PACETTI & DAMBROSE (No.2) - [2020] FCCA 2184

FEDERAL CIRCUIT COURT OF AUSTRALIA

PACETTI & DAMBROSE (No.2)

[2020] FCCA 2184

Catchwords:
FAMILY LAW – Parenting – best interests of child – orders made.

Legislation:

Crimes Act 1900 NSW, s.59

Mental Health (Forensic Provisions) Act 1990, s.32

Mental Health Act 2007, s.22

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D

Cases cited:

Lansa & Clovelly [2010] FamCA 80

Applicant:

MR PACETTI

Respondent:

MS DAMBROSE

File Number:

PAC2061 of 2018

Judgment of:

Judge Newbrun

Hearing dates:

16, 17 and 18 June 2020

Date of Last Submission:

18 June 2020

Delivered at:

Parramatta

Delivered on:

7 August 2020

REPRESENTATION

Counsel for the Applicant:

Ms Giacomo of Counsel

Solicitors for the Applicant:

Shelly Legal

Counsel for the Respondent:

Mr Blank of Counsel

Solicitors for the Respondent:	Bell Lawyers
Counsel for the Independent Children’s Lawyer:	Mr Braine of Counsel
Solicitors for the Independent Children’s Lawyer:	Ark Law Lawyers

ORDERS

All previous orders are discharged.
That the parties shall have equal shared parental responsibility for the child X born in 2016.
The child shall live with the Father.
The child spend time with the Mother:
(a)For a period of 6 months, from 10 AM until 3 PM, each Tuesday and Saturday each week;
(b)Thereafter, for a period of 6 months, from 10 AM Friday until 5PM Saturday, each alternate weekend;
(c)Thereafter, for a period of 6 months, from 10 AM Friday until 5PM Sunday each alternate weekend;
(d)Thereafter, from after school or 3PM Friday until before school or 9AM if it is a non-school day Monday each alternate weekend.
The child shall spend time with the Mother during school holiday periods:
(a)From April 2022, for 3 consecutive nights commencing on the last day of school and concluding 3 days thereafter at 5 PM;
(b)From June 2022, for 4 consecutive nights commencing on the last day of school and concluding 4 days thereafter at 5 PM;
(c)From September 2022, for 5 consecutive nights commencing on the last day of school and concluding 5 days thereafter at 5 PM;
(d)From December/January 2022 and thereafter, for 7 consecutive days of the school holiday period, being the first half, commencing on the last day of school and concluding on the middle Saturday at 5 PM;
(e)Thereafter:
(i)during each school holiday period following terms 1, 2 and 3, for a period of one half commencing on the last day of school and concluding at 5 PM on the middle Saturday;
(ii)during each school holiday period following term 4, each alternate week, commencing on the last day of school of term 4.
The child shall spend time with the Mother on special occasions as follows:
(a)On Christmas Day 2020, from 12 PM to 7 PM.
(b)Thereafter, during the Christmas period:
(i)from 5 PM Christmas Eve until 5 PM Christmas day in even-numbered years
(ii)from 5 PM Christmas Day until 5 PM Boxing Day in odd numbered years
For a period of 6 months from the date of these Orders, changeover shall occur at such…

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 PACETTI & DAMBROSE (No.2)

Details

AGLC: Pacetti and Dambrose (No.2) [2020] FCCA 2184
Case: [2020] FCCA 2184
Decision Date: 7 August 2020

CaseChat Overview and Summary

In the matter of PACETTI & DAMBROSE (No.2), Judge Newbrun of the Family Court of Australia considered parenting orders concerning a child born in 2016. The dispute involved the arrangements for the child's living situation, time spent with each parent, and various other aspects of their care and upbringing.

The court was required to determine the best interests of the child in relation to establishing equal shared parental responsibility, determining with whom the child would live, and the specific time each parent would spend with the child. Further issues included arrangements for school holidays, special occasions, changeovers, communication between parents, and the prevention of the child's removal from Australia. The court also addressed injunctions to protect the child, restrictions on obtaining foreign travel documents, and orders concerning the parents' conduct and communication in the child's presence.

Judge Newbrun applied the principles of the *Family Law Act 1975* (Cth) concerning the best interests of the child. The court discharged all previous orders and made new orders establishing equal shared parental responsibility. The child was ordered to live with the Father, with a detailed schedule outlining the child's time with the Mother, progressively increasing over several stages. Specific provisions were made for school holidays, special occasions including Christmas and Easter, and the child's birthday. The court also implemented measures for supervised changeovers for an initial period, restricted communication between parents to text and email, and imposed injunctions preventing the child's removal from Australia and the Mother's attempt to obtain foreign travel documents. Further orders addressed derogatory remarks about parents, parental involvement in school events, information sharing, and mandatory participation in parenting programs and counselling.

Orders

Orders of the court

All previous orders are discharged.

That the parties shall have equal shared parental responsibility for the child X born in 2016.

The child shall live with the Father.

