RONCALLI & RONCALLI - [2016] FamCA 1090

FAMILY COURT OF AUSTRALIA

RONCALLI & RONCALLI

[2016] FamCA 1090

FAMILY LAW – CHILDREN – Interlocutory Applications – Parental Responsibility – Where the mother sought the allocation of parental responsibility to the residential parent – Where the father sought no order as to parental responsibility – Where the parents are incapable of sharing parental responsibility – Where there are cross allegations of violent and abusive conduct – Decided the presumption of equal shared parental responsibility does not apply – Ordered sole parental responsibility

FAMILY LAW – CHILDREN – Interlocutory Applications – With whom the child should live – Where the mother is not currently working – Where the mother was the main carer – Where the children are not at material risk of harm in her care – Ordered the children live with the mother

FAMILY LAW – CHILDREN – Interlocutory Applications – Time with the non-residential parent – Where mother proposed the youngest child spend less time with the father than the eldest two children – Where there is no social science evidence before the court – Where changeovers may give rise to parental conflict – Decided no differentiation between children – Decided changeovers should be minimised

Family Law Act 1975 (Cth) ss, 60B, 60CA, 60CC, 61C, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC

Family Law Rules 2004 (Cth) r 5.09

Banks & Banks (2015) FamCAFC 36
Goode & Goode (2006) FLC 93-286
RCB v Forrest & Ors (2012) 247 CLR 304

APPLICANT:

Ms Roncalli

RESPONDENT:

Ms Roncalli

FILE NUMBER:

SYC

6230

2016

DATE DELIVERED:

30 November 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

30 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rosic

SOLICITOR FOR THE APPLICANT:

Turner Freeman Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Karras Partners Lawyers

Orders

IT IS ORDERED THAT:

Leave is refused for the applicant mother to rely on the following affidavits in today’s proceedings:
a. her affidavit filed 27 September 2016;
b. the affidavit of Ms B filed 24 November 2016; and

c. the affidavit of Ms C filed 22 November 2016.

PENDING FURTHER ORDER IT IS FURTHER ORDERED THAT:

The mother shall have sole parental responsibility in respect of all “major long-term issues” (as defined in the Family Law Act 1975 (Cth)) for the children:
a.D Roncalli born … 2006;
b.E Roncalli born … 2009; and

c.F Roncalli born … 2014.

The children shall live with the mother.
The parties shall take all reasonable steps to ensure the children spend time with the father as follows, unless otherwise agreed:

a.From 5:00 pm Thursday 8 December 2016 to 8:45 am Monday 12 December 2016;
b.From 5:00 pm Thursday 22 December 2016 to 5:00 pm Saturday 24 December 2016;

c.From 9:00 am Sunday 1 January 2017 to 5:00 pm Sunday 15 January 2017;

d.During New South Wales school terms, as from 2017, each alternate week from 5:00 pm Thursday until 8:45 am Monday, commencing on the first Thursday of each school term;

e.For…

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: [2016] FamCA 1090
Decision Date: 30 November 2016

CaseChat Overview and Summary

In *Roncalli & Roncalli*, Austin J of the Federal Circuit Court of Australia considered applications concerning parental responsibility and the living arrangements for three children. The mother sought the allocation of parental responsibility to herself as the residential parent, while the father sought no order regarding parental responsibility. The court was faced with cross-allegations of violent and abusive conduct between the parents, indicating an inability to share parental responsibility.

The primary legal issues before the court were whether the presumption of equal shared parental responsibility applied, with whom the children should live, and the extent of time the children should spend with the non-residential parent. The court also had to consider the mother's application to rely on certain affidavits, which was ultimately refused.

