FEDERAL CIRCUIT COURT OF AUSTRALIA
Scalero & Belmonti [2021] FCCA 1073
File number(s): BRC 14212 of 2019 Judgment of: JUDGE MIDDLETON Date of judgment: 20 May 2021 Catchwords: FAMILY LAW- parenting – where there is one child of the relationship – where there are findings of family violence - whether the father poses an unacceptable risk of harm to the child – where an order for no time is made. Legislation: Family Law Act 1975 (Cth) pt VII ss 60B, 60CC, 61DA Cases cited: Amador & Amador [2009] FamCAFC 196
Betros & Betros [2017] FamCAFC 90
M & M [1998] FamCA 1742
Mazorski v Albright [2007] FamCA520
Number of paragraphs: 96 Date of last submission/s: 5 May 2021 Date of hearing: 23 & 24 March 2021 Place: Brisbane Counsel for the Applicant: Ms Bertone Solicitor for the Applicant: McNamara Law Counsel for the Respondent: Mr Neaves Solicitor for the Respondent: GLG Legal Counsel for the Independent Children's Lawyer: Mr Hughes Solicitor for the Independent Children's Lawyer: Forest Glen Lawyers ORDERS
BRC 14212 of 2019 BETWEEN: MS SCALERO
Applicant
AND: MR BELMONTI
Respondent
ORDER MADE BY:
JUDGE MIDDLETON
DATE OF ORDER:
20 MAY 2021
THE COURT ORDERS:
1.The mother have sole parental responsibility for the child X born in 2017 (the child).
2.The child live with the mother.
3.The child spend no time with the father.
4.All previous orders are discharged.
The Independent Children’s Lawyer is discharged.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Scalero & Belmonti is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MIDDLETON
This is a parenting matter involving X born in 2017, she is three years and 11 months old at the time of hearing the matter.
The Applicant Mother (the mother, aged 40) and the Independent Children’s Lawyer (the ICL) seek orders that would prevent X having any relationship with the Respondent Father (the father, aged 47).
For the reasons that follow, I am satisfied that it is in the best interests of this child for her to have no contact with her father at all.
The parties commenced cohabitation in 2003, married in 2007 and separated on a final basis on 25 November 2018. The parties lived under one roof after separation until the mother left the former matrimonial home on 27 April 2019.
X has not seen her father since 31 May 2019.
The mother alleges that the father perpetrated significant family violence in the form of coercive controlling behaviour, threats to kill her, threats to have her and her mother bashed and gang raped and repeated derogatory comments towards her. Furthermore, the mother alleges that the child is petrified of the father due to his aggressive behaviour toward the child including…
Continue reading Scalero & Belmonti
Sign in free to access the full text
- AGLC
- Scalero & Belmonti [2021] FCCA 1073
- Case
- [2021] FCCA 1073
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the child, specifically regarding parental responsibility, living arrangements, and time spent with each parent. This involved assessing the nature of the relationship between the child and each parent, and the father's past involvement and interest in the child's life.
Middleton J found the father to be a dishonest and unconvincing witness, concluding he was not credible. The court noted the child had a loving and meaningful relationship with her mother, while there was no evidence of a relationship with the father, and indeed, the father had shown a distinct lack of interest in the child. The father had not seen the child since May 2019. The court considered the definition of a "meaningful relationship" as one that is important, significant, and valuable to the child, applying this to the evidence. The evidence indicated the father had not wanted a child, was happy about previous miscarriages, and played a minimal role in the child's early life, even expressing frustration at noise from the child.
The court ordered that the mother have sole parental responsibility for the child, that the child live with the mother, and that the child spend no time with the father. All previous orders were discharged, and the Independent Children’s Lawyer was discharged.
Orders
Orders of the court
BRC 14212 of 2019
BETWEEN:
MS SCALERO
Applicant
AND:
MR BELMONTI
Respondent
ORDER MADE BY:
JUDGE MIDDLETON
DATE OF ORDER:
20 MAY 2021
THE COURT ORDERS:
1. The mother have sole parental responsibility for the child X born in 2017 (the child).
2. The child live with the mother.
3. The child spend no time with the father.
4. All previous orders are discharged.
The Independent Children’s Lawyer is discharged.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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
Overall I formed the view that the father was a dishonest historian and a very poor witness. He simply was not credible.Primary Considerations The child has a loving and meaningful relationship with her mother. There is no evidence to support a finding that the child has any relationship with the father and indeed the evidence satisfies me that the father had a distinct lack of interest in the child when the parties lived together. The child has not seen her father since 31 May 2019. There were a number of times when the father was being cross-examined that I formed the view that he was more aggrieved at the loss of his two dogs “F” and “G” than he was at the loss of his relationship with his child. Justice Brown in the decision of Mazorski v Albright [p2007] FamCA520 at [25] and [26] said:[25] the Macquarie dictionary, 4th ed, Macquarie University press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.[26] what these definition convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant”. Which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations in the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative objective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in the best interest, substantial and significant. The evidence of the mother and maternal grandmother were that the father did not want to have a child with the mother. Indeed she miscarried on a number of occasions. It was the mother’s evidence, together with the maternal grandmother’s evidence, that the father was happy about the miscarriages. The father conceded that he did not want a child. I am satisfied on the evidence of the mother and maternal grandmother that the father played a very little role with the child when she was first born. Indeed the father gave evidence under cross-examination, that the first two weeks was a bonding experience for the mother only. It is an agreed fact between these parties that the father worked night shifts and that he would sleep until 1:00pm or 2:00pm most days. The father conceded that he wanted the home to be quiet whilst he slept. Whilst he denied at all times being angry, he did accept that it was frustrating when the house was noisy. The mother gave evidence that the father would yell and scream if he was woken by the child crying and that the child became terrified of loud noises. The father conceded that he raised his voice but denied ever screaming in the faces of either the mother or the child.