Petrarch and Strozzi and Ors - [2018] FamCA 638

FAMILY COURT OF AUSTRALIA

PETRARCH & STROZZI AND ORS

[2018] FamCA 638

FAMILY LAW – CHILDREN – Best Interests – Where the Department of Family and Community Services has intervened – Where there are allegations the father has perpetrated family violence against the mother and the children – Where there are allegations the father has sexually and physically abused the children – Where both parents have serious deficiencies in their parenting capacity – Where the children are particularly vulnerable – Where the children’s mental health is of concern – Where each of the children appears to have a strong relationship with the maternal grandmother – Where the maternal grandmother, the mother and the children have been victims of the father’s violent and controlling behaviour – Where the Department permitted the children to live in the care of the father – Where the children’s concerning circumstances appear to have changed little following the Department’s involvement –Where the father poses an unacceptable risk of harm to the children – Where the Department should hold parental responsibility for the children – Where the father should be restrained from allowing the children to live with or have contact with him – Where the goal is for the maternal grandmother to ultimately hold parental responsibility for the children and for all four children to live with her – Where the goal is for the mother to spend time with all four children – Orders made.

Evidence Act 1995 (Cth) ss 140(2)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAC, 68B, 68C

Briginshaw v Briginshaw (1938) 60 CLR 336
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Johnson & Page [2007] FamCA 1235
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
Orwell & Watson [2008] FamCAFC 62
Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32
Ruth & Hutton [2011] FamCAFC 99
W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235

APPLICANT:

Ms Petrarch

RESPONDENT:

Mr Strozzi

SECOND RESPONDENT:	Ms A Petrarch
INTERVENOR:	Secretary, Department of Family and Community Services NSW

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta Family Law

FILE NUMBER:

PAC

5215

2015

DATE DELIVERED:

23 August 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

11, 14-18, 23 May & 1 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sperling

SOLICITOR FOR THE APPLICANT:

John Spence & Associates

THE FIRST RESPONDENT:	Mr Strozzi in person
SOLICITOR FOR THE SECOND RESPONDENT:	Ms Hernandez of Forshaw Lawyers

COUNSEL FOR THE INTERVENOR:

Mr Anderson

SOLICITOR FOR THE INTERVENOR:

Crown Solicitors Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Hayward of Legal Aid NSW Parramatta Family Law

Orders

That the Minister for Family and Community Services (“the Minister”) shall have sole parental responsibility for the children W born … 2002, X born … 2003, Y born … 2007 and…

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 Petrarch and Strozzi and Ors

Details

AGLC: Petrarch and Strozzi and Ors [2018] FamCA 638
Case: [2018] FamCA 638
Decision Date: 23 August 2018

CaseChat Overview and Summary

The case of Petrarch and Strozzi and Ors involved the Minister for Family and Community Services, the maternal grandmother Ms A Petrarch, the mother, and the father, concerning the parental responsibility and living arrangements for four children: W, X, Y, and Z. The dispute centred on the future care and upbringing of these children, with significant orders made regarding their contact with their parents and grandmother.

The court was required to determine complex questions of parental responsibility, including the allocation of sole parental responsibility for the children between the Minister and the maternal grandmother, and the duration of these arrangements. Further issues included the specific living arrangements for each child, the extent and nature of contact between the children and their mother, and the complete prohibition of contact between the children and their father. The court also had to consider the terms of consultation and decision-making between the Minister, the maternal grandmother, and the mother in exercising parental responsibility.

Hannam J applied principles relating to the best interests of the children in making orders for their care and protection. The court ordered that the Minister would have sole parental responsibility for all four children for an initial period of 24 months. Following this period, the maternal grandmother was to assume sole parental responsibility for X and Z, and potentially for Y depending on his living arrangements. The Minister would retain parental responsibility for W until the age of 18, and for Y if he was not living with the maternal grandmother. Crucially, the father was restrained from any contact with the children, with orders made for the personal protection of the children under the Family Law Act 1975 (Cth), carrying a power of arrest. The orders also stipulated consultation requirements between the Minister, the maternal grandmother, and the mother regarding decisions about the children's care.

Orders

Orders of the court

That the Minister for Family and Community Services (“the Minister”) shall have sole parental responsibility for the children W born … 2002, X born … 2003, Y born … 2007 and Z born … 2009 (“the children”) for a period of 24 months from the date of these Orders.

Following the expiry of the 24 month period in Order (1), the maternal grandmother, Ms A Petrarch (“the maternal grandmother”) shall have sole parental responsibility for X and Z.

Following the expiry of the 24 month period in Order (1), in the event that Y is living with the maternal grandmother, the maternal grandmother shall have sole parental responsibility for Y and in the event that Y is not living with the maternal grandmother, the Minister shall retain parental responsibility for Y until the age of 18 years.

Following the expiry of the 24 month period in Order (1), the Minister shall retain parental responsibility for W until the age of 18 years.

That during such periods that the Minister holds parental responsibility for any child, any decisions relating to that exercise of parental responsibility shall be made in consultation with the maternal grandmother and the mother.

That upon allocation of parental responsibility to the maternal grandmother, any decisions made by the maternal grandmother relating to that exercise of parental responsibility shall be made in consultation with the mother.

That W and Y shall live with such person as directed by the Minister or her delegate.

That X and Z shall live with the maternal grandmother.

That X and Z shall spend time with the mother as follows:

(a) during the period that the Minister holds parental responsibility for X and Z at such times as approved by the Minister or her delegate and as set out in a contact schedule to be prepared in consultation between the Minister or her delegate, the maternal grandmother and the mother; and

(b) upon parental responsibility being allocated to the maternal grandmother in accordance with Order (2), as follows:

(i) each alternate weekend from after school Friday until 4pm Sunday;

(ii) for the first half of each NSW school holiday period;

(iii) on Mother’s Day from 9am to 4pm; and

(iv) such other times as agreed between the mother and the maternal grandmother.

10.

That in the event that Y lives with the maternal grandmother, he shall also spend time with the mother in accordance with Order (9).

11.

That W shall spend time with the maternal grandmother, the mother, X, Y and Z as directed by the Minister or her delegate.

12.

That the children shall have no contact with the father.

13.

That the father shall be restrained from having any form of contact with the mother and the maternal grandmother from the date of these Orders.

14.

That pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) the father is hereby restrained from contacting, approaching or receiving communication in any form from the children, or facilitating any of the children having contact with him or requesting or permitting any other person to make contact with any of the children on his behalf.

15.

That Order (14) is an order for personal protection of the children to which a power of arrest without warrant attaches pursuant to the provisions of s 68C of the Act.

16.

That in relation to the care of any child under the parental responsibility of the Minister pursuant to these Orders, the maternal grandmother and the mother shall follow the reasonable direction of the Minister or her delegate in relation to (but not limited to) the following matters:

(a) allowing the Minister or her delegate to enter the residence where any of the children reside for random visits (to the extent that they are legally able);

(b) allowing the Minister or her delegate to enter the residence where any of the children spend time for random visits (to the extent that they are legally able);

(d) participating in Family Therapy as arranged by the Minister or her delegate and facilitating the involvement of the children in such Family Therapy; and

(e) accepting all reasonable referrals to intervention and support services arranged by the Minister or her delegate and participating with those services as required from time to time.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.