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Rocacelli and Seles (No 2)

Rocacelli and Seles (No 2)

Case [2019] FamCA 296 10 May 2019

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FAMILY COURT OF AUSTRALIA

ROCACELLI & SELES (NO. 2)

[2019] FamCA 296

FAMILY LAW – CHILDREN – Parenting orders – Where the father’s application for an adjournment to obtain legal representation dismissed – Where the father has exposed the child to family violence – Where the father has a significant criminal history – Where the court satisfied the father poses a risk to the child by continually exposing her to violence – Where the court satisfied the father presents an unacceptable risk of harm to the child face-to-face, unsupervised – Where the child will gain benefits from having a relationship with the father as long as it does not expose her to harm –Where joint decision making not practicable given coercive and controlling family violence – Order that the mother have sole parental responsibility for the child – Order that the child live with the mother – Order for regime of communication between the father and child.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 79ZN
Evidence Act 1995 (Cth) ss 140

Romano & Simic [2019] FamCA 105

Bloch v Bloch (1981) 180 CLR 390
Elgin & Elgin [2015] FamCAFC 15

Sali v SPC Ltd (1993) 67 ALJR 841
AON Risk Services Australia Ltd v ANU (2009) 239 CLR 175
Forster & Forster [2014] FamCAFC 88
Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
K v R (1997) 22 FamLR 592
Re W [2004] FamCA 768
Harridge & Harridge [2010] FamCA 445
Re Andrew (1996) FLC 92-692
Moose & Moose (2008) FLC 93-375
Fitzpatrick & Fitzpatrick (2005) FLC 93-227
Slater & Wright (2013) 48 FamLR 573
Gorman & Huffman [2016] FamCAFC 174

APPLICANT:

Mr Rocacelli

RESPONDENT:

Ms Seles

INDEPENDENT CHILDREN’S LAWYER:

Ms Falcomer

FILE NUMBER:

DGC

1007

2017

DATE DELIVERED:

10 May 2019

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

8 and 9 April 2019

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Mr Trevino

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Spina Kyle Waldon Solicitors

Orders

To the extent that they are inconsistent with these orders, all previous parenting orders made in these proceedings are forthwith discharged (noting that the Airport Watch List order made 9 May 2007 therefore remains in force).
That X born … 2008 (“the child”) live with the mother.
The mother has sole parental responsibility for major decisions relating to the child’s long term care, welfare and development.
The father have supervised communication with the child by electronic means, for one occasion, during each school holiday period, for a minimum of half an hour and a maximum of one hour, such time to be…

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 Rocacelli and Seles (No 2)

Details

AGLC: Rocacelli and Seles (No 2) [2019] FamCA 296
Case: [2019] FamCA 296
Decision Date: 10 May 2019

CaseChat Overview and Summary

In *Rocacelli and Seles (No 2)*, Tree J of the Family Court of Australia considered parenting orders concerning a child born in 2008. The proceedings involved a dispute between the mother and the father regarding the child's living arrangements, parental responsibility, and communication between the child and the father.

The court was required to determine the specific terms of parenting orders, including where the child would live, who would hold parental responsibility for major decisions, and the nature and extent of communication permitted between the father and the child. The court also had to consider the role of the Independent Children's Lawyer and the provision of Family Reports.

Tree J ordered that the child live with the mother and that the mother have sole parental responsibility for major decisions concerning the child's long-term care, welfare, and development. The father was granted supervised electronic communication with the child once per school holiday period, with the mother to nominate the supervisor and bear the expense. The child was permitted to communicate with the father electronically at any time, supervised by the mother or her nominee. The father could send cards and gifts for special occasions and write to the child once a month, while the child could write to the father as often as she wished. The mother was permitted to provide Family Reports to professionals engaged for the child. The Independent Children's Lawyer was discharged, and all other extant applications were dismissed.

Orders

Orders of the court

To the extent that they are inconsistent with these orders, all previous parenting orders made in these proceedings are forthwith discharged (noting that the Airport Watch List order made 9 May 2007 therefore remains in force).

That X born … 2008 (“the child”) live with the mother.

The mother has sole parental responsibility for major decisions relating to the child’s long term care, welfare and development.

The father have supervised communication with the child by electronic means, for one occasion, during each school holiday period, for a minimum of half an hour and a maximum of one hour, such time to be supervised by a Children’s Contact Centre nominated by the mother and at the mother’s expense.

The child be at liberty to communicate with the father by electronic means (for example telephone, Skype or Facetime) at all times as she may choose, for such periods of time as she may choose, with such communication to be supervised by the mother, or such other person and in such a manner that she may nominate.

The father be permitted to send cards and gifts to the child to mark her special occasions including her birthday, Christmas and Easter by sending to a PO Box address nominated by the mother.

The mother will provide her PO Box address for the purpose of order 6 to the Independent Children's Lawyer within 30 days of the date of these orders.

The father be permitted to write to the child not more than once in each month and the child is permitted to write to the father as often as she wishes.

Pursuant to s 121(9) of the Family Law Act 1975, the mother may provide a copy of the Family Reports prepared in this matter to any psychologist or counsellor engaged for, and on behalf of, the child.

10.

