Salambo and Olenghi - [2016] FamCA 994

FAMILY COURT OF AUSTRALIA

SALAMBO & OLENGHI

[2016] FamCA 994

FAMILY LAW – CHILDREN – Final orders – where the child should live with the mother and the mother have sole parental responsibility for her – where the mother asserts the father perpetrated family violence against her – where the father unilaterally removed the child from Country C to New Zealand – where the mother did not see the child for almost two years – where it was ordered that the child be returned to the mother –where the mother and child moved to Australia – where the father relocated to Australia – where the father has not seen the child in almost three years – where the father lacks insight into the detriment caused to the child as a result of his actions –where there is a benefit to the child in having a meaningful relationship with her father – where the risks to the child are able to be managed with appropriate safeguards –where the child should be given appropriate counselling – where the time with the father should proceed on a gradual basis – orders as set out at the commencement of the reasons.

Family Law Act 1975 (Cth)

Baglio & Baglio [2013] FamCA 105
Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] FamCAFC 21
Mazorski & Albright [2007] FamCA 520
MRR v GR (2010) 240 CLR 461

APPLICANT:

Ms Salambo

RESPONDENT:

Ms Olenghi

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

2341

2010

DATE DELIVERED:

23 November 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

11, 12, 13, 14 July & 11 August & 2 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Roberts

SOLICITOR FOR THE APPLICANT:

Angela Ferdinandy

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Anderson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

That the mother have sole parental responsibility for the child B born … 2007 (“the child”).
That the child live with the mother.
That the mother do advise the father within fourteen (14) days of any decision made by her in respect of major issues relating to the child’s education and medical treatment.
That the father do spend time with the child on a supervised basis at the Suburb D Children’s Contact Service or such other contact centre as the parties may agree for a period of two (2) hours each fortnight at such times and on such dates as shall be nominated by the said service and for that purpose:-
(a) Each party shall:-
(i)contact the relevant centre within seven (7) days of this order and arrange for an appointment to assess suitability;
(ii)comply with the requirements of the contact centre;
(iii)comply with all reasonable requests or directions of the director of the contact centre;
(b)After having completed six (6) supervised sessions, the father is to obtain a report from the centre in relation to his time…

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 Salambo and Olenghi

Details

AGLC: Salambo and Olenghi [2016] FamCA 994
Case: [2016] FamCA 994
Decision Date: 23 November 2016

CaseChat Overview and Summary

This matter concerned parenting orders made by Berman J in relation to the child B. The dispute involved the mother and the father, with the court determining the arrangements for the child's residence, time spent with each parent, and decision-making responsibilities.

The court was required to determine the primary issues of who should have sole parental responsibility for the child, where the child should live, and the nature and extent of the father's time with the child. Additionally, the court had to consider the terms of communication between the parents, restrictions on discussing the proceedings with the child or at the child's school, and prohibitions on denigrating the other parent in the child's presence. The court also addressed the father's ability to remove the child from South Australia and the Commonwealth of Australia, and the placement of the child on the Family Law Watch List.

Berman J ordered that the mother have sole parental responsibility for the child and that the child live with the mother. The father was granted supervised time with the child at a children's contact service, with a view to transitioning to unsupervised time. This transition involved the child attending sessions with practitioners to prepare for unsupervised time with the father. The court also made detailed orders regarding the gradual increase in the duration and frequency of the father's time with the child, and specified the locations for handovers. Injunctions were granted to prevent the parties from discussing the proceedings with the child or at the child's school, denigrating each other, and restricting their communication methods. The father was restrained from removing the child from South Australia, and both parents were restrained from removing the child from the Commonwealth of Australia without further court order. The child was placed on the Family Law Watch List.

Orders

Orders of the court

That the mother have sole parental responsibility for the child B born … 2007 (“the child”).

That the child live with the mother.

That the mother do advise the father within fourteen (14) days of any decision made by her in respect of major issues relating to the child’s education and medical treatment.

That the father do spend time with the child on a supervised basis at the Suburb D Children’s Contact Service or such other contact centre as the parties may agree for a period of two (2) hours each fortnight at such times and on such dates as shall be nominated by the said service and for that purpose:-

(a) Each party shall:-

(i) contact the relevant centre within seven (7) days of this order and arrange for an appointment to assess suitability;

(ii) comply with the requirements of the contact centre;

(iii) comply with all reasonable requests or directions of the director of the contact centre;

(b) After having completed six (6) supervised sessions, the father is to obtain a report from the centre in relation to his time spent with the child with the expenses in relation to the obtaining of that report (if any) to be paid by the father.

That thereafter the parties do all things necessary to arrange for the child to attend upon Ms E or Ms F (“the practitioners”) at such times and upon such conditions as may be directed by either practitioner, for the purpose of preparing the child for unsupervised time with the father.

That subject to the parties being able to obtain a mental health care plan to cover the cost of the involvement of the relevant practitioner, any fee that is charged over and above any payment as may be afforded by Medicare shall be met by the father.

That following the child’s attendance upon the relevant practitioner as may be directed by the said practitioner but in any event for not more than four (4) sessions, the father shall spend time with the child as follows:-

(a) For a period of not less than six (6) months each alternate Saturday or Sunday for a period of four (4) hours at times as may be agreed between the parties but in default of agreement from 1 pm to 5 pm on each alternate Sunday;

(b) Thereafter for a period of not less than six (6) months each alternate Saturday or Sunday for a period of not less than eight (8) hours at times as may be agreed between the parties but in default of agreement from 9 am to 5 pm on each alternate Sunday;

(d) Such other time as the parties may agree.

That all handovers shall occur at the Suburb G Children’s Contact Service and in the event that such service is not available THEN in the car park of the said service.

That the parties be restrained and an injunction be granted restraining each of them from:-

(a) Discussing the proceedings with the child or allowing any other person to do so SAVE AND EXCEPT as may be permitted by the practitioners or any worker or supervisor attached to the relevant children’s contact service;

(b) Denigrating the other party to or in the presence of the child or allowing any other person to do so;

(c) Discussing these proceedings or the allegations made in these proceedings with staff or parents at the child’s school (SAVE AND EXCEPT to notify the school staff about the arrangements provided by this order);

(d) Communicating with each other by telephone or SMS text message SAVE AND EXCEPT as may be permitted by this order or in respect of urgent parenting arrangements that may arise from time to time.

10.

That the father be restrained and an injunction be granted restraining him from removing the child from the State of South Australia.

11.

That the parties be restrained and an injunction be granted restraining each of them from removing the child from the Commonwealth of Australia without further order of the Court.

12.

That the name of the child be placed on the Family Law Watch List at all points of arrival and departure in the Commonwealth of Australia.

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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