Pacetti & Dambrose (No 3)

Case [2021] FCCA 862

FEDERAL CIRCUIT COURT OF AUSTRALIA

Pacetti & Dambrose (No 3) [2021] FCCA 862

File number(s): PAC 2061 of 2018
Judgment of: JUDGE NEWBRUN
Date of judgment: 22 April 2021
Catchwords: FAMILY LAW – PARENTING PROCEEDINGS – proceedings transferred to the Family Court of Australia – Order made.
Legislation: Federal Circuit Court of Australia Act 1999, s 39
Federal Circuit Court Rules 2001, r 8.02
Family Law Act 1975, s 67Q
Mental Health Act 2007
Cases cited: Rice & Asplund (1979) FLC 90-725
Swenson & Brantley (No 2) [2020] FamCAFC 205
SPS & PLS [2008] FamCAFC 16
Marsden & Winch [2009] FamCAFC 152
Olenghi & Salambo [2021] FamCA 9
Searson & Searson (2017) FLC 93-788
Morris & Rosetti [2017] FamCA 249
Number of paragraphs: 76
Date of last submission/s: 31 March 2021
Date of hearing: 31 March 2021
Place: Parramatta
Solicitor for the Applicant: The Applicant appeared in person
Solicitor for the Respondent: Mr Kirby
Solicitor for the Independent Children's Lawyer: No appearance

ORDERS

PAC 2061 of 2018
BETWEEN:

MR PACETTI

Applicant
AND:

MS DAMBROSE

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

22 APRIL 2021

THE COURT ORDERS THAT:

1.There has been a significant change in circumstances since the Court’s Final Orders of 7 August 2020 such that, acting in the best interests of the child, X born 2016, the parties should be permitted to seek fresh parenting orders in relation to the child.

2.These parenting proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with a mention date to be held in that Court on 13 May 2021 at 9.30am.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Pacetti & Dambrose (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE NEWBRUN:

  1. This is firstly the determination of whether the parties should be permitted to seek fresh parenting orders following final parenting orders being made on 7 August 2020, after a three day defended hearing.  The Court is required to determine whether there has been a significant change in circumstances (see the decision in Rice & Asplund (1979) FLC 90-725) since the Court’s above Orders. The Court had on 18 February 2021 directed the parties to file written submissions in relation to this Rice & Asplund issue, in particular after the Mother had sought fresh parenting orders as set out in her Application in a Case filed 29th of January 2021 and after the Father had sought fresh parenting orders in his Response filed 8 February 2021.  On 31 March 2021 the Court had heard the parties’ oral submissions in relation to this Rice & Asplund issue, and the Court had reserved its judgement.

  2. And secondly this is the determination of whether these proceedings should be transferred to the Family…

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Pacetti and Dambrose (No 3) [2021] FCCA 862
Case
[2021] FCCA 862
Decision Date

CaseChat Overview and Summary

In the matter of *Pacetti & Dambrose (No 3)*, Newbrun J of the Federal Circuit Court of Australia considered an application by Mr Pacetti (the applicant father) against Ms Dambrose (the respondent mother) concerning parenting orders for their child, X, born in 2016. The dispute arose following the court's final parenting orders made on 7 August 2020, with the father alleging a significant change in circumstances necessitating fresh orders.

The primary legal issue before the court was whether there had been a significant change in circumstances since the final orders of 7 August 2020, such that it was in the best interests of the child, X, to permit the parties to seek fresh parenting orders. This required the court to assess the evidence presented by the father regarding the mother's alleged conduct and its impact on the child and the father's ability to facilitate time between the child and the mother.

Newbrun J reasoned that the evidence presented by the father, including allegations of the mother's unpredictable and violent behaviour, her persistent contact with the child's preschool leading to its withdrawal of services, her refusal to return the child on multiple occasions, and the circumstances surrounding a recovery order issued by the court, collectively demonstrated a significant change in circumstances. The court found that these events, particularly the mother's actions leading to the necessity of a recovery order, indicated a departure from the situation contemplated by the final orders and raised serious concerns for the child's welfare. The court applied the principle that a significant change in circumstances is a prerequisite for revisiting final parenting orders, and that the paramount consideration in such matters is the best interests of the child.

Consequently, the court ordered that there had been a significant change in circumstances since the final orders of 7 August 2020, and that, acting in the best interests of the child, X, the parties should be permitted to seek fresh parenting orders. The proceedings were forthwith transferred to the Family Court of Australia at Parramatta, with a mention date set for 13 May 2021.

Orders

Orders of the court

PAC 2061 of 2018

BETWEEN:

MR PACETTI

Applicant

AND:

MS DAMBROSE

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

22 APRIL 2021

THE COURT ORDERS THAT:

1. There has been a significant change in circumstances since the Court’s Final Orders of 7 August 2020 such that, acting in the best interests of the child, X born 2016, the parties should be permitted to seek fresh parenting orders in relation to the child.

2. These parenting proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with a mention date to be held in that Court on 13 May 2021 at 9.30am.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The following Exhibits were relied upon: (a)Exhibit A: Documents contained within sleeves 45 and 48 of NSW Police subpoenaed documents.EVIDENCE The Court does not propose to set out all the material before the Court. Again, the Court’s final orders were made on 7 August 2020. The Court refers to its Reasons for Judgment relating to those Orders. The Father alleges that he is fearful of the Mother as she is “unpredictable and violent”. The NSW police applied for an extension of the AVO and proceedings were heard in the Suburb F Local Court on 6 August 2020 to extend the AVO against the Mother for the protection of the Father; an extension was made and the AVO expired on 6 February 2021. In this context, the Father alleges that as a result of the Mother’s conduct and stress associated with facilitating time between the child and the Mother, he has been regularly seeing a counsellor through Victims Services. The Father alleges that on about 23 September 2020 the child’s preschool gave the Father two weeks’ notice to leave, because the pre-school could no longer offer services due to the Mother’s conduct in calling the preschool almost every day. The Father alleges that on 17 October 2020 the Mother refused to return the child to the Father at the conclusion of spending time with the child. The Father alleges that with the assistance of a supervisor at BB Counselling, the child was returned to the Father on this day. The Father alleges that on 16 November 2020 the child told the Father that the Mother had told the child that she would be living with the Mother full-time soon. The Mother failed to return the child to the Father on 21 November 2020, in accordance with the Court’s Orders. On 23 November 2020, the Father filed an Initiating Application seeking interim parenting orders, inter alia, that a recovery order issue for the child pursuant to section 67Q of the Family Law Act 1975 (the Act). The Court made a Recovery Order on 24 November 2020. Pursuant to the above Recovery Order, Police attended the Mother’s residence to recover the child on 24 November 2020. The Father alleges that initially the Mother refused to hand the child to the police. The Father alleges that the police called for backup and were about to use a battering ram to force entry to the home. The Father alleges that a police officer told him that when the Mother saw the battering ram she opened the door. The Father alleges that the police took the child who appeared to the Father to be very scared and was shaking and crying. On 4 December 2020, the proceedings were mentioned before the Court following the making of the above recovery order. Inter alia, by consent and without admissions, the Court made an order that the Father take all reasonable steps to ensure that the paternal grandmother does not physically chastise the child; this Order was made in circumstances where the Mother was alleging that the paternal grandmother was inappropriately physically chastising the child.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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