The child spend time with the Mother:

(a) For a period of 6 months, from 10 AM until 3 PM, each Tuesday and Saturday each week;

(b) Thereafter, for a period of 6 months, from 10 AM Friday until 5PM Saturday, each alternate weekend;

(d) Thereafter, from after school or 3PM Friday until before school or 9AM if it is a non-school day Monday each alternate weekend.

The child shall spend time with the Mother during school holiday periods:

(a) From April 2022, for 3 consecutive nights commencing on the last day of school and concluding 3 days thereafter at 5 PM;

(b) From June 2022, for 4 consecutive nights commencing on the last day of school and concluding 4 days thereafter at 5 PM;

(c) From September 2022, for 5 consecutive nights commencing on the last day of school and concluding 5 days thereafter at 5 PM;

(d) From December/January 2022 and thereafter, for 7 consecutive days of the school holiday period, being the first half, commencing on the last day of school and concluding on the middle Saturday at 5 PM;

(e) Thereafter:

(i) during each school holiday period following terms 1, 2 and 3, for a period of one half commencing on the last day of school and concluding at 5 PM on the middle Saturday;

(ii) during each school holiday period following term 4, each alternate week, commencing on the last day of school of term 4.

The child shall spend time with the Mother on special occasions as follows:

(a) On Christmas Day 2020, from 12 PM to 7 PM.

(b) Thereafter, during the Christmas period:

(i) from 5 PM Christmas Eve until 5 PM Christmas day in even-numbered years

(ii) from 5 PM Christmas Day until 5 PM Boxing Day in odd numbered years

For a period of 6 months from the date of these Orders, changeover shall occur at such venue as agreed between the parties, but failing agreement, shall occur at McDonald’s, P Street, Suburb C, and the changeover is to be supervised by either Q Families, or an alternative supervision service agreed upon by the parties, and the parties shall equally share the costs of supervision. Following the child commencing school, changeovers shall occur at such venue as agreed between the parties, but failing agreement, at the child’s school, or on non-school days, at the above McDonald’s.

That except in the event of a medical emergency, the parents are to communicate with each other regarding issues relating to the care and wellbeing of the Child by way of text message and email only.

That each party (MR PACETTI and MS DAMBROSE) their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said Child X, born in 2016 from the Commonwealth of Australia for a period of ten years; AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/names of the said child/children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Watchlist for the said period, or until the Court orders its removal.

10.

That the Mother is hereby restrained from approaching the Country N Consulate or any other foreign Government department with the intention of obtaining a national identity document or passport for the Child, X.

11.

That the parties are restrained from making any derogatory or critical remarks about the other parent (or member of that parent’s household) in front of the Child or within hearing of the Child.

12.

That the parties are to forthwith remove the Child from any environment in which a third party/ies is making derogatory or critical remarks about the other parent or member of the other parent or member of the other parent’s household.

13.

The parent not having the Child in their care on the Child’s birthday will spend time with the Child as follows:

(a) if a school day, from after school to 7:00pm;

(b) if a non-school day, from 2:00pm to 7:00pm.

14.

Should the Child not be in the care of the Father on Father’s Day or the Mother on Mother’s Day then in that event the Child shall spend time with the Father or the Mother on that specific day from 9:00am until 5:00pm.

15.

That the Child will spend time with the Mother on:

(a) On Easter Sunday from 12pm to 7pm.

16.

That the parties will do all acts and things necessary to authorise and instruct any schools that the Child may attend to:

(a) Send duplicate copies of report cards, letters and any other correspondence issued by the school to both parents;

(b) Send a duplicate copy of school fees to both parents; and

17.

That both parties keep each other informed of significant events occurring in the child’s life, in particular family, social, academic, health, medical, sporting and the like and that each party has entitlement and share of the children’s achievements, education, medical and other certificates, school photographs and the like.

18.

Both parties shall keep the other informed of their current residential address, telephone numbers and email addresses; and:

(a) Provide each other with no less than seven (7) days’ notice of their intention to change their residential address; and

(b) Provide each other with any notice to change their telephone number or email address within 24 hours of any change.

19.

That within 14 days the parties shall do all acts and things necessary to enrol and participate in a parenting orders program, such as Keeping Contact through, for example, R Counselling Centre.

20.

Thereafter and within 14 days of completing the above program the Father shall do all acts and things necessary to enrol in and participate in the Keeping Kids in Mind children’s course.

21.

That the Mother shall attend upon her current treating practitioners with respect to her mental health and comply with treatment recommendations including medication if so prescribed.

22.

These Orders constitute authority for the Mother and Father to each liaise with the child’s treating medical practitioners and obtain information about any treatment and any other medical issues.

23.

That both parties will be entitled to attend, particularly if the event falls in their time:

(a) School functions and events that allow for parental attendance including but not limited concerts, school assemblies, sport days, parent teacher interviews, canteen duties and social functions.

24.

The parties shall be permitted to provide a copy of these Reasons for Judgment to the Local Court hearing the parties’ ADVO proceedings.

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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