Carone and Yantis - [2011] FamCA 853

FAMILY COURT OF AUSTRALIA

CARONE & YANTIS

[2011] FamCA 853

FAMILY LAW – CHILDREN – Best interests of the child – Whether there is an unacceptable risk of abuse or violence – Whether there is an unacceptable risk of emotional harm – Allegations of drug and alcohol use – Weight to be given to the child’s wishes – Whether the father should be restrained from bringing the child into contact with the child’s godmother and aunt – Whether the mother should be restrained from bringing the child into contact with her former partner – Sole parental responsibility – Where the parents are unable to effectively communicate with each other.

Leighton & Carey [2010] FamCAFC 94

Family Law Act 1975 (Cth) Sections 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) s 140

APPLICANT: MOTHER

Ms Carone

RESPONDENT FATHER:

Mr Yantis

FILE NUMBER:

PAC

5829

2008

DATE DELIVERED:

3 November 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Justice Loughnan

HEARING DATES:

5, 6, 7 July & 24 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT MOTHER:

Ms Conte Mills

SOLICITOR FOR THE APPLICANT MOTHER

Phillip A Wilkins & Associates

COUNSEL FOR THE RESPONDENT FATHER

Mr R. White

SOLICITOR FOR THE RESPONDENT FATHER

Tiyce & Partners Lawyers

COUNSEL FOR THE INDEPENDENT CHILD LAWYER

Mr W. Lloyd

SOLICITOR FOR THE CHILD

Gonzalez & Co

Orders
1.That all previous orders be discharged.
2.That the father shall have sole parental responsibility for N Yantis born … December 2002 (hereinafter “the child”).
3.Unless the parties otherwise agree, the child shall live with the mother as follows:
A.On a fortnightly cycle as follows:
i.on Thursday from after school until the commencement of school the next morning in the first week with the mother to collect the child from school at the commencement of her time with the child and to deliver the child to school at the conclusion of her time with the child.
ii.in the second week from after school on Friday until before school on Monday, and if the Monday is a public holiday, the mother shall spend time with the child until before school on Tuesday.

B.During the school holiday period as follows:
i.for the first half of the school holidays commencing at the end of terms one, two and three, commencing after the last day of the school term in even numbered years.
ii.for the second half of the school holiday periods commencing at the end of terms one, two and three in odd numbered years.
iii.for the first half of the school holiday period commencing at the end of term four, commencing after school on the last day of the term in even numbered years.
iv.for the second half of the school holiday period commencing at the end of term four in odd numbered years.
v.at such other times as agreed between the mother and father in writing.

4.If Fathers Day falls on a weekend when the child is not living with the father pursuant to these orders,…

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 Carone and Yantis

Details

AGLC: Carone and Yantis [2011] FamCA 853
Case: [2011] FamCA 853
Decision Date: 3 November 2011

CaseChat Overview and Summary

This matter concerned orders made by Justice Loughnan in the Family Court of Australia regarding the parental responsibility and living arrangements for a child, N Yantis. The dispute involved the father and mother of the child, and the court was required to determine the specific terms of parental responsibility, the child's living arrangements, and various ancillary matters concerning communication, education, and the child's welfare.

The court was tasked with establishing orders for sole parental responsibility, defining a detailed schedule for the child to live with the mother on a fortnightly cycle and during school holidays, and specifying alternative living arrangements for other times. Additionally, the court needed to address provisions for Father's Day and Mother's Day, specific holiday periods, collection and handover arrangements, the child's education, communication between parents and the child, and prohibitions against denigration, physical discipline, and drug use. The court also considered orders relating to medical treatment, circumcision, school reports, and the removal of the child from Australia.

Justice Loughnan ordered that the father shall have sole parental responsibility for the child. The court then set out a comprehensive schedule for the child to live with the mother on a fortnightly cycle, including specific arrangements for school days and weekends, and detailed provisions for school holiday periods across different terms and years. Further orders stipulated that the child shall live with the father at all other times, with specific provisions for Father's Day and Mother's Day. The court also made orders regarding the collection and handover of the child, the child's education at a Catholic school with the mother initially responsible for fees, and communication between the parents and the child. Prohibitions were placed on denigrating the other parent, physical discipline, drug use, and discussing disputes in the child's presence. The court also made orders to prevent the child's removal from Australia and requested the assistance of law enforcement agencies. The parties were given liberty to restore the matter within 28 days to address any discrepancies between the orders and the reasons for judgment.

Orders

Orders of the court

1. That all previous orders be discharged.

2. That the father shall have sole parental responsibility for N Yantis born … December 2002 (hereinafter “the child”).

3. Unless the parties otherwise agree, the child shall live with the mother as follows:

A. On a fortnightly cycle as follows:

i. on Thursday from after school until the commencement of school the next morning in the first week with the mother to collect the child from school at the commencement of her time with the child and to deliver the child to school at the conclusion of her time with the child.

ii. in the second week from after school on Friday until before school on Monday, and if the Monday is a public holiday, the mother shall spend time with the child until before school on Tuesday.

