Stativa & Stativa

Case [2015] FamCAFC 170

FAMILY COURT OF AUSTRALIA

STATIVA & STATIVA [2015] FamCAFC 170

FAMILY LAW – APPEAL – CHILDREN – Parental responsibility – Where the trial judge ordered that the mother have sole parental responsibility for the child – Where the father significantly denigrates the mother in front of the child – Where the father’s behaviour constitutes a risk of psychological harm to the child – Where the father lacks insight into the effect of his behaviour and the emotional needs of the child – Where the father alleges bias against the trial judge – Where no evidence of bias is provided – Whether the trial judge gave appropriate weight to the evidence of the father – Where the trial judge preferred the evidence of the mother to that of the father – Where the appeal is wholly without merit – Appeal dismissed.

FAMILY LAW – APPEAL – Application for summary dismissal or alternatively security of costs – Where the court considered the merits of the substantive appeal rather than the application for summary dismissal – Where the appeal was dismissed.

Family Law Act 1975 (Cth) ss 65Y, 117
Bigg and Suzi (1998) FLC 92-799
Edwards v Noble (1971) 125 CLR 296
Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541
Pelerman and Pelerman (2000) FLC 93-037
APPELLANT: Mr Stativa
RESPONDENT: Ms Stativa
FILE NUMBER: MLC 9079 of 2009
APPEAL NUMBER: SOA 47 of 2014
DATE DELIVERED: 8 September 2015
PLACE DELIVERED: Sydney
PLACE HEARD: Melbourne
JUDGMENT OF: Ainslie-Wallace, Murphy & Aldridge JJ
HEARING DATE: 14 July 2015
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 11 July 2014
LOWER COURT MNC: [2014] FCCA 464

REPRESENTATION

THE APPELLANT: In person
SOLICITOR FOR THE RESPONDENT: Taussig Cherrie Fildes
COUNSEL FOR THE RESPONDENT: Mr Werner

Orders

  1. The respondent mother’s application in an appeal filed on 9 June 2015 is dismissed.

  2. The appeal against the orders of Judge McGuire of 11 July 2014 is dismissed.

  3. The appellant father to pay the respondent mother’s costs of and incidental to the appeal as agreed or assessed, such costs to be paid forty-two (42) days after agreement or assessment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stativa & Stativa has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number:  SOA 47 of 2014
File Number:  MLC 9079 of 2009

Mr Stativa

Appellant

and

Ms Stativa

Respondent

REASONS FOR JUDGMENT

  1. Ms Stativa (“the mother”) by Application in an Appeal filed on


    9 June 2015, seeks an order that the appeal filed by Mr Stativa (“the father”) be summarily dismissed, or, in the alternative, that the father provide security for her costs of meeting the appeal in the sum of $25,000.

  2. By Amended Notice of Appeal filed on 3 September 2014, the father appeals against certain orders made by Judge McGuire in the Federal Circuit Court on 11…

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Stativa & Stativa [2015] FamCAFC 170
Case
[2015] FamCAFC 170
Decision Date

CaseChat Overview and Summary

In the case of Stativa & Stativa, the father appealed against the decision of Judge McGuire, made on 11 July 2014, which granted the mother sole parental responsibility over their child. The father contended that the trial judge failed to adequately consider his evidence and had acted with bias. The mother filed an application for summary dismissal of the appeal or, alternatively, for security of costs. The primary focus of the appeal was whether the trial judge appropriately assessed the evidence and exercised his discretion in granting sole parental responsibility to the mother.

The legal issues central to this appeal involved the interpretation and application of the Family Law Act 1975, specifically concerning the best interests of the child. The court was required to determine whether the trial judge correctly exercised his discretion in favour of sole parental responsibility for the mother and whether there was any evidence of bias on the part of the trial judge. Additionally, the court examined the father's contention that the trial judge did not adequately weigh his evidence and the impact of his actions on the child.

The court found that the trial judge's decision was well-reasoned and supported by the evidence presented. The judge gave careful consideration to the father's evidence but ultimately preferred the mother's evidence, which demonstrated her ability to meet the child's emotional needs and protect the child from the father's detrimental behaviour. The court dismissed the father's allegation of bias, noting the absence of any evidence to support such a claim. The appeal was deemed to be without merit, and the father's allegations regarding the trial judge's handling of the case were rejected. Consequently, the appeal was dismissed, and the father was ordered to pay the mother's costs of and incidental to the appeal.

Orders

Orders of the court

1.

The respondent mother’s application in an appeal filed on 9 June 2015 is dismissed.

2.

The appeal against the orders of Judge McGuire of 11 July 2014 is dismissed.

3.

The appellant father to pay the respondent mother’s costs of and incidental to the appeal as agreed or assessed, such costs to be paid forty-two (42) days after agreement or assessment.

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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