each authorise any treating medical practitioner or specialist to provide any information to the other party which either of them may reasonably require concerning the welfare of the children.

21.

The mother and the father shall not discuss, or permit discussion, with any of the children, any aspect of these proceedings.

22.

The mother and the father shall be restrained by injunction from denigrating or criticising, or allowing the denigration or criticism of the other, or their respective partners or family members, in the presence or hearing of either or both of the children.

23.

The Independent Children’s Lawyer arrange a meeting with the children to explain the effect of the terms of these orders to them, insofar as these orders affect each of the children.

24.

The parties and the Independent Children’s Lawyer be granted liberty to apply in the event that they seek orders for costs, upon providing the other parties and the Court with seven (7) days’ written notice.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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