Bostoi and Bostoi - [2010] FamCA 992

FAMILY COURT OF AUSTRALIA

BOSTOI & BOSTOI

[2010] FamCA 992

FAMILY LAW – CHILDREN – With whom children live – Mental health concerns in parents – Best interests

Family Law Act 1975 (Cth)

APPLICANT:

Ms Bostoi

RESPONDENT:

Mr Bostoi

FILE NUMBER:

SYC

2851

2009

DATE DELIVERED:

27 October 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Stevenson

HEARING DATE:

25 February 2010
25,26,27,28 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Nash

SOLICITOR FOR THE APPLICANT:

Feeney Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Rees SC

SOLICITOR FOR THE RESPONDENT:	Watts McCray Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Ms Falloon
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Legal Aid NSW Sydney

Orders

That all existing orders in relation to the children
C born on … September 1997 and
L born on … April 2001
are discharged.
2.1 The parties will have equal shared parental responsibility for the children.
2.2The parent with whom the children are living from time to time pursuant to these orders has sole responsibility for making decisions as to their day-to-day care, welfare and development.
2.3In particular with respect to shared parental responsibility, and without derogating from the meaning given to those words in the Act:
2.3.1each parent shall promptly advise the other about any matter coming to his or her attention pertaining to a child’s progress or development, or any decision required to be made about a child’s activities or general care including health care;
2.3.2the parents shall at all times acknowledge that each of them is entitled to:
attend any activities at a child’s school which parents are invited to attend;
attend any extra-curricular activity in which a child is participating;
be consulted before any decision is made about matters going to a child’s welfare including but not limited to major long-term issues such as education, major medical decisions and religious instruction.
2.3.3in the event that a child is admitted to hospital, and irrespective of the length of that admission, the parent having the child’s care at that time shall as soon as is reasonably practicable provide the other parent with all relevant information, and ensure that the treating professional record the name and contact details of the other parent;
2.3.4except in the event of an emergency requiring immediate attention, neither parent shall confirm any medical or dental appointment for the children without first advising the other parent about:
the reason for the proposed consultation; and
the local of the medical and dental facility; and
the time and date of the appointment.
The children live with the mother at all times other than the periods specified in order 4, during which they will live with the father.
The children live with the father:
4.1during school term time, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday
4.2during school term time, from the conclusion of school on Wednesday until the commencement of school on Thursday in each other week
4.3for one half of each school holiday…

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 Bostoi and Bostoi

Details

AGLC: Bostoi and Bostoi [2010] FamCA 992
Case: [2010] FamCA 992
Decision Date: 27 October 2010

CaseChat Overview and Summary

In the matter of *Bostoi and Bostoi*, Justice Stevenson of the Federal Circuit and Family Court of Australia made orders concerning the parental responsibility and living arrangements for two children, C and L. The dispute centred on how the parents would share responsibility for the children and the specific schedule for when the children would live with each parent.

The court was required to determine the extent of shared parental responsibility, the specific day-to-day care arrangements, and the allocation of time the children would spend with each parent, including provisions for special days and holidays. Additionally, the court addressed the importance of facilitating the children's counselling and the parents' obligations regarding communication and the children's privacy in relation to that counselling.

Justice Stevenson ordered the discharge of all existing orders relating to the children. The parents were granted equal shared parental responsibility, with the parent with whom the children were living at any given time having sole responsibility for day-to-day decisions. The orders detailed specific obligations for communication and consultation between the parents regarding the children's welfare, including health, education, and extracurricular activities. A detailed schedule was established for the children living with each parent, encompassing alternate weekends, mid-week time, school holidays, and specific public holidays and significant days for each parent. The court also mandated that the children attend confidential counselling and outlined strict privacy provisions regarding this counselling, restraining parents from seeking disclosure from the children or their counsellor.

The final orders also included provisions for the Independent Children's Lawyer to explain the orders to the children and for each parent to contribute to the costs of the children's counsellor and the Independent Children's Lawyer. A Fact Sheet detailing the obligations and consequences of contravening the orders was attached and incorporated into the orders.

Orders

Orders of the court

That all existing orders in relation to the children

C born on … September 1997 and

L born on … April 2001

are discharged.

2.1 The parties will have equal shared parental responsibility for the children.

2.2 The parent with whom the children are living from time to time pursuant to these orders has sole responsibility for making decisions as to their day-to-day care, welfare and development.

2.3 In particular with respect to shared parental responsibility, and without derogating from the meaning given to those words in the Act:

2.3.1 each parent shall promptly advise the other about any matter coming to his or her attention pertaining to a child’s progress or development, or any decision required to be made about a child’s activities or general care including health care;

2.3.2 the parents shall at all times acknowledge that each of them is entitled to:

attend any activities at a child’s school which parents are invited to attend;

attend any extra-curricular activity in which a child is participating;

be consulted before any decision is made about matters going to a child’s welfare including but not limited to major long-term issues such as education, major medical decisions and religious instruction.

