OLIVERI & OLIVERI - [2020] FamCA 545

FAMILY COURT OF AUSTRALIA

OLIVERI & OLIVERI

[2020] FamCA 545

FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests of a child – Family Violence – Interim orders – Where the wife seeks that the children live with her and spend no time with the husband – Where the husband does not oppose the children living with the wife but seeks that the children spend time with him – Where there are pending criminal proceedings of alleged domestic violence – Where the veracity of the wife’s allegations and husband’s denials cannot yet be determined – where the Court should adopt a cautious approach – Orders.

FAMILY LAW – CHILDREN – Parental Responsibility – Where the wife seeks sole parental responsibility – Where the husband seeks equal shared parental responsibility – Where the parties have not addressed the issue of parental responsibility – Where no evidence is presented of difficulties with day to day and long term issues pending final hearing – Where there are means by which the parties can communicate.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(3), 62G(2), 65DAA

Marvel & Marvel [2010] FamCAFC 101

APPLICANT:

Ms Oliveri

RESPONDENT:

Mr Oliveri

FILE NUMBER:

ADC

2966

2018

DATE DELIVERED:

8 July 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

17 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richards

SOLICITOR FOR THE APPLICANT:

Resolve Divorce Lawyers

COUNSEL FOR THE RESPONDENT:

Mr McGinn

SOLICITOR FOR THE RESPONDENT:

Clelands Lawyers Adelaide Pty Ltd

Orders

That X and Y both born … 2017 (“the children”) live with the wife.
That the children spend time with the husband as follows:-
(a)from 10.00 am until 5.00 pm on Saturday commencing 11 July 2020 and each alternate Saturday thereafter;
(b)from 10.00 am until 5.00 pm on Sunday commencing 19 July 2020 and each alternate Sunday thereafter.
The time that the children will spend with the husband shall be supervised by Ms B, Ms C, Mr D (“the supervisors”) or any of them.
That handover shall be effected at the wife’s home or at such other place as the parties may agree on the following conditions:-
(a) The husband is to be accompanied by one of the nominated supervisors;
(b)That handover shall take place at the front door of the wife’s premises unless otherwise agreed between the wife and the supervisor;
(c)That the parties are restrained and an injunction granted restraining each of them from coming into contact with each other at handover.
That the parties and the children do attend upon a family consultant as may be nominated by the Director of Court Counselling for the purposes of the preparation of a report pursuant to s 62G(2) of the Family Law Act 1975 (Cth), with such report to be completed by 30 September 2020.
That the proceedings be adjourned generally to 16^th day of October 2020 at 9.15am.

Note: The form of the order is subject to…

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: [2020] FamCA 545
Decision Date: 8 July 2020

CaseChat Overview and Summary

In the matter of *Oliveri & Oliveri*, Berman J considered interim orders concerning the living arrangements and time spent with the children of the marriage. The wife sought orders that the children live with her and spend no time with the husband, citing allegations of domestic violence. The husband did not oppose the children living with the wife but sought orders for them to spend time with him. Pending the determination of criminal proceedings related to the alleged domestic violence, the court was unable to ascertain the veracity of the wife's allegations or the husband's denials, necessitating a cautious approach.

The primary legal issues before the court were whether the children should live with the wife and spend time with the husband, and the nature of that time, given the pending criminal proceedings and the unresolved allegations of family violence. Additionally, the court considered the issue of parental responsibility, with the wife seeking sole parental responsibility and the husband seeking equal shared parental responsibility, although neither party had fully addressed this aspect nor presented evidence of difficulties in day-to-day or long-term issues that would preclude communication.

Berman J reasoned that in circumstances where serious allegations of family violence are pending determination in criminal proceedings, and the court cannot yet ascertain the truth of these allegations, a cautious approach is warranted to ensure the children's safety and wellbeing. The court applied the principle that the best interests of the child are paramount. Given the unresolved allegations and the need for a careful assessment, the court made interim orders for the children to live with the wife and spend supervised time with the husband. The court also ordered the parties and children to attend upon a family consultant for a report and adjourned the proceedings for further consideration.

The court ordered that the children live with the wife. The children were to spend time with the husband on alternate Saturdays and Sundays between 10.00 am and 5.00 pm, with this time to be supervised by nominated supervisors. Handover arrangements were specified, including the husband being accompanied by a supervisor and an injunction restraining the parties from contacting each other at handover. The parties and children were directed to attend a family consultant for a report by 30 September 2020, and the proceedings were adjourned to 16 October 2020.

Orders

Orders of the court

That X and Y both born … 2017 (“the children”) live with the wife.

That the children spend time with the husband as follows:-

(a) from 10.00 am until 5.00 pm on Saturday commencing 11 July 2020 and each alternate Saturday thereafter;

(b) from 10.00 am until 5.00 pm on Sunday commencing 19 July 2020 and each alternate Sunday thereafter.

The time that the children will spend with the husband shall be supervised by Ms B, Ms C, Mr D (“the supervisors”) or any of them.

That handover shall be effected at the wife’s home or at such other place as the parties may agree on the following conditions:-

(a) The husband is to be accompanied by one of the nominated supervisors;

(b) That handover shall take place at the front door of the wife’s premises unless otherwise agreed between the wife and the supervisor;

(c) That the parties are restrained and an injunction granted restraining each of them from coming into contact with each other at handover.

That the parties and the children do attend upon a family consultant as may be nominated by the Director of Court Counselling for the purposes of the preparation of a report pursuant to s 62G(2) of the Family Law Act 1975 (Cth), with such report to be completed by 30 September 2020.

That the proceedings be adjourned generally to 16th day of October 2020 at 9.15am.

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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