For the purpose of these orders, the father will keep the mother informed of his relevant contact details by sending them to the mother’s PO Box address.

11.

The Independent Children's Lawyer is discharged with the thanks of the court, upon the provision of the mother’s PO Box address to the father.

12.

Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.

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.

Citations

AGLC Citation

Rocacelli and Seles (No 2) [2019] FamCA 296

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 17 of 17 shown

Rocacelli & Seles
[2019] FamCA 105 Para 3

…also sought. On 14 February 2019 I heard that interim application, and for reasons given on 28 February 2019, dismissed it.[1] [1] Rocacelli & Seles [2019] FamCA 105.…
Elgin & Elgin
[2015] FamCAFC 155 Para 5

…he lack of legal representation may, in an appropriate case, compel an adjournment.[5] [2] Bloch v Bloch (1981) 180 CLR 390 at 395; Elgin & Elgin [2015] FamCAFC 155. [3] Sali v SPC Ltd (1993) 67 ALJR 841 at 843. [4] Sali v SPC Ltd (supra) ; AON Risk Services Australia Ltd v ANU (2009) 239 CLR 175 at [94]. [5]See for…
Banks & Banks
[2015] FamCAFC 36 Para 5

…a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[6] [6] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.…
MEDLON & MEDLON
[2015] FamCAFC 15

…Romano & Simic [2019] FamCA 105 Bloch v Bloch (1981) 180 CLR 390 Elgin & Elgin [2015] FamCAFC 15 Sali v SPC Ltd (1993) 67 ALJR 841 AON Risk Services Australia Ltd v ANU (2009) 239 CLR 175 Forster & Forster [2014] FamCAFC 88 Banks & Banks [2015] FamCAFC 36 Mauldera & Orbel (2014) FLC 93-602 Wacando v The Commonwealth…
Harridge & Harridge
[2010] FamCA 445 Para 3

…In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra) , proceeded to adopt the following list of inquiries in relation to risk assessment:[8] (1) What harmful outcome is potentially present in this situation? (2) What is the probability of this outcome comi…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 5

…lgin & Elgin [2015] FamCAFC 155. [3] Sali v SPC Ltd (1993) 67 ALJR 841 at 843. [4] Sali v SPC Ltd (supra) ; AON Risk Services Australia Ltd v ANU (2009) 239 CLR 175 at [94]. [5]See for example Forster & Forster [2014] FamCAFC 88 at [8]ff, accepting that there were unusual facts in that case.…
S v Australian Crime Commission
[2006] FCAFC 5 Para 6

…unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than…
Re W (Sex abuse: standard of proof)
[2004] FamCA 768 Para 3

…“inexact proofs, indefinite testimony or indirect inferences.”[7] [7] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].…
Sali v SPC Ltd
[1993] HCA 47 Para 5

…an appropriate case, compel an adjournment.[5] [2] Bloch v Bloch (1981) 180 CLR 390 at 395; Elgin & Elgin [2015] FamCAFC 155. [3] Sali v SPC Ltd (1993) 67 ALJR 841 at 843. [4] Sali v SPC Ltd (supra) ; AON Risk Services Australia Ltd v ANU (2009) 239 CLR 175 at [94]. [5]See for example Forster & Forster [2014] FamCAF…
M v M
[1988] HCA 68 Para 2

…In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings, albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows: 25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denyin…
Bloch v Bloch
[1981] HCA 56 Para 5

…st in the most efficient uses of court resources;[4] ·The lack of legal representation may, in an appropriate case, compel an adjournment.[5] [2] Bloch v Bloch (1981) 180 CLR 390 at 395; Elgin & Elgin [2015] FamCAFC 155. [3] Sali v SPC Ltd (1993) 67 ALJR 841 at 843. [4] Sali v SPC Ltd (supra) ; AON Risk Services Austra…
Forster & Forster
[2014] FamCAFC 88 Para 5

…R 841 at 843. [4] Sali v SPC Ltd (supra) ; AON Risk Services Australia Ltd v ANU (2009) 239 CLR 175 at [94]. [5]See for example Forster & Forster [2014] FamCAFC 88 at [8]ff, accepting that there were unusual facts in that case.…
Wacando v The Commonwealth
[1981] HCA 60 Para 6

…3-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislati…
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd
[1992] HCA 66 Para 2

…In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be pro…
Gorman & Huffman & Anor
[2016] FAMCAFC 174 Para 1

…ders. [9] Moose & Moose (2008) FLC 93-375; Fitzpatrick & Fitzpatrick (2005) FLC 93-227; Slater & Wright (2013) 48 FamLR 573; Gorman & Huffman [2016] FamCAFC 174.…
(1987) 1 WLR 1461
(1987) 1 WLR 1461 Para 2

…s) (1986) FLC 91-758, at p 75,545), a "real risk" ( Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" ( In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. I…
Leveque v Leveque
1 WLR 1461 Para 2

…M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" ( B. v. B . (Access) (1986) FLC 91-758, at p 75,545), a "real risk" ( Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" ( In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65... 10 mentions (from Para 9)
Evidence Act 1995 (Cth)
140 3 mentions (from Para 1)
Family Law Rules 2004 (Cth)
1 mention