His Honour determined that the presumption of equal shared parental responsibility did not apply due to the parents' demonstrated inability to co-parent and the allegations of violence. Consequently, the court ordered that the mother have sole parental responsibility for all major long-term issues concerning the children. The court found that the children were not at material risk of harm in the mother's care, noting she was the main carer and was not currently working, and therefore ordered that the children live with her. Regarding time with the father, the court decided against differentiating the time arrangements for the youngest child compared to the elder two, given the lack of social science evidence and the potential for parental conflict arising from changeovers. The court's orders detailed specific arrangements for the children to spend time with the father, including provisions for changeovers and communication.

Orders

Orders of the court

IT IS ORDERED THAT:

Leave is refused for the applicant mother to rely on the following affidavits in today’s proceedings:

a. her affidavit filed 27 September 2016;

b. the affidavit of Ms B filed 24 November 2016; and

c. the affidavit of Ms C filed 22 November 2016.

PENDING FURTHER ORDER IT IS FURTHER ORDERED THAT:

The mother shall have sole parental responsibility in respect of all “major long-term issues” (as defined in the Family Law Act 1975 (Cth)) for the children:

a. D Roncalli born … 2006;

b. E Roncalli born … 2009; and

c. F Roncalli born … 2014.

The children shall live with the mother.

The parties shall take all reasonable steps to ensure the children spend time with the father as follows, unless otherwise agreed:

a. From 5:00 pm Thursday 8 December 2016 to 8:45 am Monday 12 December 2016;

b. From 5:00 pm Thursday 22 December 2016 to 5:00 pm Saturday 24 December 2016;

c. From 9:00 am Sunday 1 January 2017 to 5:00 pm Sunday 15 January 2017;

d. During New South Wales school terms, as from 2017, each alternate week from 5:00 pm Thursday until 8:45 am Monday, commencing on the first Thursday of each school term;

e. For the first week of the Autumn, Winter and Spring New South Wales school holidays, commencing at 5:00 pm on the last day of term and concluding at 5:00 pm on the second Saturday thereafter;

f. For two weeks in the Summer New South Wales school holidays commencing at the end of 2017, commencing at 3:00 pm on Christmas Day and concluding at 5:00 pm on 8 January 2017.

For the purposes of implementing Order 4 hereof, the parties shall exchange the children:

a. At G Park, Suburb H New South Wales, at the commencement of the children’s visits with the father;

b. At the eldest child’s school whenever the children’s visits with the father end on a school morning; and

c. At G Park, Suburb H New South Wales, whenever the children’s visits with the father end on a non-school day.

The mother is restrained from consuming any alcohol whilst the children are in her care or for a period of 12 hours preceding the children’s return to her care.

Unless otherwise agreed the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:

a. the father each Wednesday at 6:00 pm when the children are living with the mother and for that purpose the father shall telephone the children on the telephone number provided to him by the mother and the mother shall ensure that the children are able to receive the father’s calls on that number at that time; and

b. the mother each Wednesday at 6:00 pm when the children are spending time with the father and for that purpose the mother shall telephone the children on the telephone number provided to her by the father and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.

Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

The parties shall forthwith inform the other and keep the other informed in writing of their respective current residential address and mobile telephone number.

10.

Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

11.

The mother shall authorise and request the Principal of any preschool or school attended by the children to provide the father at his expense copies of all school reports in respect of the children.

12.

Pursuant to s 62B and s 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto which forms part of these orders.

13.

Save as to costs, otherwise:

a. The application for interim relief contained within the Amended Application filed on 22 November 2016 is dismissed;

b. The application for relief contained within Exhibit M4 is dismissed;

c. The application for interim relief contained within the Response filed on 11 November 2016 is dismissed;

d. The application for relief set out within Exhibit F7 is dismissed; and

e. Any and all remaining applications for interim relief are dismissed.

14.

No order as to costs.

NOTATIONS

A. The respondent father does not require the publication of reasons for the dismissal of his costs application reflected in Order 14 hereof.

B. The solicitor for the applicant mother informs the court that she will not charge the applicant mother any costs for the preparation of the affidavits for which she was denied leave to rely upon in the interim hearing.

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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