Astarita and Cotton (No 2) - [2017] FamCA 905

FAMILY COURT OF AUSTRALIA

ASTARITA & COTTON (NO. 2)

[2017] FamCA 905

FAMILY LAW – CHILDREN – With whom a child lives – Where the children have meaningful relationships with both parents – Where the mother alleged the children are at risk of harm through physical and sexual abuse by the father – Where the mother failed to comply with orders requiring the children to spend time with the father – Where there are two principal issues: the extent to which the mother was capable of adequately providing for the children’s needs, particularly their emotional needs, and whether the father constituted any risk to the children’s physical and psychological safety – Where the evidence demonstrates the mother was unable to satisfactorily meet the children’s needs and the father posed no material risk of harm to them – Where the mother was found to be unable to facilitate the relationships between the children and the father – Ordered father shall have sole responsibility for the children – Ordered the children shall live with the father and spend time with the mother

Births, Deaths and Marriages Registration Act 1995 (NSW) s 19
Education Act 1990 (NSW)
Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

Astarita & Cotton [2013] FamCA 571
Astarita & Cotton [2017] FamCA 87

APPLICANT:

Mr Astarita

RESPONDENT:

Ms Cotton

INDEPENDENT CHILDREN’S LAWYER:

Ms Roberts, Foat Roberts Lawyers

FILE NUMBER:

NCC

1651

2012

DATE DELIVERED:

10 November 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

23, 24 & 25 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Carty
SOLICITOR FOR THE APPLICANT:	Not Applicable

COUNSEL FOR THE RESPONDENT:

Mr Hill

SOLICITOR FOR THE RESPONDENT:

CBD Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Kearney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Foat Roberts Lawyers

Orders

All former orders relating to the children L and N, each born … 2011, (“the children”) are discharged.
The father shall have sole parental responsibility for the children.
The children shall live with the father.
The parties shall take all reasonable steps to ensure the children spend time with the mother as follows:
(a) Until the commencement of the first school term in 2018:
(i)From the conclusion of school on Friday 24 November 2017 until the commencement of school on Monday 27 November 2017;
(ii)From the conclusion of school on Friday 8 December 2017 until the commencement of school on Monday 11 December 2017;
(iii)From 12.00 noon on Friday 22 December 2017 until 5.00 pm on Sunday 24 December 2017; and
(iv)From 12.00 noon on Friday 12 January 2018 until 12.00 noon on Friday 26 January 2018.
(b) From the commencement of the first school term in 2018 and thereafter:
(i)During school terms, each third weekend from the conclusion of school on Friday until the commencement of school on Monday, commencing on the second Friday of each term;
(ii)During the Autumn, Winter, and Spring school holidays, from the conclusion…

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 905
Decision Date: 10 November 2017

CaseChat Overview and Summary

This matter concerned an application by the father, Mr Astarita, and the mother, Ms Cotton, regarding their two children, L and N. The dispute involved the parental responsibility for and living arrangements of the children. Austin J of the Family Court of Australia was required to determine the parenting orders for the children.

The court was tasked with determining the primary caregiver for the children, the allocation of parental responsibility, and the specific time the children would spend with each parent. Additionally, the court needed to address communication arrangements between the parents and the children, and the geographical restrictions on the mother's time with the children. The court also considered the registration of paternity for the children and the associated birth certificate amendments.

Austin J ordered that all former orders relating to the children be discharged. The father was granted sole parental responsibility, and the children were to live with him. Specific, detailed arrangements were set out for the children to spend time with the mother, both before and after the commencement of the 2018 school term, including provisions for school holidays and weekends. The court also imposed restraints on the mother regarding the distance she could take the children and on the father concerning his attendance at the children's school during handover periods. Further orders mandated private communication between the children and the non-resident parent on specific occasions, prohibited denigration of either parent in the children's presence, and established protocols for medical emergencies and information sharing regarding the children's education and activities. The father was ordered to facilitate the provision of school reports to the mother, and both parties were required to keep each other informed of their contact details. Crucially, the court found the father to be the biological father of the children and ordered the Registrar to amend the children's birth certificates accordingly. The parties were also directed to have the children delivered to Child Dispute Services to explain the orders. Costs were reserved.