B. During the school holiday period as follows:

i. for the first half of the school holidays commencing at the end of terms one, two and three, commencing after the last day of the school term in even numbered years.

ii. for the second half of the school holiday periods commencing at the end of terms one, two and three in odd numbered years.

iii. for the first half of the school holiday period commencing at the end of term four, commencing after school on the last day of the term in even numbered years.

iv. for the second half of the school holiday period commencing at the end of term four in odd numbered years.

v. at such other times as agreed between the mother and father in writing.

4. If Fathers Day falls on a weekend when the child is not living with the father pursuant to these orders, the child shall spend time with the father on that weekend from after school on Friday until before school on Monday.

5. If Mothers Day falls on a weekend when the child is not living with the mother pursuant to these orders, the child shall spend time with the mother on that weekend from after school on Friday until before school on Monday.

6. That the child shall spend time with the father from after school or 3pm on Holy Thursday until before school on the following Tuesday in even numbered years.

7. That the child shall live with the father at all other times.

8. Unless otherwise agreed between the mother and father in writing, for the purposes of facilitating orders (3) to (7) inclusive herein:

A. The mother shall be responsible for collecting the child at the commencement of her time with the child pursuant to these orders:

i. from the child’s school if the child is attending school immediately prior to the commencement of her time with the child; or,

ii. from the KFC restaurant at Suburb W if the child is not attending school immediately prior to the mother’s time with the child

B. At the conclusion of the mother’s time with the child pursuant to these orders, the father shall be responsible for collecting the child from:

i. the child’s school if the child is attending school immediately after the conclusion of her time with the child; or

ii. the KFC at Suburb W if the child is not attending school immediately after the conclusion of the mother’s time with the child.

9. The father is at liberty to enrol the child into S Public School or into such other school on which the parties agree, for the balance of his primary school education and in the event that the agreed school is an independent or parochial school, until the father has paid employment and can afford to contribute, the necessary school fees shall be paid by the mother.

10. The mother shall have telephone communication with the child each Wednesday between 6:00pm and 6:30pm with the mother to initiate the telephone calls and the father to facilitate all such calls.

11. The father and mother are restrained by themselves and/or their servants and/or agents from denigrating the other parent or the family members of the other parent in the presence and/or hearing of the child and shall remove the child from the presence of any other person who is doing so.

12. The father and mother are restrained by themselves and/or their servants and/or agents from physically disciplining the child.

13. The father and mother are restrained from consuming illegal drugs for 12 hours before and during any period when the child is in their care and they are restrained from leaving the child in the care of any person who to their knowledge or observation has consumed or is likely to consume illegal drugs during those periods.

14. The parties are restrained from discussing any dispute between them in the presence or hearing of the child.

15. The mother and the father are to provide each other with the names and contact details of any medical practitioners treating the child as soon as possible and shall keep each other informed of any planned or emergency medical treatment received by the child as soon as practicable.

16. The father shall give the mother at least 6 weeks prior written notice if he proposes to have the child circumcised.

17. The father shall make available to the mother the child’s school reports and copies of applications for the purpose of purchasing the child’s school photographs at the mother’s expense.

18. For the purposes of Order 3B herein:

a. school holiday time shall commence after school on the last day of the term and shall conclude at 10:00am on the last day of the school holiday period.

b. changeover during the halfway point of the school holidays shall be at 6pm on the middle day of the school holidays or in the event that the holidays contain an even number of days, on the day following the middle day of the holidays.

c. If a pupil free holiday falls on a day immediately preceding the first or last day or a school holiday, then that day shall be added to the school holiday period.

19. Any agreed alterations to these Orders shall be reflected between the parties in writing for which purposes email or SMS message shall be acceptable.

20. Both the parents are restrained from removing or attempting to remove the child from the Commonwealth of Australia, unless by order of this court or with the express written consent of the other parent.

21. That the Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the Police forces in the States and Territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the child and to prohibit the child from removing or attempting to remove himself from the Commonwealth of Australia, unless by order of this court or with the express written consent of the other parent.

22. The Commissioner of the Australian Federal Police is requested to take all necessary steps to place the name of N Yantis, male, born … December 2002 on the report watch list, also know as the PACE alert system, at all points of arrival and departure in the Commonwealth of Australia and to maintain that entry for 5 years from the date of these orders.

23. When the child is living with the mother pursuant to these Orders in excess of four days, the father shall be at liberty to contact the child by telephone between 6:00pm and 6:30pm on the fifth day that the child is spending time with the mother and every fifth day thereafter, and the mother shall facilitate such contact.

24. The Court Noted that the parties agree that the child should be educated at a Catholic School in the area of the home of the parent with whom he lives for most of the time.

25. The Court Noted that the mother agrees to pay the fees associated with the child’s attendance at a Catholic School until such time as the father is employed and able to contribute.

26. The parties are at liberty to restore the matter before Justice Loughnan within 28 days of the date of delivery of judgment, or such further time as they might agree, upon notice to the Court and each other, in relation to any agreement about a change to the wording of the Orders or an argument that the wording does not reflect the reasons for judgment.

27. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the attached Fact Sheet.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.