FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pino & Monte [2023] FedCFamC2F 186

File number(s): MLC 10287 of 2021

Judgment of: JUDGE COPE

Date of judgment: 27 February 2023

Catchwords: FAMILY LAW – parenting – parental responsibility – five year old – where final consent orders made for live with and spend time – discrete issue – parental responsibility for education and health – where father seeks mother be solely responsible for school fees – where mother’s orders sought argued to be a back door attempt to obtain a departure order – order made for equal shared parental responsibility.

Legislation:
Child Support (Assessment) Act1989 (Cth) s 116

Family Law Act 1975 (Cth) Part VII ss 60B, 60CA, 60CC, 61DA, 65AA, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.13

Cases cited:
B v B: Family Reform Act 1995 (1997) FLC 92-755

Chappell & Chappell [2008] FamCAFC 143

Dundas & Blake (2013) FLC 93-552; [2013] FamCAFC 133

Goode & Goode (2006) FLC 93-286

Greeves & Greeves [2013] FamCA 422

Hamill & Hamill [2009] FamCA 1324

Longer & Longer [2013] FMCAfam 257

Marvel v Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101

Pavli & Beffa [2013] FamCA 144

Penski & Kocher [2013] FamCA 255

Saberton & Saberton [2013] FamCAFC 89

VR & RR (2002) FLC 93-099; [2002] FamCA 320

Division: Division 2 Family Law

Number of paragraphs: 143

Date of hearing: 19 October 2022

Place: Melbourne

Counsel for the Applicant: Mr Lovering of Counsel

Solicitor for the Applicant: Armstrong Legal

Counsel for the Respondent: Ms Dunlop of Counsel

Solicitor for the Respondent: Higgins Legal
ORDERS

MLC 10287 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PINO

Applicant

AND:
MS MONTE

Respondent

order made by:

JUDGE COPE

DATE OF ORDER:

27 FEbruary 2023

THE COURT ORDERS THAT:
1.All previous orders be discharged save and except the final consent parenting orders made on 7 June 2022 which are to remain in full force and effect and are to be read in conjunction with these orders.
2.The parents have equal shared parental responsibility for all major long term issues about the care, welfare and development of the child, X born in 2017 (“the child”).
3.All Outstanding Applications are dismissed and the proceedings are removed from the List of Matters awaiting finalisation.

NOTATIONS:
A.The court notes that the father has no objection to the mother selecting the child’s school, on the basis that in the event that the mother selects a private school then she is to be solely responsible for the fees.
B.Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

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 Pino & Monte

Details

AGLC: Pino & Monte [2023] FedCFamC2F 186
Case: [2023] FedCFamC2F 186
Decision Date

CaseChat Overview and Summary

This case involves a dispute between the parties, Mr Pino and Ms Monte, over the parenting arrangements for their five-year-old child, X. The primary issue before the court was the allocation of parental responsibility for the child's education and health. The father sought equal shared parental responsibility with the mother having the sole responsibility for choosing the school and bearing the costs, while the mother sought sole parental responsibility for health and education. The court considered the evidence and submissions from both parties and applied the principles set out in Part VII of the Family Law Act 1975.

The court found that the presumption of equal shared parental responsibility applied, as there were no allegations of abuse or family violence. The court considered whether there were reasons to rebut the presumption, but found that the evidence did not support such a conclusion. The court was satisfied that both parents were child-focused and had the capacity to provide for the child's needs. The court emphasised the importance of communication and compromise between the parents and noted that they had made significant progress in reaching agreements on most issues through mediation and negotiations.

The court made orders for the parents to have equal shared parental responsibility for all major long-term issues about the care, welfare, and development of the child, with the exception of the choice of school. The court found that the father's inability or unwillingness to contribute to the cost of private school fees did not mean that he was not focused on the best interests of the child. The court noted that the mother had agreed to the father's proposal that she choose the school and be solely responsible for the fees, and that the father accepted that the mother may decide the school. However, the court was not persuaded that this meant the father should be excluded from decision-making in every aspect of the child's health and education.

The court acknowledged the importance of the father's involvement in the child's life and the benefits of having both parents contribute to the child's upbringing. The court made orders for the parents to have equal shared parental responsibility, with the mother choosing the school and bearing the costs, and the father remaining involved in the child's education and health decisions. The court was confident that the parents would continue to communicate and cooperate in co-parenting their child.

Orders