Volpe & Capo

Case [2022] FedCFamC1F 427

Federal Circuit and Family Court of Australia

(DIVISION 1)

Volpe & Capo [2022] FedCFamC1F 427

File number(s): SYC 7862 of 2019
Judgment of: BRASCH J
Date of judgment: 15 June 2022
Catchwords:

FAMILY LAW – CHILDREN – Spend time with – An application sought by the father for an equal time arrangement – Where the children had been spending five nights a fortnight with the father – Order for the fathers’ time to be increased to six nights a fortnight.

FAMILY LAW – CHILDREN – Parental responsibility – An application sought by the mother for sole parental responsibility – Order made for equal shared parental responsibility.

Legislation: Family Law Act 1975 (Cth) s 60CA; ss 60CC(2)(a)-(b); ss 60CC(3)(a)-(j); s60CC(3)(l)-(m); ss 60CC(6); s 61B; s 60I(1); s 65DAE; s65DAA.
Cases cited:

Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27

Carr v Baker (1936) 36 SR (NSW) 301;

Cotton & Cotton (1983) FLC 91-330;

Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127

Loddington & Derringford (No 2) [2008] FamCA 925;

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

McCall & Clark (2009) FLC 93-405;

Seltsam Pty Ltd v McGuiness & Anor (2000) 49 NSWLR 262; [2000] NSWCA 29

T &N (2001) 31 Fam LR 281; [2001] FMCAfam 222

Division: Division 1 First Instance
Number of paragraphs: 141
Date of last submission/s: 9 June 2022
Date of hearing: 7 – 9 June 2022
Place: Sydney
Counsel for the Applicant: Mr Havenstein
Solicitor for the Applicant: King and York Lawyers
Counsel for the Respondent: Litigant in person
Counsel for the Intervener: Ms Carr
Solicitor for the Intervener: Stidwill Solicitors

ORDERS

SYC 7862 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR VOLPE

Applicant
AND:

MS CAPO

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BRASCH J

DATE OF ORDER:

15 JUNE 2022

THE COURT ORDERS BY CONSENT THAT:

Special Occasions (save for the children’s birthdays)

1.The children, X, born 2013, and Y, born 2015 (“the children”), shall spend time with each parent on special occasions as agreed between the parties and, in default of agreement, as follows:

(a)where Father’s Day falls upon a weekend on which the children would not normally spend time with the father, the children will spend the weekend of Father’s Day with the father in substitution for the time which they would normally have spent with the father on the weekend immediately following Father’s Day;

(b)where Mother’s Day falls upon a weekend on which the children would normally spend with the father, the children will spend the weekend of Mother’s day with the mother in substitution for the time which they would normally have spent with the mother on the weekend immediately following Mother’s Day.

(c)The children shall spend time with each parent on the parents’ birthdays as follows:

(i)if a parent’s birthday falls on a school day from 3.00 pm on the day of the parent’s birthday until 9.00 am the following day;

(ii)if the parent’s birthday falls on…

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AGLC
Volpe & Capo [2022] FedCFamC1F 427
Case
[2022] FedCFamC1F 427
Decision Date

CaseChat Overview and Summary

Volpe & Capo involved a dispute between the parents of two children regarding their parenting arrangements. The parents had been unable to agree on a schedule that would allow the children to spend time with each of their parents. The case was heard in the Family Court of Australia, where the judge was tasked with determining the appropriate parenting orders for the children. The legal issues in the case included the determination of parental responsibility, the allocation of decision-making authority, and the assessment of the parents' capacity and exercise of responsibility. The court had to consider the best interests of the children and determine whether the parents should share equal responsibility or if one parent should have sole responsibility. Additionally, the court had to evaluate the parents' attitudes, their ability to facilitate a meaningful relationship between the children and the other parent, and the effect of any proposed changes to the current parenting arrangements.

The court found that the parents had placed the children in the center of their dispute, with both parties acknowledging the negative impact of their actions on the children. The father admitted to some errors in his behavior, while the mother recognized that her actions had also negatively affected the children. The court noted that the mother had been unable to actively facilitate a meaningful relationship between the children and their father. Despite this, the father continued to pay school fees for the children, although the exact amount was disputed. The court did not find it necessary to resolve the dispute over the amount of child support, as the father's payment of school fees was sufficient. The court also considered the effect of any proposed changes to the current parenting arrangements, finding that reducing the father's time with the children would be distressing and confusing for them.

Based on its findings, the court decided to make the proposed consent orders, which included a process to help the parents resolve any disputes about high school selection. The court emphasized that major long-term decisions, such as the children's names, religion, and cultural upbringing, had already been agreed upon by the parties. The court also highlighted that the father had shown a willingness to accommodate the mother's preferences regarding the children's high school selection. The court concluded that the proposed consent orders were in the best interests of the children and would provide them with a stable and consistent parenting arrangement.

