FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Castano & Castano [2023] FedCFamC2F 1104
File number(s): MLC 8121 of 2022 Judgment of: JUDGE GLASS Date of judgment: 29 August 2023 Catchwords: FAMILY LAW – PARENTING – whether Father with stimulant use disorder in sustained remission presents an unacceptable risk of harm to eleven year old child Legislation: Australian Passports Act 2005 s11(1)(b)
Family Law Act 1975 (Cth) ss 13C, 60B, 60CA, 60CC, 61DA, 65Y
Cases cited: Adamson & Adamson (2014) FLC 93-622
Cao & Cao (2018) FLC 93-880
Carlson & Fluvium [2012] FamCA 32
Darmadi & Binjori (2023) FLC 94-136
Eastley & Eastley (2022) FLC 94-094
Flora & Flora [2012] FamCA 493
Fox v Percy (2003) 214 CLR 118
Grier & Grier (2023) FLC 93-135
Isles & Nelissen (2022) FLC 94-092
Keane & Keane & Anor (2021) 62 Fam LR 190
Maclean & Greenwood (2022) FLC 94-117
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-304
Oberlin & Infeld (2021) FLC 94-017
Oswald & Karrington (2016) FLC 93-726
Vigano & Desmond (2012) FLC 93-509
Division: Division 2 Family Law Number of paragraphs: 105 Date of last submission/s: 16 August 2023 Date of hearing: 14 – 16 August 2023 Place: Melbourne Counsel for the Applicant: Mr McIvor Solicitor for the Applicant: Forte Family Lawyers Counsel for the Respondent: Mr Hutchings Solicitor for the Respondent: Garland Hawthorn Brahe Lawyers Counsel for the Independent Children's Lawyer: Mr Allen Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 8121 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CASTANO
Applicant
AND: MS CASTANO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
29 AUGUST 2023
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged with respect to X born in 2012.
2.Subject to the conditions in paragraph 3, the Mother have sole parental responsibility for the child X born in 2012.
3.Before the Mother makes any major long-term decision concerning the care, welfare and development of the child, she shall notify the Father of her proposal, including details of schools to be considered and the names and addresses of medical and other health professionals to whom the child is being referred and give him at least fourteen days to consider his position and respond. If the Father responds within fourteen days, the Mother shall consider his views and advise him of either her acceptance or rejection of his views and her relevant reasons. If an urgent decision is required the Mother will notify the Father of her proposal and the reason for the urgency, and request that he respond on an urgent basis.
4.X live with the Mother.
5.Until the conclusion of Term 3 2023, X spend time and communicate with his Father each Thursday from the conclusion of school to 7.15pm or such other period of afterschool hours on Thursdays to 7.15pm which can be accommodated by the supervisor, with…
Continue reading Castano & Castano
Sign in free to access the full text
- AGLC
- Castano & Castano [2023] FedCFamC2F 1104
- Case
- [2023] FedCFamC2F 1104
- Decision Date
CaseChat Overview and Summary
The court had to consider whether Mr Castano's condition, despite being in sustained remission, presented a risk to X's welfare. This involved assessing the father's adherence to his treatment plan and the potential impact of any lapses on X's safety and emotional well-being. The court balanced the child's need for stability and the importance of both parents in his life, while also ensuring protective measures were in place.
Judge Glass concluded that while Mr Castano's condition in sustained remission did not inherently make him a risk, the court needed to impose stringent conditions to monitor and manage any potential risks. The court ordered that Ms Castano have sole parental responsibility for X, but with specific provisions for Mr Castano to have supervised and regular contact with X. This included detailed schedules for supervised visits during school terms and holidays, and specific conditions for contact during Jewish festivals. Additionally, the court mandated regular drug testing for Mr Castano to ensure compliance with his treatment plan and to promptly address any relapse.
The final orders discharged previous parenting orders, granted sole parental responsibility to the mother, and set out a comprehensive schedule for the father's contact with the child, including specific times and conditions for supervision and communication. The court also included provisions for drug testing, reporting, and restrictions on both parents to prevent them from discussing the proceedings or each other negatively in front of X.
Orders
Orders of the court
MLC 8121 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR CASTANO
Applicant
AND:
MS CASTANO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
29 AUGUST 2023
THE COURT ORDERS THAT:
1. All previous parenting Orders be discharged with respect to X born in 2012.
2. Subject to the conditions in paragraph 3, the Mother have sole parental responsibility for the child X born in 2012.
3. Before the Mother makes any major long-term decision concerning the care, welfare and development of the child, she shall notify the Father of her proposal, including details of schools to be considered and the names and addresses of medical and other health professionals to whom the child is being referred and give him at least fourteen days to consider his position and respond. If the Father responds within fourteen days, the Mother shall consider his views and advise him of either her acceptance or rejection of his views and her relevant reasons. If an urgent decision is required the Mother will notify the Father of her proposal and the reason for the urgency, and request that he respond on an urgent basis.
