Astarita and Cotton - [2017] FamCA 87

FAMILY COURT OF AUSTRALIA

ASTARITA & COTTON [2017] FamCA 87

FAMILY – CHILDREN – Interlocutory applications – Risk of harm – Where the children have meaningful relationships with both parents – Where the mother alleged the children are at risk of harm through their sexual abuse by the father – Where the mother proposes any interaction between the children and father is professionally supervised – Decided the evidence is insufficient to demonstrate the children are at an unacceptable risk of harm through sexual abuse by the father – Ordered mother’s application is dismissed

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D, 65DAA, 69ZW

Family Law Rules 2004 (Cth)

APPLICANT: Mr Astarita

RESPONDENT: Ms Cotton

FILE NUMBER: NCC 1651 of 2012

DATE DELIVERED: 10 February 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 10 February 2017
REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carty

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Ms Kaiti, CBD Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Foat Roberts Lawyers
Orders
PENDING FURTHER ORDER, IT IS ORDERED THAT
1.Order 4 made on 7 August 2013 is suspended.
2.Orders 1 to 5 made on 25 November 2016 are discharged.

3.The mother and father shall take all reasonable steps to ensure the children spend time with the father, unless otherwise agreed:

a.From the conclusion of this hearing until 4:30 pm on Sunday, 12 February 2017;
b.During school terms, each alternate weekend from 8:00 pm on Friday until 4:30 pm on Sunday, commencing on Friday, 24 February 2017, and thereafter on the first Friday of each school term; and

c.For the first week of the autumn, winter and spring school holidays.

4.For the purpose of implementing Order 3(a) hereof the father shall collect the children from the Director of Child Dispute Services in the Newcastle Registry of the Family Court of Australia and the parties shall exchange the children on Sunday, 12 February 2017, at the Suburb A Police Station
5.For the purpose of implementing Order 3(b) and 3(c) hereof the parties shall cause the exchange of the children between them or their nominees at the Suburb A Police Station.

6.For the purpose of implementing Order 3(c) hereof the children’s school holiday visits with the father shall be deemed to commence at 8:00pm on the last day of school term and conclude at 4:30 pm on the second Saturday thereafter.

7.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

8.Otherwise:
a.The Application in a Case filed by the applicant father on 20 December 2016 is dismissed;
b.The Response to an Application in a Case filed by…

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

Case: [2017] FamCA 87
Decision Date: 10 February 2017

CaseChat Overview and Summary

This matter concerned orders made by Austin J in the Family Court of Australia regarding the parenting arrangements for the parties' children. The proceedings involved an application by the father and a response by the mother, with various interim orders and applications being considered.

The court was required to determine the specific parenting orders to be made, including the arrangements for the children to spend time with the father, and to consider the dismissal of outstanding applications and the need for further reports and directions. The court also had to address the provision of information to the Department of Family and Community Services and the issuance of subpoenae.

Austin J made detailed orders concerning the children's time with the father, suspending previous orders and establishing a new schedule for alternate weekends and school holidays, with specific exchange points at a police station. The court also ordered the preparation of an update family report by a Family Consultant, requiring the attendance of both parties and the children for interviews and observations. Various applications were dismissed, and the proceedings were adjourned for further directions, with leave granted for the mother to issue subpoenae to childcare centres and a speech pathologist, and for the Independent Children's Lawyer to provide documents to the Department of Family and Community Services. By consent, an earlier application-contravention filed by the father was dismissed.

Orders

Orders of the court

PENDING FURTHER ORDER, IT IS ORDERED THAT

1. Order 4 made on 7 August 2013 is suspended.

2. Orders 1 to 5 made on 25 November 2016 are discharged.

3. The mother and father shall take all reasonable steps to ensure the children spend time with the father, unless otherwise agreed:

a. From the conclusion of this hearing until 4:30 pm on Sunday, 12 February 2017;

b. During school terms, each alternate weekend from 8:00 pm on Friday until 4:30 pm on Sunday, commencing on Friday, 24 February 2017, and thereafter on the first Friday of each school term; and

c. For the first week of the autumn, winter and spring school holidays.

4. For the purpose of implementing Order 3(a) hereof the father shall collect the children from the Director of Child Dispute Services in the Newcastle Registry of the Family Court of Australia and the parties shall exchange the children on Sunday, 12 February 2017, at the Suburb A Police Station

5. For the purpose of implementing Order 3(b) and 3(c) hereof the parties shall cause the exchange of the children between them or their nominees at the Suburb A Police Station.

6. For the purpose of implementing Order 3(c) hereof the children’s school holiday visits with the father shall be deemed to commence at 8:00pm on the last day of school term and conclude at 4:30 pm on the second Saturday thereafter.

7. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

8. Otherwise:

a. The Application in a Case filed by the applicant father on 20 December 2016 is dismissed;

b. The Response to an Application in a Case filed by the respondent mother filed on 7 February 2017 is dismissed;

c. The Response to an Application in a Case filed by the respondent mother filed on 8 February 2017 is dismissed; and

d. Any and all outstanding applications for interim relief are dismissed.

IT IS FURTHER ORDERED THAT

9. Pursuant to s 62G of the Family Law Act, a Family Consultant shall prepare and furnish to the Court an update family report concerning the children of the parties touching upon those matters of relevance to the care, welfare, and development of the children.

10. In order to facilitate preparation of the family report:

a. Each party must attend upon the Family Consultant for such interviews and observation sessions at such times and places nominated by the Family Consultant;

b. Each party must ensure the attendance of the children at such interviews and observation sessions at such times and places nominated by the Family Consultant; and

c. The Family Consultant is granted leave to inspect the Court file and all documents produced on subpoenae.

11. The proceedings are adjourned until 9:30 am on Friday, 26 May 2017, for further procedural directions.

12. Leave is granted to the respondent mother to issue subpoenae to:

a. The Proper Officer of B Child Care Centre C Town;

b. The Proper Officer of D Child Care Centre;

c. The Proper Officer of E Town Pre-School; and

d. The Proper Officer of F Speech Pathology.

13. Leave is granted to the Independent Children’s Lawyer to provide to the Secretary of the NSW Department of Family and Community Services:

a. A copy of these Orders; and

b. A copy of the Reasons for Judgment once published.

BY CONSENT, IT IS FURTHER ORDERED THAT

14. The Application-Contravention filed by the father on 30 July 2015 is dismissed, with no order as to costs.

NOTATION

A. The parties will be independently notified of the dates and times of their appointment with the Family Consultant, which are presently expected to take place on or about 18 April 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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