Whalan & Rapallo - [2023] FedCFamC2F 133

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Whalan & Rapallo [2023] FedCFamC2F 133

File number(s): MLC 852 of 2017

Judgment of: JUDGE GLASS

Date of judgment: 20 February 2023

Catchwords: FAMILY LAW – PARENTING – best interests of the child – where there are current orders for week about basis – where the father now seeks sole parental responsibility and reduced time with mother – where the child has been exposed to parental conflict – where there is a lack of parental cooperation and communication – where there have been several intervention orders applied for by both parties.

Legislation:
Australian Passports Act 2005 (Cth), s11

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Cases cited:
Adamson & Adamson (2014) FLC 93-622

Blass & Blass (2022) FLC 94-085

Boyle & Zahur & Anor(2017) FLC 93-814

Carlson & Fluvium [2012] FamCA 32

Goldman & Goldman (2018) FLC 93-830

Hearne v Street (2008) 235 CLR 125

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Muldoon & Carlyle (2012) FLC 93-513

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217.

U v U (2002) 211 CLR 238.

Division: Division 2 Family Law

Number of paragraphs: 131

Date of last submission/s: 9 February 2023

Date of hearing: 6-9 February 2023

Place: Melbourne

Solicitor for the Applicant: Self Represented Litigant

Counsel for the Respondent: Mr Robinson

Solicitor for the Respondent: Velocity Legal
ORDERS

MLC 852 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS RAPALLO

Applicant

AND:
MR WHALAN

Respondent

order made by:

JUDGE GLASS

DATE OF ORDER:

20 FEBRUARY 2023

THE COURT ORDERS THAT:
Parental Responsibility
1.The Father have sole parental responsibility for long term decisions for the child X born in 2015 (the child).
2.In relation to where the child attends secondary school and any long term medical decisions for the child:
(a)the Father will contact the Mother in writing regarding the issue and will provide his views about the issue;
(b)if the Mother wishes to comment on the Father’s proposal she shall do so in writing within 7 days;
(c)the parties will make a genuine effort to come to a joint decision about the issue; and
(d)if no agreement is reached between the parties within 7 days of the Father contacting the Mother pursuant to (a) to (b) above, the Father will make the final decision about the issue and advise the Mother in writing of the decision made.

3.Pursuant to section 11(1)(b) of the Australian Passports Act 2005, the Father is authorised and permitted to apply for, renew and receive Australian passports for the child.
4.The passports shall be held by the Father and released to the Mother no less than 14 days prior to the Mother travelling overseas with the child pursuant to these Orders and the Mother shall return the child’s passports to the Father within 2 days of the child returning from said travel.

Living…

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 Whalan & Rapallo

Details

AGLC: Whalan & Rapallo [2023] FedCFamC2F 133
Case: [2023] FedCFamC2F 133
Decision Date

CaseChat Overview and Summary

The case of Whalan & Rapallo before the Federal Circuit and Family Court of Australia involved a dispute between the parents of a child, X, over the parenting arrangements. The father, Mr Whalan, sought sole parental responsibility for X, while the mother, Ms Rapallo, sought equal shared parental responsibility. Ms Rapallo also made numerous allegations of family violence and abuse against Mr Whalan, which he denied. The court was required to determine whether Ms Rapallo's allegations were true, and if so, whether they warranted a change in the existing parenting arrangements. The court also had to consider the best interests of X, including the need to protect him from harm and provide for his emotional and intellectual needs.

The court found that Ms Rapallo's allegations against Mr Whalan were false and that there was no unacceptable risk of harm to X in his father's care. The court was not satisfied that X was at risk of being exposed to family violence, abuse, or neglect by either parent. However, the court was concerned about the impact of Ms Rapallo's paranoia and delusional beliefs on X's psychological and emotional wellbeing. The court found that Ms Rapallo's refusal to communicate with Mr Whalan and her unilateral decisions about X's care reflected poorly on her capacity to provide for her son's needs.

The court concluded that it was in X's best interests to live primarily with Mr Whalan and spend substantial time with Ms Rapallo on weekends and during school holidays. The court also ordered that Mr Whalan have sole parental responsibility for long-term decisions for X, while requiring him to consult with Ms Rapallo and make a genuine effort to agree before making any final decisions. The court further ordered that both parents be restrained from exposing X to family violence, discussing proceedings, and speaking disparagingly about the other parent.

The court made various orders regarding the living arrangements, communication, travel, and other aspects of the parenting arrangements. The court also granted Mr Whalan permission to provide copies of documents from these proceedings to the Magistrates Court of Victoria for the purpose of Intervention Order proceedings.

Orders