PARISI & ZEIN - [2020] FamCA 587

FAMILY COURT OF AUSTRALIA

PARISI & ZEIN

[2020] FamCA 587

FAMILY LAW – PARENTING – interim parenting orders proposed by ICL – family report writer recommending separating children aged 13 and 11 – mother opposing those orders – ICL and father supporting orders separating siblings – father living an hour’s drive from children – father not participating in parenting – mother shouldering the whole burden – eldest child’s behaviour uncontrolled – changeovers problematic in COVID-19 pandemic.

FAMILY LAW – PRACTICE AND PROCEDURE – untested evidence – family violence alleged – case crying out for urgent trial – urgent trial ordered.

Family Law Act 1975 (Cth) s 102NA

Banks & Banks [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Marvel v Marvel (2010) 43 Fam LR 348
Redmond & Redmond [2014] FamCAFC 155
Salah & Salah (2016) 56 Fam LR 299
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Parisi

RESPONDENT:

Ms Zein

INDEPENDENT CHILDREN’S LAWYER:

V M Family Lawyers

FILE NUMBER:

MLC

1054

2019

DATE DELIVERED:

22 July 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

16 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Not applicable

COUNSEL FOR THE RESPONDENT:

Not applicable

SOLICITOR FOR THE RESPONDENT:

Not applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

V M Family Lawyers

Orders

The requirements of s 102NA(2) of the Family Law Act will apply to any cross-examination during the trial of this proceeding.
I fix this proceeding for trial before the Honourable Justice Hartnett on 7, 8 and 9 December 2020.
On or before 2pm on 24 July 2020 the independent children’s lawyer must email my chambers with the completed trial directions.
General liberty to apply is reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Parisi & Zein has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1054 of 2019

Mr Parisi

Applicant

And

Ms Zein

Respondent

REASONS FOR JUDGMENT

Introduction

Compounding the complexities of the interpersonal relationships in this case are the very considerable logistical obstacles created by the current COVID-19 pandemic. The father lives on the outskirts of metropolitan Melbourne whereas the mother and the two children live in an inner suburb. In addition, the eldest child who is currently 13 years of age is exhibiting concerning behavioural traits creating for each parent major problems when that child is in his or her care.

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 PARISI & ZEIN

Details

AGLC: PARISI & ZEIN [2020] FamCA 587
Case: [2020] FamCA 587
Decision Date: 22 July 2020

CaseChat Overview and Summary

In the matter of *Parisi & Zein*, heard by Wilson J, the dispute concerned proposed interim parenting orders. The Independent Children's Lawyer (ICL) recommended separating two children, aged 13 and 11, a proposal opposed by the mother. The father supported the separation of the siblings, despite living an hour away and not actively participating in the children's care, leaving the mother to bear the full burden. The court also noted issues with the eldest child's behaviour and problematic changeovers, exacerbated by the COVID-19 pandemic.

The central legal issues before the court were whether to make interim orders separating the siblings, and whether the case warranted an urgent trial, particularly given allegations of family violence and the presence of untested evidence. The court was required to consider the best interests of the children in the context of these competing proposals and allegations.

Wilson J reasoned that the case cried out for an urgent trial to resolve the contested issues. The court acknowledged the need to address the untested evidence and family violence allegations promptly. Consequently, the court ordered an urgent trial to be heard on 7, 8, and 9 December 2020 before Justice Hartnett. The court also stipulated that the requirements of s 102NA(2) of the *Family Law Act* would apply to any cross-examination during the trial. The Independent Children's Lawyer was directed to email completed trial directions to chambers by 2pm on 24 July 2020, with general liberty to apply reserved.

Orders

Orders of the court

The requirements of s 102NA(2) of the Family Law Act will apply to any cross-examination during the trial of this proceeding.

I fix this proceeding for trial before the Honourable Justice Hartnett on 7, 8 and 9 December 2020.

On or before 2pm on 24 July 2020 the independent children’s lawyer must email my chambers with the completed trial directions.

General liberty to apply is reserved.

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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