ASTARITA & COTTON - [2013] FamCA 571

FAMILY COURT OF AUSTRALIA

ASTARITA & COTTON

[2013] FamCA 571

FAMILY LAW – CHILDREN – best interests – mother and father to have equal shared parental responsibility for the children even though finding of previous family violence rendered the presumption of equal shared parental responsibility inapplicable.

FAMILY LAW – CHILDREN – with whom the children shall live and spend time – children shall live with the mother – children shall spend substantial and significant time with the father, increasing as the children get older – children too young to express their views – desirability of children retaining residence with their half-siblings – orders foster the children’s relationships with both the maternal and paternal extended family – where the father failed his obligation to maintain the children.

FAMILY LAW – PATERNITY – paternity of the children to be disclosed to the NSW Births, Deaths and Marriages registrar – father’s paternity to be included on fresh birth certificates for the children.

Births Deaths and Marriages Registration Act 1995 (NSW) ss 22, 28

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65D, 65Y, 65Z, 65AA, 65DA, 65DAA, 65DAC, 65DAE
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) s 4AB

Chapman v Palmer (1978) 4 Fam LR 462
Flanagan v Handcock (2001) FLC 93-074
Goode & Goode (2006) FLC 93-286
Marriage of Mahony & McKenzie (1993) 16 Fam LR 803
M v B [2001] FamCA 894
MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Astarita

RESPONDENT:

Ms Cotton

INDEPENDENT CHILDREN’S LAWYER:

Mr Grant, Grant & Co

FILE NUMBER:

NCC

1651

2012

DATE DELIVERED:

7 August 2013

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

15, 16 & 17 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Obradovic

SOLICITOR FOR THE APPLICANT:

Tsuzukete Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Friedlander

SOLICITOR FOR THE RESPONDENT:

Catalyst Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fraser

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Grant, Grant & Co

Orders

All former orders relating to the children L and N, both born on … 2011, (“the children”) are discharged.
The mother and father shall have equal shared parental responsibility for the children.
The children shall live with the mother.
The mother and father shall take all reasonable steps to ensure that the children spend time with the father, unless otherwise agreed:
(a)Until the children attain two years of age:
(i)Each alternate weekend from 9.30 am on Saturday until 5.30 pm on Sunday, commencing on the first Saturday after the date of these orders;
(ii)Each Wednesday from 9.30 am until 5.30 pm, commencing on the first Wednesday after these orders; and
(iii)From 1.00 pm until 5.30 pm on the children’s birthday 2013.
(b)Thereafter, until the children commence school:
(i)Each alternate weekend from 9.30 am on Saturday until 5.30 pm on Sunday; and
(ii)Each Tuesday from 9.30 am until 5.30 pm, commencing on the first Tuesday after the children attain two years of age;

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: [2013] FamCA 571
Decision Date: 7 August 2013

CaseChat Overview and Summary

In the matter of *Astarita & Cotton*, Austin J of the Family Court of Australia considered the parenting arrangements for two young children, L and N. The dispute concerned the children's living arrangements, time spent with each parent, and parental responsibility, despite a finding of previous family violence which rendered the usual presumption of equal shared parental responsibility inapplicable. The court also addressed the disclosure of the father's paternity on the children's birth certificates.

The court was required to determine the best interests of the children, specifically with whom they should live and spend time, and whether the parents should have equal shared parental responsibility. A further issue was the amendment of the children's birth certificates to include the father's paternity.

Austin J ordered that the mother and father would have equal shared parental responsibility for the children, who would live with the mother. The father was to spend substantial and significant time with the children, with the quantum of time increasing as the children aged, acknowledging that the children were too young to express their views. The court considered the desirability of the children retaining residence with their half-siblings and fostering their relationships with both maternal and paternal extended families. The father was ordered to take all reasonable steps to ensure the father's paternity was disclosed on fresh birth certificates for the children.

Orders

Orders of the court

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

The mother and father shall have equal shared parental responsibility for the children.

The children shall live with the mother.

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

(a) Until the children attain two years of age:

(i) Each alternate weekend from 9.30 am on Saturday until 5.30 pm on Sunday, commencing on the first Saturday after the date of these orders;

(ii) Each Wednesday from 9.30 am until 5.30 pm, commencing on the first Wednesday after these orders; and

(iii) From 1.00 pm until 5.30 pm on the children’s birthday 2013.

(b) Thereafter, until the children commence school:

(i) Each alternate weekend from 9.30 am on Saturday until 5.30 pm on Sunday; and

(ii) Each Tuesday from 9.30 am until 5.30 pm, commencing on the first Tuesday after the children attain two years of age;

(iii) Each Thursday from 9.30 am until 5.30 pm, commencing on the first Thursday after the children attain two years of age; and

(iv) From 1.00 pm until 5.30 pm on the children’s birthday each year.

(i) During school terms:

(A) Each alternate weekend from the conclusion of school or 3.30 pm on Friday (whichever is the later) until the commencement of school or 9.00 am on Monday (whichever is the earlier), commencing on the first Friday of each school term; and

(B) Each Wednesday from the conclusion of school until 7.30 pm.

(ii) During school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year;

(iii) During the Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year; and

(iv) From 5.30 pm until 8.00 pm on the children’s birthday each year.

Order 4 hereof is suspended during the following periods:

(a) From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years;

(b) From 9.30 am on Good Friday until 5.30 pm on Easter Monday each year, during which period the children will spend time with the mother from 9.30 am on Good Friday until 9.30 am on Easter Sunday, and with the father from 9.30 am on Easter Sunday until 5.30 pm on Easter Monday in even numbered years, with the same arrangements in reverse in odd numbered years; and

(c) From 5.30 pm Saturday on each Mother’s Day and Father’s Day weekends, during which periods the children shall spend time with the mother on the Mother’s Day weekend and with the father on Father’s Day weekend.

For the purposes of implementation of Order 4(c) hereof, the school holidays are deemed to commence at the conclusion of school on the last day of school term, the holidays are deemed to end at the commencement of school on the first day of the new school term, and the mid point is the day halfway between those days.

For the purpose of implementing Orders 4 and 5 hereof, the party with whom the children are to live or spend time shall collect the children, unless otherwise agreed:

(a) From day-care, pre-school or school, whenever such time is to commence following the conclusion of day-care, pre-school or school, or

(b) From the other party or his/her nominee at the McDonalds Restaurant … whenever such time is to commence at a time other than the conclusion of day-care, pre-school or school.

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

The parties shall forthwith take all reasonable steps to ensure that the Births, Deaths and Marriages Register kept by the Registrar pursuant to the provisions of the Births, Deaths, and Marriages Registration Act 1995 (NSW) is amended so as to disclose the father’s paternity of the children, and that fresh birth certificates issue for the children disclosing the father’s paternity of the children.

10.

The parties are at liberty to provide a sealed copy of these orders to the Registrar appointed under the Births, Deaths, and Marriages Registration Act 1995 (NSW).

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.

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.

13.

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

14.

Costs are reserved for 28 days.

15.

Any and all outstanding applications are dismissed.

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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