TELLAM & MARIANI - [2012] FamCA 330

FAMILY COURT OF AUSTRALIA

TELLAM & MARIANI

[2012] FamCA 330

FAMILY LAW - CHILDREN – parental responsibility – with whom children live, spend time and communicate – best interests of children – history of family violence perpetrated by the father upon mother – allegations of drug abuse by parties - past family violence orders against the father for protection of mother – father incarcerated for a short period following breach of a family violence order – children had no interaction with the father whilst in prison – following father’s release and rehabilitation the father had some interaction with the children and mother – father’s interaction with children ceased by May 2009 and resumed with supervision in March 2012 – mother’s repeated non-compliance with court orders to facilitate children’s time with father and for the preparation of expert reports – children’s relationships with father not as meaningful as relationships with mother – finding father does not pose any tangible risk of emotional or physical harm to either the mother or children by commission of future family violence – father able and willing to facilitate a close and continuing relationship between children and mother – where the parenting capacity of both parties is impaired to some degree – mother’s deficient attitude to the responsibilities of parenthood as evidenced by her opinion about the desirability of severance of the children’s relationship with the father and her dismal record of compliance with Court Orders – presumption of equal shared parental responsibility rebutted – sole parental responsibility allocated to mother – orders children to live with mother and to spend supervised time with father on an interim basis

FAMILY LAW - PRACTICE & PROCEDURE – EVIDENCE - Conversion of hearing from final to interim when complexion of proceedings changed significantly once trial commenced – where father revealed he did not want the children to live with him as proposed but sought orders for the children to spend frequent time with him – where mother revealed she did not really want the children to spend any time with the father despite having proposed orders that they do – where the mother and father sought leave to rely upon additional affidavits not filed compliantly with existing procedural orders – leave refused

Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 5, 16, 36, 38, 42.
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAC, 65DAE, 65DAA, 69ZN, 69ZR, 69ZX

Browne v Dunn (1893) 6 R 67
Goode & Goode (2006) FLC 93-286
McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8
MRR v GR (2010) 240 CLR 461
Re David (1997) FLC 92-776
U v U (2002) 211 CLR 238

APPLICANT:

Mr Tellam

RESPONDENT:

Ms Mariani

INDEPENDENT CHILDREN’S LAWYER:

Craney Family Solicitors

FILE NUMBER:

NCC

2422

2009

DATE DELIVERED:

9 May 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

23 & 24 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr C Boyd

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.

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Details

AGLC: TELLAM & MARIANI [2012] FamCA 330
Case: [2012] FamCA 330
Decision Date: 9 May 2012

CaseChat Overview and Summary

This matter concerned parenting orders between Tellam and Mariani, with the primary dispute revolving around parental responsibility and the living arrangements for the children. The proceedings were heard by Austin J in the Family Court of Australia.

The court was required to determine the best interests of the children, considering a history of family violence perpetrated by the father against the mother, allegations of drug abuse by both parties, and past family violence orders against the father. Further issues included the mother's repeated non-compliance with court orders regarding the children's time with the father and the preparation of expert reports, the nature of the children's relationships with each parent, and the father's capacity to facilitate a relationship between the children and the mother. The court also had to consider whether the presumption of equal shared parental responsibility was rebutted and the appropriate allocation of sole parental responsibility.

Austin J found that the father did not pose a tangible risk of future family violence to the mother or children, and that he was able and willing to facilitate a close and continuing relationship between the children and the mother. However, the court noted that the parenting capacity of both parties was impaired to some degree, with the mother exhibiting a deficient attitude towards her parental responsibilities, particularly her desire to sever the children's relationship with the father and her poor compliance with court orders. The court also converted the hearing from final to interim when the father indicated he did not seek for the children to live with him, but rather frequent time, and the mother revealed she did not want the children to spend any time with the father, contrary to her initial proposals. Leave to rely on additional affidavits filed non-compliantly was refused.

Ultimately, the presumption of equal shared parental responsibility was rebutted. The court made orders allocating sole parental responsibility to the mother, with the children to live with her and spend supervised time with the father on an interim basis.

Orders