4. X live with the Mother.
5. Until the conclusion of Term 3 2023, X spend time and communicate with his Father each Thursday from the conclusion of school to 7.15pm or such other period of afterschool hours on Thursdays to 7.15pm which can be accommodated by the supervisor, with such time to be supervised by B Contact Service, save that the supervisor is not required to supervise the collection of X from school by his Father, but must be arranged by the Father to be in attendance within 15 minutes if the Father has collected X from school.
6. Each parent do all acts and things necessary to meet (or communicate at the discretion of the psychologist) with X’s psychologist prior to late 2023 to ensure there is a shared understanding of X’s psychological and emotional needs and that both parents are providing reassuring messages to X, if required, about the transition to unsupervised time.
7. During the Term 3 holidays in 2023, X spend unsupervised time with his Father on four occasions, for two hours on the first occasion, three hours on the second occasion and for four hours on the two remaining occasions at times as agreed between the parents and in default of agreement:
(a) Sunday 17 September 2023 from 12.00pm until 2.00pm (noting that Rosh Hashanah is 15 – 17 September 2023);
(b) Thursday 21 September 2023 from 11.00am until 2.00pm;
(c) Tuesday 26 September 2023 from 10.00am until 2.00pm (noting that Yom Kippur is 24 – 25 September 2023); and
(d) Sunday 1 October 2023 from 10.00am until 2.00pm (noting that Sukkot is 29 September – 6 October 2023).
8. Changeovers occur at an agreed place and in default of agreement, at the Mother’s residence.
9. Commencing Term 4 in 2023, X spend time with his Father in a fortnightly cycle during the school term:
(a) in week one:
(i) Wednesday from after school (or 3:00pm if a non-school day) until 7:00pm; and
(ii) Saturday from 10:00am until 2:00pm.
(b) in week two:
(i) Wednesday from after school (or 3:00pm if a non-school day) until 7:00pm; and
(ii) Sunday from midday until 4:00pm.
10. During the summer school holidays 2023 (13 December 2023 - 31 January 2024), X spend time with his Father:
(a) each Wednesday from 10:00am until 4:00pm (commencing 13 December);
(b) each alternate Friday from midday until 5:00pm (commencing 15 December 2023);
(c) each alternate Sunday from 10:00am until 4:00pm (commencing 17 December 2023);
(d) each alternate Saturday from 10:00am until 4:00pm (commencing 23 December 2023).
11. Commencing Term 1 in 2024, X spend time with his Father during school term in a fortnightly cycle:
(a) in week one:
(i) Wednesday from after school (or 3:00pm if a non-school day) until before school Thursday; and
(ii) Saturday from 10:00am until 6:00pm.
(b) in week two:
(i) Wednesday from after school (or 3:00pm if a non-school day) until before school Thursday.
12. During the first term school holidays 2024, X spend time with his Father as agreed between the parents and in default of agreement:
(a) Saturday 20 April 2024 and Sunday 21 April 2024 from 10:00am until 6:00pm each day; and
(b) Wednesday 24 April 2024 from 3.30pm until 3.30pm.
13. Commencing Term 2 2024, X spend time with his Father during school term in a fortnightly cycle:
(a) in week one:
(i) Wednesday from after school (or 3:00pm if a non-school day) until before school Thursday; and
(ii) Saturday from 10:00am Saturday until midday Sunday.
(b) in week two:
(i) Wednesday from after school until before school Thursday; and
(ii) Friday from after school until 5.30pm (or 30 minutes before sundown if that is earlier).
14. During the second term school holidays 2024, X spent time with his Father as agreed between the parents and in default of agreement:
(a) Saturday 29 June 2024 and Sunday 30 June 2024 from 10:00am to 6:00pm each day; and
(b) from 3.30pm Wednesday to 3:30pm Friday 5 July 2024.
15. During the third term school holidays 2024, X spend time with his Father as agreed between the parents and in default of agreement:
(a) from 10 am Saturday until 6:00pm Sunday; and
(b) from 10am Wednesday until 6:00pm; and
(c) from 10am Friday until 45 minutes before sundown.
16. Commencing Term 4 in 2024, X spend time with his Father during school terms in a fortnightly cycle
(a) in week one:
(i) Wednesday from after school (or 3:00pm if a non-school day) until before school Thursday; and
(ii) Friday from the conclusion of school (or 3.00pm if a non-school day) until midday on Sunday.
(b) in week two:
(i) Wednesday from after school (or 3:00pm if a non-school day) until before school Thursday.
