Stativa and Stativa - [2014] FCCA 464

FEDERAL CIRCUIT COURT OF AUSTRALIA

STATIVA & STATIVA

[2014] FCCA 464

Catchwords:
FAMILY LAW – Parenting – mother’s application to terminate time between 5 year old child and the father – supported by the Independent Children’s Lawyer – father’s denigration of and undermining of the mother’s parenting – whether there is unacceptable risk of emotional abuse of the child – father seeks order for child to live with him.

Legislation:

Family Law Act 1975

Evidence Act 1995 (Cth)

A & A (1998) FLC 92-800
B & B (1993) FLC 92-357
Burton & Burton (1978) 4 Fam LR 783
Champness & Hansen (2009) FLC ¶93-407
K & B (1994) FLC 92-478
M &M (1998) FLC 91-979
Napier & Hepburn (2006) FLC 93-303
PST & CPR [2006] FMCAfam 36
Re F (Litigants in person guidelines) (2001) FLC 93-072
Re L (Contact:- Domestic Violence) (2000) 2 FLR 334
Rice & Asplund (1979) FLC 90-725
U & U (2002) 2011 CLR 238

Applicant:

MS STATIVA

Respondent:

MR STATIVA

File Number:

MLC 9079 of 2009

Judgment of:

Judge McGuire

Hearing dates:

5 & 6 September 2013

5 & 6 December 2013

17 February 2014

21 February 2014

Date of Last Submission:

6 March 2014

Delivered at:

Melbourne

Delivered on:

11 July 2014

REPRESENTATION

Counsel for the Applicant:

Mr Werner

Solicitors for the Applicant:

Taussig Cherrie Fildes

Solicitors for the Respondent:

Unrepresented

Counsel for the Independent Children's Lawyer:

Ms A Carter

Solicitors for the Independent Children's Lawyer:

Victoria Legal Aid, Melbourne

ORDERS

Final orders

That all extant orders in respect of the child [X] born [in] 2008 (“[X]”) be discharged.
That the mother have sole parental responsibility for [X].
That [X] live with the mother.
Interim orders
That until further order [X] spend time with the father as follows:
(a)Each alternate weekend from the Friday at the end of school (or at 5.00pm if not a school day) until the Sunday at 5.00pm; and
(b)At such other times as may be agreed between the parties from time to time in writing.
Interlocutory orders
That the parents and [X] attend for family therapy as arranged by the Independent Children’s Lawyer and as directed by the Independent Children’s Lawyer and/or the therapist such to be reportable and with the Independent Children’s Lawyer to obtain a report from the family therapist on affidavit prior to the return date.
That pursuant to Section 62(G) of the Family Law Act the parents and [X] attend as directed on Dr N for interview for the preparation of an addendum family report with the interviews for the report not to take place before 1 February 2015 and that the Independent Children’s Lawyer be able to provide relevant documents, including these orders and reasons to Dr N.
These orders authorise Dr N to have access to the court file and all released subpoenaed material and discuss relevant matters with the Family therapist.
The matter be listed for mention and directions in the Federal Circuit Court at Melbourne on a date to be advised in…

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 Stativa and Stativa

Details

AGLC: Stativa and Stativa [2014] FCCA 464
Case: [2014] FCCA 464
Decision Date: 11 July 2014

CaseChat Overview and Summary

In the matter of Stativa and Stativa, heard in the Federal Circuit Court of Australia, Judge McGuire made orders concerning the parental responsibility and living arrangements for a child, [X], born in 2008. The dispute involved the parents' arrangements for their child.

The court was required to determine the final orders regarding parental responsibility and the child's residence, as well as interim orders for the child's time spent with the father. Additionally, the court considered interlocutory orders for therapeutic interventions and expert reports to inform future decisions.

Judge McGuire ordered the discharge of all extant orders concerning [X], granting the mother sole parental responsibility and ordering that [X] live with the mother. Interim orders were made for [X] to spend time with the father on alternate weekends. The court also directed the parents and [X] to attend family therapy and an interview with Dr N for an addendum family report, with the Independent Children’s Lawyer to facilitate these processes and obtain reports. Dr N was authorised to access the court file and subpoenaed material, and to discuss matters with the family therapist. The matter was listed for mention and directions in April 2015, with liberty to apply granted to the parties and the Independent Children’s Lawyer.

Orders

Orders of the court

Final orders

That all extant orders in respect of the child [X] born [in] 2008 (“[X]”) be discharged.

That the mother have sole parental responsibility for [X].

That [X] live with the mother.

Interim orders

That until further order [X] spend time with the father as follows:

(a) Each alternate weekend from the Friday at the end of school (or at 5.00pm if not a school day) until the Sunday at 5.00pm; and

(b) At such other times as may be agreed between the parties from time to time in writing.

Interlocutory orders

That the parents and [X] attend for family therapy as arranged by the Independent Children’s Lawyer and as directed by the Independent Children’s Lawyer and/or the therapist such to be reportable and with the Independent Children’s Lawyer to obtain a report from the family therapist on affidavit prior to the return date.

That pursuant to Section 62(G) of the Family Law Act the parents and [X] attend as directed on Dr N for interview for the preparation of an addendum family report with the interviews for the report not to take place before 1 February 2015 and that the Independent Children’s Lawyer be able to provide relevant documents, including these orders and reasons to Dr N.

These orders authorise Dr N to have access to the court file and all released subpoenaed material and discuss relevant matters with the Family therapist.

The matter be listed for mention and directions in the Federal Circuit Court at Melbourne on a date to be advised in April 2015.

There will be liberty to the parties or either of them or the Independent Children’s Lawyer to apply.

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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