Orders

Orders of the court

All former orders relating to the children L and N, each born … 2011, (“the children”) are discharged.

The father shall have sole parental responsibility for the children.

The children shall live with the father.

The parties shall take all reasonable steps to ensure the children spend time with the mother as follows:

(a) Until the commencement of the first school term in 2018:

(i) From the conclusion of school on Friday 24 November 2017 until the commencement of school on Monday 27 November 2017;

(ii) From the conclusion of school on Friday 8 December 2017 until the commencement of school on Monday 11 December 2017;

(iii) From 12.00 noon on Friday 22 December 2017 until 5.00 pm on Sunday 24 December 2017; and

(iv) From 12.00 noon on Friday 12 January 2018 until 12.00 noon on Friday 26 January 2018.

(b) From the commencement of the first school term in 2018 and thereafter:

(i) During school terms, each third weekend from the conclusion of school on Friday until the commencement of school on Monday, commencing on the second Friday of each term;

(ii) During the Autumn, Winter, and Spring school holidays, from the conclusion of school on the last day of term until 12.00 noon on the second Tuesday thereafter; and

(iii) During the Summer school holidays:

(A) When the holidays commence in an even numbered year, from the conclusion of school on the last day of term until 12.00 noon on 7 January; and

(B) When the holidays commence in an odd numbered year, from 12.00 noon on 7 January until 12.00 noon on the last day before the children are due to return to school in the new term.

For the purposes of implementing Orders 3 and 4:

(a) The parties shall respectively ensure the children’s:

(i) Collection from school, whenever the children’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

(ii) Return to school, whenever the children’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

(iii) Collection from and return to the police station at Suburb A, NSW.

(b) The mother is restrained from causing or permitting the children to be taken further than 50 kilometres from their residence when spending time with her pursuant to Orders 4(a)(i), 4(a)(ii), 4(a)(iii), and 4(b)(i).

(c) The father is restrained from attending the children’s school within 15 minutes of the time at which the mother is due to collect or return the children from or to the school pursuant to these orders.

The parties shall take all reasonable steps to ensure the children communicate privately by telephone with whichever parent they are not then staying at 6.00 pm on:

(a) Mother’s Day (but only if then living with the father);

(b) Father’s Day (but only if then spending time with the mother);

(d) Christmas Day;

which shall be implemented by the parent with whom the children are not then staying telephoning the children on the telephone number provided by the other parent and the parent with whom the children are staying ensuring the children are able to receive the other parent’s calls on that number at that time.

Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate and each party is at liberty to attend those events to the extent ordinarily permitted by the school or other sporting or cultural organisation.

10.

The father shall authorise and request the principal of any school attended by the children to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the children.

11.

Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

12.

In the event of either party notifying the police or a prescribed child welfare authority that either child has been abused or is the subject of actual or potential abuse, the notifying party shall simultaneously (or as soon as possible thereafter) provide to the person to whom the notification is made a copy of these orders and a copy of these reasons for judgment.

13.

Pursuant to s 19 of the Births, Deaths and Marriages Registration Act 1995 (NSW):

(a) The father is found to be the biological father of the children;

(b) The Registrar is ordered to include the father’s paternity of the children as part of the registrable information about them in the Register and to re-issue fresh birth certificates for the children disclosing his paternity; and

(c) The father shall do all things necessary to facilitate compliance with this Order as an incident of his sole parental responsibility for the children.

14.

The mother shall do any and all such things necessary to facilitate the implementation of Order 13 hereof.

15.

The parties shall forthwith cause the children to be delivered to the Senior Family Consultant of Child Dispute Services at the Newcastle registry of the Family Court of Australia to have explained to them the effect of these orders, and if deemed appropriate by the Senior Family Consultant (or her delegate), the reasons for such orders.

16.

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.

17.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

18.

Costs are reserved for 28 days.

19.

Any and all other outstanding applications are dismissed.

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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