17. From the conclusion of Term 4 in 2024, X spend time with his Father during school holidays at times agreed between the parents and in default of agreement, X spend time with his Father:
(a) during school term holidays, in the first half from the conclusion of school or 3.30pm on Friday to 6:00pm on Sunday, and from 10:00am on Wednesday to 6:00pm on Thursday; and
(b) during summer school holidays, each alternate week from 10:00am on Friday to 6:00pm on Sunday and from 10:00am on Wednesday to 6:00pm on Thursday.
18. X spend time with his Father by agreement during Jewish Festivals, commencing in Term 4 2023, as follows:
(a) not less than one additional occasion during the Festival of Passover, with at least one occasion;
(b) at least one occasion during Shavuot, unless Shavuot falls on a weekend, in which case time will proceed as normal;
(c) at least one occasion during Rosh Hashanah;
(d) on the afternoon before Yom Kippur, with the Father to spend time with X if a school day from the conclusion of school until 45 minutes before sundown;
(e) not less than one additional occasion during the period of Sukkot/Shemini Atzeret/Simchat Torah, with at least one occasion;
(f) not less than one additional occasion during Chanukah; and
(g) at other times by agreement in writing.
19. X’s time with the Father be suspended as follows:
(a) if requested by the Mother with not less than thirty days’ notice, for a period of up to fourteen days during summer school holidays commencing 2024;
(b) on the Mother’s birthday, from midday until 4:00pm;
(c) on the child's birthday, from 9:00am until 1:00pm; and
(d) on Mother's Day.
20. Notwithstanding any other Order, X’s time with the Mother be suspended and X spend time with the Father as follows:
(a) on the Father’s birthday for 4 hours as agreed;
(b) on the child’s birthday for 2 hours as agreed; and
(c) on Father’s Day for 4 hours as agreed.
21. X communicate with the Father by FaceTime or telephone at any other reasonable time in accordance with X’s wishes, with X to initiate the call and the Mother to facilitate the same.
22. From the time that he attains the age of 17 years, X be permitted to spend time and communicate with his Father in accordance with his wishes, and the Father must ensure that X notifies the Mother of his whereabouts.
23. The Father is to undertake a supervised hair follicle test through a workplace drug testing service in late 2023 and in early, mid and late 2024 and each year thereafter and for this purpose the Father:
(a) must maintain his head hair length at not less than 3.9 cm for the purpose of providing a sample; and
(b) must not bleach, dye or otherwise alter his hair during the period of testing; and
(c) must attend at an authorised collection service to provide the sample; and
(d) is wholly responsible for the costs of the sample collection, analysis and reporting; and
(e) must provide a copy of the results to the Mother and these orders authorise the testing service to send the results directly to the Mother at a nominated email address.
24. Within 24 hours of receiving a written request from the Mother sent prior to 1.00pm on any day, and no more than once every two months, the Father must undergo a supervised urine test for the detection of illicit substances by an accredited collection and pathology service compliant with AS/NZS 4308:2008 and the Father is responsible for the costs of such collection and analysis and providing a copy of the results to the Mother.
25. Any urine test undertaken by the Father is to be random and supervised and if possible, prior to testing he is to be inspected for the presence of any artificial devices and any synthetic urine samples.
26. If the Father fails, refuses or neglects to comply with Orders to provide hair follicle and urine tests, or in the event the Father returns a positive hair follicle or urine test for illicit substances, or he otherwise provides evidence that he has suffered a lapse or relapse, then X’s usual time with him in accordance with these Orders shall be immediately suspended until such time as the Father is able to produce a clean hair follicle test, or the parties are otherwise satisfied that time should recommence in accordance with the usual operative Orders.
27. If paragraph 26 above becomes operative, X will spend time and communicate with his Father as agreed between the parents and in default of agreement on a professionally supervised basis.
28. If the parents are unable to agree upon the interpretation of arrangements pursuant to these Orders or in the event time has ceased in accordance with the Orders, and the parents cannot agree upon re-implementation of arrangements for X to spend time with his Father, each parent do all acts and things necessary to engage one of the following at the Father’s expense, with the choice of practitioner in default of agreement based on the earliest available to assist;
(a) clinician/therapist at C Therapy Centre nominated by the practice manager of that centre; and
(b) D Psychology Centre; (Ms E and Mr F).
29. The parties are permitted to provide a copy of these Orders, the Court’s reasons published this day, together with Ms G’s reports, to any practitioner appointed in accordance with the preceding paragraph.
30. The Father is to continue to attend upon his treatment team of Dr H and Ms K at a frequency recommended by them.
31. The Father is to comply with all reasonable directions of his treating psychiatrist and psychologist.
32. Should the Father relapse, he must notify the Mother as soon as practicable or authorise a professional service or medical practitioner to do so.