2.3.3 in the event that a child is admitted to hospital, and irrespective of the length of that admission, the parent having the child’s care at that time shall as soon as is reasonably practicable provide the other parent with all relevant information, and ensure that the treating professional record the name and contact details of the other parent;

2.3.4 except in the event of an emergency requiring immediate attention, neither parent shall confirm any medical or dental appointment for the children without first advising the other parent about:

the reason for the proposed consultation; and

the local of the medical and dental facility; and

the time and date of the appointment.

The children live with the mother at all times other than the periods specified in order 4, during which they will live with the father.

The children live with the father:

4.1 during school term time, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday

4.2 during school term time, from the conclusion of school on Wednesday until the commencement of school on Thursday in each other week

4.3 for one half of each school holiday which falls at the end of Terms 1, 2 and 3, being the first half in odd-numbered years and the second half in even-numbered years unless otherwise agreed in writing

4.4 for one half of school holiday which falls at the end of Term 4, being the first week and each alternate week thereafter until L completes his first year at high school and thereafter for the first half in odd-numbered years and the second half in even-numbered years, unless otherwise agreed in writing

Notwithstanding any other order the children live with the father on the following special days:

5.1 from 9:00am until 6:00pm on each Fathers Day

5.2 from 6:00pm on Christmas Eve until 6:00pm on Christmas Day in even-numbered years

5.3 from 6:00pm on Christmas until 6:00pm on Boxing Day in odd-numbered years

5.4 from 9:00am until 6:00pm on Orthodox Easter Day in odd-numbered years

5.5 from 9:00am until 6:00pm on Catholic Easter Sunday in odd-numbered years

unless otherwise agreed in writing.

The children live with the father from 9:00am until 6:00pm on two additional days of significance to him per calendar year, provided that he furnishes to the mother no less than 28 days written notice of the dates when he intends to exercise this provision and provided that the father does not nominate either child’s birthday, the mother’s birthday or any day specified in order 7.

Notwithstanding any other order the children will live with the mother on the following special days:

7.1 from 9:00am until 6:00pm on each Mothers Day

7.2 from 6:00pm on Christmas Eve until 6:00pm on Christmas Day in odd-numbered years

7.3 from 6:00pm on Christmas Day until 6:00pm on Boxing Day in even-numbered years

7.4 from 9:00am until 6:00pm on Orthodox Easter Day in even-numbered years

7.5 from 9:00am until 6:00pm on Catholic Easter Sunday in even-numbered years

unless otherwise agreed in writing.

The children live with the mother from 9:00am until 6:00pm on two additional days of significance to her in each calendar year, provided that she furnishes to the father no less than 28 days written notice of the dates when she intends to exercise this provision and provided that the mother does not nominate either child’s birthday, the father’s birthday or any day specified in order 5.

Neither parent denigrate or comment on the other parent’s mental health in the presence or hearing of the children.

10.

The parties execute changeovers at the children’s school on school days or on non-school days:

10.1 the mother collect the children from the front of the father’s home at the commencement of all periods of time with her, and

10.2 the father collect the children from the front of the mother’s home at the commencement of all periods of time with him

unless otherwise agreed in writing.

11.

Each of the parents allow and facilitate reasonable telephone contact for the children with the other parent.

12.

Each parent shall do all things necessary on his/her part to ensure that:

12.1 the children attend for confidential counselling with a suitably qualified professional nominated by the ICL in consultation with the single expert Dr Q (“the children’s counsellor”)

12.2 the children meet with the children’s counsellor as often as the counsellor recommends;

12.3 the children’s privacy with respect to their counselling is respected, specifically that neither parent shall ask or encourage the children to disclose anything they wish to discuss with the children’s counsellor, or what was said during discussions between the children and the children’s counsellor;

12.4 each parent is restrained, in proceedings pursuant to the Family Law Act, from requesting the issue of a subpoena on the children’s counsellor either to produce documents or to give evidence.

13.

The ICL has leave to provide a copy of the judgment to the children’s counsellor and the parent’s counsellor.

14.

Within 7 days of the date of these orders the parents arrange an appointment with the Independent Children’s Lawyer (“ICL”) so that she may explain the effect of these orders to the children.

15.

Within 30 days of the date of these orders each parent:

15.1 pay to the Legal Aid Commission of New South Wales a sum of $2,530 on account of the outstanding fees of Dr Q

15.2 pay to the Legal Aid Commission of New South Wales an amount already advised on account of his and her share of the costs of the ICL.

16.

That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

17.

That all material produced on subpoena be returned.

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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