Vanetti & Harrison (No 2) - [2023] FedCFamC1F 563

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vanetti & Harrison (No 2) [2023] FedCFamC1F 563

File number(s): MLC 11706 of 2019

Judgment of: BENNETT J

Date of judgment: 12 July 2023

Catchwords:
FAMILY LAW – PARENTING – where parties agree that children aged 9 and 6 years are to live primarily with the father and spend time with the mother – where mother is assessed as having Adjustment Disorder with Anxious Mood in the context of a vulnerable personality style with Borderline Features – where mother refutes diagnosis and has not undertaking any therapy to address her behaviour – where mother has consistently negative and critical views of father.

FAMILY LAW – PARENTING – where there is a very high degree of parental conflict – where parental conflict is assessed by the family report writer as endangering the immediate, medium and long-term emotional health of the children.

FAMILY LAW – PARENTING – where mother seeks equal shared parental responsibility and father and independent children’s lawyer seek that father have sole responsibility for major long term decisions about health and education – where presumption in favour of equal shared parental responsibility is rebutted by evidence that equal shared parental responsibility is not in the best interests of the children and there a reasonable belief that the mother has engaged in family violence toward the father and one of the children – where court considers allocation of parental responsibility at large and orders that the father have sole parental responsibility in relation to health and education.

FAMILY LAW – PARENTING – where it is in the children’s best interest to minimise interaction between the parents in the presence of the children and spend time orders are made accordingly.

FAMILY LAW – PARENTING – where in relation to specific issues – where eldest child has special needs – the mother’s application for an injunction against the father continuing the treatment of the eldest child with his current paediatrician and psychologist is refused – where changeovers are minimised and ordered to take place any from either parent’s home – where injunction granted preventing the mother from travelling overseas with the children including to her country of origin, Country D – where injunction granted to prevent mother from causing eldest child to sleep overnight anywhere other than her home during spend time periods save with written consent of the father – where court is satisfied that it is not in the best interest of the eldest child to be enrolled in Country D language school at this stage.

FAMILY LAW – PARENTING – where parties seek and order to facilitate parenting coordination – where court considers a conservative approach is required in the absence of specific evidence about parenting coordination – where court refuses to make order for the parties to engage a parenting coordinator.

FAMILY LAW – FINANCIAL – where the only legal and equitable interests of the parties are in personal effects and the father’s superannuation – where mother’s contributions are…

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: Vanetti & Harrison (No 2) [2023] FedCFamC1F 563
Case: [2023] FedCFamC1F 563
Decision Date

CaseChat Overview and Summary

This case concerns final parenting and property proceedings following the breakdown of the parents’ marriage. The children, X (9 years old) and Y (6 years old), have special needs. The parents agree that the children will primarily live with the father but dispute the mother’s time with the children. The father seeks sole parental responsibility, while the mother seeks equal shared parental responsibility. The court found that the parents could not cooperate in parenting and granted the father sole parental responsibility for major long-term decisions about health and education. The court made detailed orders regarding the children’s time with each parent, their education, and medical treatment. The court also made orders regarding the parents’ communication and the children’s travel to the mother’s country of origin. The financial aspect of the case was limited to the father’s superannuation interest, and the court made a splitting order for a base amount of $20,000. The court declined to make an order for parenting coordination, finding that the parents had not demonstrated the capacity to co-parent effectively.

Orders