33. The Father must authorise a letter at his expense from his treating psychologist Ms K and treating psychiatrist Dr H, as to the Father’s compliance with his mental health treatment plan (including attendance at appointments and compliance with taking medication) and continued drug use remission, to be provided directly to the Mother from the practice on a quarterly basis commencing late 2023.
34. The Father is responsible for the cost of any letter of report provided in accordance with paragraph 32.
35. The Father must keep the Mother notified of his treating practitioners’ details, namely the details of his GP, treating psychiatrist, and treating psychologist (if there is one). Any change must be notified to the Mother within 7 days of any change.
36. The Father be permitted to attend any school events normally attended by parents, provided that he remain at least 10 metres from the Mother at all times while at any such event and does not attempt to approach the Mother or otherwise attempt to engage with her, unless agreed prior to the event in writing.
37. The Father is authorised and permitted, at his expense, to have access to information from the child’s school usually provided to parents including copies of school photographs and order forms, newsletters and school reports and is permitted to attend alone at parent teacher interviews arranged at a separate time to the Mother.
38. The Mother and Father notify the other as soon as possible of any significant or serious illness or injury suffered by X when in their care.
39. Unless in the case of an emergency, the parties communicate only using a messaging app unless otherwise agreed, with such correspondence to be in relation to children and parenting arrangements only.
40. Each party shall notify the other of any change of address and contact telephone number within 48 hours of such change.
41. The Mother continue to be permitted to apply for and obtain the issue of Australian passports (an Australian Travel Document) for the child X born in 2012 and any need for the Father to sign a Child Passport Application consenting to the issue of Australian Passports to the said child be dispensed with.
42. That the child X born in 2012 be permitted to travel internationally as provided by s11(1)(b) of the Australian Passports Act 2005.
43. Pursuant to section 65Y of the Family Law Act 1975, the Mother be authorised to remove the child X from the Commonwealth of Australia for the purposes of overseas travel provided the following conditions are met:
(a) no less than 30 days prior to any proposed overseas travel, the Mother provide to the Father the following:
(i) copies of final travel itinerary and return airfares for the child, including all countries of stopover or final destination; and
(ii) dates for confirmation of makeup time if any time between the child and the Father would be affected by the proposed travel and a suspension of time is not in operation as otherwise provided in these Orders.
44. The parties are restrained by injunction from denigrating, criticising, abusing or belittling the other or members of their extended families, or discussing these proceedings in the presence or hearing of the children or any of them or allowing anyone else to do so.
45. The Father is restrained from ingesting, using, handling or being under the influence of any illicit drugs.
46. The Father is restrained from being under the influence of alcohol (over .05%) or non-prescribed medication (save for medications that can be purchased over the counter and taken in accordance with direction on the packet) at any time that X spends time with him.
47. The Father is restrained from withholding from the Mother the results once available of any Hair Follicle Test he undertakes.
48. The Mother be and is hereby, by herself or her servants or agents, restrained by injunction from:
(a) discussing allegations in these Court proceedings with X;
(b) discussing the Father’s drug addiction or drug use with X;
(c) discussing any dispute between the Father and Mother with X;
(d) asking the child to relay messages to the Father; and
(e) denigrating, criticising or blaming the Father, including for any restriction in him spending time with the child, to or in the presence of the child.
49. The Father be and is hereby, by himself or his servants or agents, restrained by injunction from:
(a) discussing allegations in these Court proceedings with X;
(b) discussing his drug addiction or drug use with the child;
(c) discussing any dispute between the Mother and Father with the child;
(d) asking X to spend more time with him, including overnight time;
(e) asking X to relay messages to the Mother, including any requests for additional time; and
(f) denigrating, criticising or blaming the Mother, including for any restriction in him spending time with the children, to or in the presence of the children.
50. The parents may, in consultation with professionals involved with themselves or X, agree from time to time in writing to communicate matters to X that are otherwise restrained by injunctions in paragraph 48 and 49.
51. Each of the parties are permitted to provide a copy of these Orders made in respect of X to:
(a) any school attended by X, with a request that the Orders be kept securely and viewed only by the Principal and their designated staff member/s as required;
(b) any medical or other health professional assisting the Mother or Father or the child; and
(c) any government agency, as required, including the Australian Passport Office.
52. The Independent Children’s Lawyer is to meet with the child as soon as practicable after the date of these Orders for the purpose of explaining the effect and the purpose of these Orders, NOTING THAT Ms N may attend the meeting if she wishes to attend.
53. The Independent Children’s Lawyer be discharged after compliance with the preceding paragraph.
54. All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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.