NARDINI & NARDINI - [2017] FamCA 646

FAMILY COURT OF AUSTRALIA

NARDINI & NARDINI

[2017] FamCA 646

FAMILY LAW – CHILDREN – INTERIM PARENTING – Where the mother has suffered from mental health issues – Where the children currently live with the father and spend time with the mother on a supervised basis – Where the mother sought orders for the children to spend additional time with her under the supervision of the maternal grandparents rather than a professional service – Where the father supported the mother’s application for additional time but wants that time to remain supervised by a professional service – Court finds that it is appropriate for the children’s time with the mother to remain supervised by a professional service due to the uncertainty as to the extent of the mother’s recovery from mental illness – Court finds that the current interim parenting orders are an appropriate interim arrangement pending the final hearing of the matter – No additional orders made.

Family Law Act 1975 (Cth) ss 4, 43, 60B, 60CC, 61DA, 65DAA, 65DAE, 69ZX

B and B (1993) FLC 92-357
Banks & Banks [2015] FamCAFC 36
Bennett and Bennett (1991) FLC 92-191
Cowling v Cowling [1998] FamCA 19
Johnson and Page (2007) FLC 93-344
Keats & Keats [2016] FamCAFC
M v M (1988) 166 CLR 69
Mazorski & Albright (2007) 37 Fam LR 518
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
N and S and the Separate Representative (1996) FLC 92-655
Napier and Hepburn (2006) FLC 93-303
Newton & Henzel [2016] FamCA 323
Potter and Potter (2007) FLC 93-326
Rice & Asplund (1979) FLC 90-725

SS v AH [2010] FamCAFC 13

Salah & Salah (2016) FLC 93‑713

Sigley v Evor [2011] FamCAFC 22

Stott & Holger and Anor [2017] FamCAFC 152

APPLICANT:

Ms Nardini

RESPONDENT:

Mr Nardini

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

FILE NUMBER:

SYC

6095

2016

DATE DELIVERED:

25 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

25 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hodgson

SOLICITOR FOR THE APPLICANT:

Martin Legal

COUNSEL FOR THE RESPONDENT:

Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

Orders

Pending further order the interim orders made on 25 July 2017 will remain in place.
The hearing date in respect to parenting matters for five days commencing on 9 April 2018 is confirmed.
In the event that a party wishes to rely upon the evidence of any treating medical practitioner that evidence should be filed and served by 17 December 2017.
In the event that a party wishes to object to any proposed evidence from a party’s treating medical practitioner they must notify the other party of that objection by 30 January 2018.
In the event that a party wishes to rely on evidence in reply to any evidence provided by a party’s medical practitioner that evidence should be filed and served upon the other party by 17 February…

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

AGLC: NARDINI & NARDINI [2017] FamCA 646
Case: [2017] FamCA 646
Decision Date: 25 August 2017

CaseChat Overview and Summary

In the matter of *Nardini & Nardini*, heard by McClelland J, the dispute concerned interim parenting orders for children whose mother had experienced mental health issues. The children were residing with the father and spending supervised time with the mother. The mother sought to increase her time with the children, proposing supervision by her parents instead of a professional service. The father supported increased time but wished for continued professional supervision.

The court was required to determine whether to vary the existing interim parenting orders to allow for increased unsupervised or differently supervised time between the mother and the children, or to maintain the current arrangements pending a final hearing. The central legal issue was the appropriate interim parenting arrangement that best served the children's welfare, considering the mother's mental health and the father's concerns regarding supervision.

McClelland J reasoned that due to the ongoing uncertainty surrounding the extent of the mother's recovery from her mental illness, it was appropriate for the children's time with her to remain supervised by a professional service. The court found that the existing interim parenting orders constituted an appropriate arrangement pending the final determination of the matter. Consequently, no additional orders were made regarding increased or altered supervision arrangements at this interim stage. The court confirmed the final hearing date and set out detailed directions for the filing and service of evidence, including medical reports and non-medical affidavits, as well as outlines of argument and proposed orders.

Orders

Orders of the court

Pending further order the interim orders made on 25 July 2017 will remain in place.

The hearing date in respect to parenting matters for five days commencing on 9 April 2018 is confirmed.

In the event that a party wishes to rely upon the evidence of any treating medical practitioner that evidence should be filed and served by 17 December 2017.

In the event that a party wishes to object to any proposed evidence from a party’s treating medical practitioner they must notify the other party of that objection by 30 January 2018.

In the event that a party wishes to rely on evidence in reply to any evidence provided by a party’s medical practitioner that evidence should be filed and served upon the other party by 17 February 2018.

In the event of a party objecting to the other party’s medical evidence they should notify the other party of that fact by 1 March 2018.

In the event that the parties are unable to resolve their objections, if any, in respect to the other parties medical evidence, that party who wishes to continue to rely on the medical evidence that has been objected to shall file and serve any necessary application by 8 March 2018.

The non-medical evidence of the parties and any other witness upon which they intend to rely is to be set out in one Affidavit per witness and filed and served by 17 February 2018.

The Independent Children’s Lawyer has liberty to serve such subpoenas as the Independent Children’s Lawyer deems necessary or as is reasonably requested by either of the parties.

10.

On or before 2 April 2018 the parties are to provide, electronically to my Associate, a case outline including;

(a) a list of documents upon which they intend to rely;

(b) a minute of proposed orders;

(d) a dot point summary of argument addressing those matters set out in section 60CC of the Family Law Act 1975 (Cth).

11.

The parties have liberty to apply on seven (7) days’ notice to the other party and to the Court.

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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