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Paolo & Malena

Paolo & Malena

Case [2022] FedCFamC2F 81 3 February 2022

Jurisdiction

Standing

Best Interests of the Child

Parental Responsibility

Meaningful Relationship

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Paolo & Malena [2022] FedCFamC2F 81

File number(s): CAC 432 of 2018

Judgment of: JUDGE W J NEVILLE

Date of judgment: 3 February 2022

Catchwords: FAMILY LAW – Final Hearing – parenting – serious allegations of family violence against the Father by the Mother – where Mother contends that the Father is a risk to herself and the children – Father has at all times denied allegations – allegations of risk and family violence unsubstantiated – Court unable to make findings whether allegations occurred – where independent experts suggest that the Mother is either disingenuous and or delusional – whether children should continue in a shared care arrangement or live primarily with Father – where there is a greater risk of psychological harm posed by the Mother, favouring an increase in the Father’s parenting role as a protective measure for the children – Orders made for sole parental responsibility and that the children live with the Father and spend substantial time with the Mother.

Legislation: Evidence Act 1995 (Cth), s.140
Family Law Act 1975 (Cth), Part VII, ss.60CC, 61DA, 65DAA

Cases cited: A v A (1998) FLC 92-800
Amador v Amador (2010) 43 Fam LR 268
AMS v AIF (1999) 199 CLR 160
Collu & Rinaldo [2010] FamCAFC 53
Fox v Percy (2003) 214 CLR 118
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
Johnson & Page (2007) FLC 93-344
Lee v Lee (2019) 266 CLR 129
M v M (1988) 166 CLR 69
M v S (2008) 37 Fam LR 32
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) 41 Fam LR 483
Moose & Moose (2008) FLC 93-375
Sigley v Evor (2011) 44 Fam LR 439
Simmons & Kingley (2014) FLC 93-581
Vontek v Vontek [2017] FamCAFC 28

Division Division 2 Family Law

Number of paragraphs: 110

Date of last submission/s: 16 June 2021

Date of hearing: 22 & 23 April 2021

Place: Canberra

Solicitor for the Applicant: Neilan Stramandinoli Family Law

Counsel for the Applicant: Dr J Behrens

Solicitor for the Respondent: Jeanine Lloyd & Associates

Counsel for the Respondent: Dr S Leslie

Solicitor for the Independent Children's Lawyer: Legal Aid ACT
ORDERS

CAC 432 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PAOLO
Applicant

AND:
MS MALENA
Respondent

LEGAL AID ACT
Independent Children’s Lawyer

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

3 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The Applicant Father has sole parental responsibility for the children:
a.X born in 2012; and
b.Y born in 2015.

2.Notwithstanding Order 1, the Applicant Father will notify the Respondent Mother of any major long-term decisions which he is proposing to make for the children or either of them with as much notice as practicable, will invite and consider any response received from her in a timely fashion,…

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 Paolo & Malena

Details

AGLC: Paolo & Malena [2022] FedCFamC2F 81
Case: [2022] FedCFamC2F 81
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard a parenting matter between Paolo and Malena. Malena made serious allegations of family violence against Paolo, including that he held a shotgun to her head, a knife to her throat, and drove at great speed with her and the children in the car. Paolo denied all allegations. Malena's allegations were unsubstantiated and the court was unable to make any findings on whether the allegations occurred. The court found that Malena's evidence was incredible and that Paolo was a gentle, child-focused father. The court found that Malena's mental health issues impacted her ability to accurately perceive the situation. The court made orders for Paolo to have sole parental responsibility for the children, for the children to live primarily with Paolo, and for Malena to attend a psychologist and comply with their recommendations. The court also made orders for communication between the parties, changeovers, and other arrangements.

Orders