Savina and Camilleri - [2009] FMCAfam 943

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAVINA & CAMILLERI

[2009] FMCAfam 943

FAMILY LAW – Parenting – 7 year old child – mother deceased – maternal grandmother seeking to spend time with child – strained relationship between father and maternal grandmother – stress of child spending time with maternal grandmother.

Family Law Act 1975, ss.60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 60CC(4), 61DA, 64B, 65C, 65D, 65DAA

In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713
McKenzie & Edwards [2006] FamCA 1314
Potts & Bims & Ors [2007] FamCA 394
Sampson & Jacks [2008] FamCA 176
Jacks & Sampson [2008] FamCAFC 173

Applicant:

MS SAVINA

Respondent:

MR CAMILLERI

File Number:

WOC 565 of 2008

Judgment of:

Monahan FM

Hearing date:

26 August 2009

Date of Last Submission:

27 August 2009

Delivered at:

Wollongong

Delivered on:

17 December 2009

REPRESENTATION

Solicitor for the Applicant:

Mr Autore

Counsel for the Respondent:

Mr Maurice

Solicitors for the Respondent:

DGB Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Macpherson

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

THE COURT ORDERS THAT

The respondent MR CAMILLERI (“the father”) have sole parental responsibility in relation to the child [X] (“[X]” or “the child”) born [in] 2002.
[X] live with the father.
[X] spend time with the applicant MS SAVINA (“the maternal grandmother”) at such times as agreed between the father and maternal grandmother.
The maternal grandmother may post to [X], or otherwise cause to be forwarded to [X], birthday and/or Christmas cards and/or presents from time to time.
The father shall give to [X] all items received as is referred to in Order 4 herein and shall give those items to the child within twenty-four (24) hours of his receipt of such items.
Each party is retrained from making critical, derogatory remarks about the other party or members of their family in the presence or within the hearing of the child.
Each party do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other party or members of their family in the presence or within the hearing of the child.
Each party forthwith make contact with Relationships Australia at 63B Market Street Wollongong to arrange an appointment as soon as reasonably practicable for an initial post separation parenting assessment.
Each party forthwith confirm to the Independent Children’s Lawyer that the appointment required by Order 8 herein has been made.
The parties attend all appointments and complete all necessary assessments as required by Relationships Australia at any reasonable location and time as nominated by that organization.
If assessed as suitable by Relationships Australia to attend counselling, mediation and/or a specified program (which may include a child inclusive program), each party must attend and undertake such counselling, mediation and/or specified program (as directed) as soon as is reasonably practicable.
Following confirmation by both parties of the securing of an appointment with Relationships Australia pursuant to Order 9 herein, the appointment of the Independent Children’s Lawyer 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 Savina and Camilleri

Details

AGLC: Savina and Camilleri [2009] FMCAfam 943
Case: [2009] FMCAfam 943
Decision Date: 17 December 2009

CaseChat Overview and Summary

In the Family Court of Australia, the case of Savina v Camilleri was heard, involving a dispute over parental responsibility for a child born in 2002. The applicant, Ms. Savina, the child’s maternal grandmother, sought sole parental responsibility and regular contact with the child, who was living with the father, Mr. Camilleri. The court was tasked with determining the appropriate arrangements for the child’s care and contact with the maternal grandmother, while also addressing the communication difficulties between the parties.

The central legal issue was whether the child’s best interests were served by granting the maternal grandmother sole parental responsibility or by maintaining the current arrangement with the father, who had primary care. The court had to consider various factors, including the child’s health, welfare, and development, and the capacity of both parties to provide for the child’s needs. The court also needed to assess the impact of the parties' communication and potential for co-operation on the child’s wellbeing.

The court determined that the child's best interests were best served by maintaining the father's sole parental responsibility but allowing the maternal grandmother to have regular contact with the child. The court noted the importance of establishing a co-operative parenting arrangement to ensure the responsible parenting of the child. It ordered that both parties refrain from making derogatory remarks about each other in the child's presence and require them to attend a post-separation parenting assessment and any recommended counselling or mediation. The court also mandated that the Independent Children’s Lawyer be discharged once both parties confirmed their appointment with Relationships Australia. All other applications were dismissed, and the court provided specific details on the obligations and consequences of non-compliance with these orders.

Orders

Orders of the court

The respondent MR CAMILLERI (“the father”) have sole parental responsibility in relation to the child [X] (“[X]” or “the child”) born [in] 2002.

[X] live with the father.

[X] spend time with the applicant MS SAVINA (“the maternal grandmother”) at such times as agreed between the father and maternal grandmother.

The maternal grandmother may post to [X], or otherwise cause to be forwarded to [X], birthday and/or Christmas cards and/or presents from time to time.

The father shall give to [X] all items received as is referred to in Order 4 herein and shall give those items to the child within twenty-four (24) hours of his receipt of such items.

Each party is retrained from making critical, derogatory remarks about the other party or members of their family in the presence or within the hearing of the child.

Each party do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other party or members of their family in the presence or within the hearing of the child.

Each party forthwith make contact with Relationships Australia at 63B Market Street Wollongong to arrange an appointment as soon as reasonably practicable for an initial post separation parenting assessment.

Each party forthwith confirm to the Independent Children’s Lawyer that the appointment required by Order 8 herein has been made.

10.

The parties attend all appointments and complete all necessary assessments as required by Relationships Australia at any reasonable location and time as nominated by that organization.

11.

If assessed as suitable by Relationships Australia to attend counselling, mediation and/or a specified program (which may include a child inclusive program), each party must attend and undertake such counselling, mediation and/or specified program (as directed) as soon as is reasonably practicable.

12.

Following confirmation by both parties of the securing of an appointment with Relationships Australia pursuant to Order 9 herein, the appointment of the Independent Children’s Lawyer be discharged.

13.

All extant applications be otherwise dismissed.

AND THE COURT DIRECTS THAT:

The Independent Children’s Lawyer is at liberty to provide Relationships Australia with a copy of the family report of Dr Anne Hollingworth dated 3 June 2009 and a copy of the reasons for judgment delivered 17 December 2009.

AND THE COURT NOTES THAT:

B. It is intended that the counselling, mediation and/or specified program referred to in Order 11 herein address the parties’ communication difficulties. The aim is to re-establish a co-operative and supporting parenting arrangement necessary for the responsible parenting of the child.

C. Pursuant to ss.65DA(2) and 62B 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 Attachment A and these particulars are included in these Orders.

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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