The final orders made by the court included the proposed consent orders, which outlined the parenting arrangements for the children. The orders specified the schedule for the children to spend time with each parent, as well as a process for resolving any disputes about high school selection. The court also noted that the parents had not brought any contravention proceedings and had refrained from involving the police in their disputes, which was a positive development. The court emphasized the importance of the parents prioritizing the children's best interests and working together to provide a stable and nurturing environment for them.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The proposed minutes of consent, which I will make provide for the sharing of Orthodox Christmas and Easter, which is entirely appropriate for the cultural and religious context of these children.Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: I have already addressed each parent placing the children in the centre of their tug-of-war. The father, in cross-examination, was able to accept the error of some of his ways. The mother also accepted that on occasions, her behaviour would have negatively impacted on the children. I have already made findings about the mother’s incapacity to actively facilitate a meaningful relationship between the children and their father. The father does not pay child support but the mother said she did not want child support from the father, as she did not “want to be controlled by him.” He does however pay school fees, but the quantum was disputed. I cannot resolve that difference, nor do I need to. He pays the school fees, whatever the cost may actually be. I do not need to make findings about the children’s time with the parents prior to Orders being made, other than there was no consistency until their priest made some recommendations. Before that, when the mother would not agree to time, the father would take self-help measures. Neither party covered themselves in much glory during this period of time. Usefully, neither parent has brought Contravention proceedings. I have also referred to the parties use of welfare checks and involvement of the police, which in many occasion was an unnecessary diversion of precious police resources.Issues of family violence: I have considered this matter under the heading of protection from harm.Effect of change: The mother’s proposal to reduce the current five nights a fortnight with the father, to one night a fortnight would be a considerable change to the children. It was not supported by the Family Consultant who opined that such a reduction would be “very distressing” for the children to go from five nights to one night and that they would be “really upset to have such a reduction of time with their father”. The Family Consultant also indicated that the children may grow to resent the mother for the reduction in time. In addition to the mother giving evidence that the children may well interpret the reduced time (or in her third iteration, any change to the orders) as a right and wrong parent, and a truthful and untruthful parent, she also said that they would also feel relief, confusion and safe, if time was reduced. I have no evidence to support the assertion that they would be relieved; rather, I have evidence from both children that they enjoy their time with him. More importantly, the Family Consultant described their relationship with their father as positive and beneficial, and that they both feel safe and happy in his care. For reasons of enjoying time with their father and feeling safe and happy with him, I do accept that the children would be confused if time was reduced in the way proposed by the mother. I do not accept they would feel safe if time reduced, because the opposite is reported by the Family Consultant, whose evidence I accept.Practical difficulty of implementation:

Ratio Decidendi

Legal Principle Established

Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. To assist analysis, those considerations can conveniently be grouped under the following headings:· Issues relating to the children – their views, level of maturity, culture, and, relationships;· Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility;· Issues of family violence;· Effect of change;· Practical difficulty of implementation;· Avoiding further proceedings; and· Other relevant matters the Court considers relevant.Consideration – parenting dispute.The presumption of equal shared parental responsibility The first issue raised by the parties falls under this heading – whether the parents ought equally share parental responsibility, or the mother have sole parental responsibility. Section 61B of the Act defines 'responsibility' as relating to the powers, duties and authority that parents have by law for their children. In a practical sense, it normally refers to the decision-making process for major long–term and important decisions for children as opposed to the more mundane day–to–day decisions which parents make for their children. Matters of religious affiliation, children’s names and relocations are often cited as examples of the obligations of 'parental responsibility'. Haircuts, homework and routine medical care such as administering Panadol are often cited as examples of day-to-day decisions. Within this context, at the start of trial, it was agreed by the parties that when regard is had to the major long-term issues, there was no dispute about the children’s names, religion and cultural upbringing, or, changes to the children’s living arrangements which would make it significantly more difficult for the children to spend time with a parent. It was also agreed that the parties would follow medical and allied health advice given for the children for major long‑term medical issues. Both children are at primary school, so that major long-term decision has already been determined. Thus, at this point in time, the only issue that may loom is which high school the children will attend. The father gave refreshingly accommodating evidence that whilst he hoped the children could attend a selective high school, if the mother did not agree then he would yield to her preference: “if the mother does not agree, then I am not adamant”. In any event, the parties proposed consent orders which included a process to help them resolve any dispute about high school selection. I have already indicted that I will make the proposed consent orders. Despite the above discussion about what major long-term decisions may actually loom, the mother pursued sole parental responsibility because of “the small things”. In closing submissions, the mother said those “small things” were haircuts, and education, by which she may have meant the parents’ different attitudes to homework as had featured in the trial (the mother had already agreed to the high school selection process in the draft Minute of orders). As I endeavoured to explain to her, haircuts are not major long terms decisions. As for education, the parents will do as they wish with homework when the children are with them.