Petrallis & Hanford (No 2) - [2023] FedCFamC2F 1019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Petrallis & Hanford (No 2) [2023] FedCFamC2F 1019

File number: DGC 2569 of 2018

Judgment of: JUDGE FORBES

Date of judgment: 16 August 2023

Catchwords: FAMILY LAW – parenting –– where there is a high level of family dysfunction – long history of engagement with Courts, police, departmental services, therapists and external agencies – mutual allegations of family violence between parents – allegations mother has subjected children to family violence – no communication between parents - where three of four children live with father and refuse to see the mother – 12 year old girl in all male household – need to re-establish relationship between mother and daughter – where complex family therapy recommended – consideration of live with and spend time arrangements – relevance of children’s wishes - consideration of best interests of the children

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 11F, 60B, 60CA, 60CC 61DA, 65DAA

Cases cited:
Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

R & R [2000] FamCA 43

Division: Division 2 Family Law

Number of paragraphs: 310

Date of hearing: 20-21, 28 October 2022

Place: Melbourne

Counsel for the Applicant: Mr Wilson

Solicitor for the Applicant: Phaedonos Law

Counsel for the Respondent: Ms Juneja

Solicitor for the Respondent: Women’s Legal Service Victoria

Solicitor for the Independent Children's Lawyer: Peter Lynch Lawyer
ORDERS

DGC 2569 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PETRALLIS

Applicant

AND:
MS HANFORD

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

16 AUGUST 2023

THE COURT ORDERS THAT:
1.All previous Parenting Orders in respect of the children X born in 2009 and Y born in 2011 be discharged.

Parental responsibility
2.The parties have equal shared parental responsibility for the children X born in 2009 and Y born in 2011 (“the children”).

X
3.X live with the Mother.
4.Subject to order 5, X spend time with the Father every alternate week from Friday after school until the commencement of school on the following Wednesday.
5.Until such time the Father is able to facilitate X having his own sole-occupancy bedroom at the father’s residence, X live with the Mother and spend time with the Father as follows:
(a)from the conclusion of school or 3:00pm on Friday (or Thursday if Friday is a public holiday) to the commencement of school or 9:00am on Monday (or Tuesday if Monday is a public holiday) each alternate weekend;
(b)from the conclusion of school or 3:00pm on Wednesday to the commencement of school or 9:00am on Thursday each other alternate week.

6.X otherwise spend time with the parties on school holidays as follows:
(a)with the Mother
(i)for one half of the Term 1, 2, 3 holidays as agreed between the parties, failing agreement the first half of the Term 1, 2, 3 holidays in even years and the second half in odd years;
(ii)for one half of the…

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: [2023] FedCFamC2F 1019
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Petrallis & Hanford (No 2) involved the determination of parenting arrangements for two children, X and Y, born in 2009 and 2011 respectively. The Court was required to decide on the living and spending time arrangements for both children, with a particular focus on re-establishing a relationship between Y and her mother. The legal issues included whether there should be equal shared parental responsibility for the children, whether the mother should have sole parental responsibility, and the specifics of spending time arrangements between Y and her mother.

The Court, after considering the evidence and submissions, found that both parents had limited insight into their own behaviours and its effect on their parenting. The father's evidence suggested he was overly deferential to the children's wishes and lacked understanding of their emotional and educational needs. The mother's evidence indicated a challenging home environment and a need for extensive therapeutic support to repair the relationship between her and Y. The Court determined that complex family therapy was necessary to address the family's issues and facilitate the re-establishment of the relationship between Y and her mother.

The Court ordered that both parents have equal shared parental responsibility for X and Y. X was to live with the mother and spend time with the father under specific arrangements. Y was to live with the father but engage in a graduated spending time arrangement with the mother, facilitated by complex family therapy. The therapy was to be conducted by either Ms B or Ms C, depending on their availability, and the costs were to be shared equally by both parents. The Court also imposed detailed communication and changeover arrangements to ensure the smooth transition between parents and facilitate the children's relationship with both parents.

Orders