UNCLE WANTS TO SPEND TIME WITH HIS NIBLINGS
Marino & Bello & Anor (No.2) [2020] FCCA 2203 (15 September 2020)
This case involves the applicant seeking to spend reasonable time with his brother’s children despite the fact that he applicant and the respondents are estranged and even if the applicant never met the children.
Facts:
The applicant, Mr. Marino, is the brother of Ms. Bello (“the second respondent”). The first and second respondents’ (“the respondents’”) are the parents of three children, X, 7 years of age, Y, 4 years of age and Z, 3 years of age (“the children”).
The respondents and the applicant are estranged. Various allegations of domestic violence by the applicant have been made by the second respondent. It is contended that the applicant has only had one contact with X and has never seen Y and Z.
The applicant filed an Initiating Application, seeking orders that he be allowed to spend reasonable time with each of the children and attend any and all-important life events, including but not limited to birthdays, christenings, Christmas etc. The applicant’s allegations against the respondents include, that they have mental health issues, consume illegal drugs and that the first respondent (who he has never met) has serious health issues.
Issue:
Should the applicant be allowed to spend reasonable time with the children?
Law:
- S65(C)- Who may apply for a parenting order
(c) Any person concerned with the care, welfare or development of the child.
Analysis:
The Court is satisfied that the applicant and the respondents are estranged and their current relationship, if any, is characterized by high levels of dispute. It is difficult to see how the best interests of the children, the subject of the proceedings, could be enhanced by exposing them to the high levels of dispute and antagonism that have punctuated these proceedings.
In this case, the applicant has failed to meet the threshold test in s 65C(c) of the Act. The proceedings have been wholly unsuccessful. The Court is satisfied that they have not been brought about out of any concern for the welfare of the children, rather, they have been brought with the intention of annoying, embarrassing, causing distress and/or spite to the respondents, and the second respondent in particular.
Conclusion: The applicant is not entitled to spend time reasonable time with the children.