COLE & SANTOS - [2016] FCCA 674

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLE & SANTOS

[2016] FCCA 674

Catchwords:

FAMILY LAW – Child – parenting orders – final orders – three children – best interests of the child considered – teenage children – teenage child subject to Orders – autism – commute.

CHILD SUPPORT – Child support assessment – whether to depart from child support assessment - no special circumstances.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DA, 65DAA

Child Support (Assessment) Act 1989 (Cth), ss.116, 117

Goode & Goode (2007) 36 Fam LR 422
MRR v GR (2010) 240 CLR 461

Gyselman & Gyselman [1991] 103 FLR 156

Applicant:

MR COLE

Respondent:

MS SANTOS

File Number:

SYC 1232 of 2013

Judgment of:

Chief Judge Pascoe

Hearing date:

17 December 2015

Date of Last Submission:

17 December 2015

Delivered at:

Sydney

Delivered on:

1 April 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr David Dura

Solicitors for the Respondent:

Paltos Milevski Family Lawyers

Solicitor for the Independent Children’s Lawyer:

Ms Karen Shae

(NSW Legal Aid)

ORDERS

BY CONSENT, THE COURT ORDERS THAT:

The Respondent Mother have the sole parental reasonability for the children:
(a)X (“X”) born on (omitted) 1997 presently aged 17 years; and
(b)Y (“Y”) born on (omitted) 1999 presently aged 16 years; and
(c)Z (“Z”) born on (omitted) 2002 presently aged 13 years; (“the children”).
The Mother will:
(a)notify the Applicant Father of any proposed decision relating to the long-term care, welfare and development of the children and the reasons for the proposal, such notification to be given in writing at least one month before a final decision being made other than in the case of an emergency;
(b)take into consideration any view expressed by the Father about the proposed decision; and
(c)inform the Father of her decision in writing by email.
The children live with the Mother.
There be no order as to time to be spent between the Father and X.
The parties be restrained and use their best endeavours so as to prevent any other person from making any derogatory comments to or about the other party or his or her relatives to or in the presence or hearing of the children.
Each of the parties shall notify the other of any serious and/or permanent health conditions that affect the children or either of them, including the results of medical testing to rule out any serious and/or permanent health condition.
The children continue to be enrolled and attend the following schools:
(a)Y – (omitted) School in (omitted).
(b)Z – (omitted) School in (omitted).

THE COURT ORDERS THAT:

There be no order as to time for Y to spend with the Father.
Z shall spend time with the Father as follows:
(a)During school terms, in a four week cycle:
(i)Week 1: No time;
(ii)Week 2: On Sunday, from 11:30am until 6:00pm;
(iii)Week 3: No time;
(iv)Week 4: On Saturday, from the conclusion of dance class (or 12-noon if…

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 COLE & SANTOS

Details

AGLC: Cole and Santos [2016] FCCA 674
Case: [2016] FCCA 674
Decision Date: 1 April 2016

CaseChat Overview and Summary

In the matter of *Cole & Santos*, Chief Judge Pascoe considered parenting orders concerning three children, X (aged 17), Y (aged 16), and Z (aged 13). The dispute involved the allocation of parental responsibility, living arrangements, and time spent between the children and their father. The court also addressed a request to depart from a child support assessment, which was ultimately not granted.

The primary legal issues before the court were the best interests of the children in relation to final parenting orders, specifically concerning the parental responsibility for the three teenage children, their living arrangements, and the time each child would spend with the father. The court was also required to determine whether there were special circumstances justifying a departure from the child support assessment.

The court made orders by consent, reflecting an agreement between the parties. The mother was granted sole parental responsibility for all three children, with the children to live with her. The father was to have no time with the eldest child, X, and no ordered time with Y. Specific, cyclical time arrangements were established for Z to spend with the father during school terms and holidays, with the father responsible for all transportation. The orders also included provisions for communication between the parents regarding the children's welfare, notification of health conditions, and a restraint on discussing the proceedings with the children. The court found no special circumstances to depart from the child support assessment.

Orders

Orders of the court

BY CONSENT, THE COURT ORDERS THAT:

The Respondent Mother have the sole parental reasonability for the children:

(a) X (“X”) born on (omitted) 1997 presently aged 17 years; and

(b) Y (“Y”) born on (omitted) 1999 presently aged 16 years; and

The Mother will:

(a) notify the Applicant Father of any proposed decision relating to the long-term care, welfare and development of the children and the reasons for the proposal, such notification to be given in writing at least one month before a final decision being made other than in the case of an emergency;

(b) take into consideration any view expressed by the Father about the proposed decision; and

The children live with the Mother.

There be no order as to time to be spent between the Father and X.

The parties be restrained and use their best endeavours so as to prevent any other person from making any derogatory comments to or about the other party or his or her relatives to or in the presence or hearing of the children.

Each of the parties shall notify the other of any serious and/or permanent health conditions that affect the children or either of them, including the results of medical testing to rule out any serious and/or permanent health condition.

The children continue to be enrolled and attend the following schools:

(a)Y – (omitted) School in (omitted).

(b) Z – (omitted) School in (omitted).

THE COURT ORDERS THAT:

There be no order as to time for Y to spend with the Father.

Z shall spend time with the Father as follows:

(a)During school terms, in a four week cycle:

(i) Week 1: No time;

(ii) Week 2: On Sunday, from 11:30am until 6:00pm;

(iii) Week 3: No time;

(iv) Week 4: On Saturday, from the conclusion of dance class (or 12-noon if there is no class) until Sunday 6:00pm.

(b) During Summer School holiday periods:

(i) From 11:00am on 22 December 2015 until 6:00pm on 24 December 2015;

(ii) From 11:00am on 9 January 2016 until 6:00pm on 16 January 2016;

(iii) Commencing from the 2016/2017 summer holidays, for two one-week periods (seven-days inclusive), being from 18 December to 24 December and as agreed in January;

(iv) For clarity, the Orders of 9 a) are suspended during all school holiday periods.

10.

The Father provide the Mother not less than 10 days’ notice in writing of his unavailability to spend time with Z regarding order (9)(a) herein.

11.

The Father provide the Mother not less than 60 days’ notice in writing of his unavailability to spend time with Z regarding order (9)(b) herein.

12.

The Father is responsible to facilitate all transportation needs and requirements for Z to spend time with him.

13.

Each party keep the other party informed of their current telephone number and current email address. In the case that a party’s telephone number and/or email address changes, the party whose number or address has changed is to inform the other party of the change and supply the new telephone number and/or email address to that party within 48 hours of the change.

14.

The Father is to inform the Mother as soon as practicable of:

(a) any illness or injury that may be suffered by Y and/or Z whilst they are in his care; and

(b) the name and contact details of any medical practitioner or healthcare provider upon whom Y and/or Z may attend from time to time.

15.

Each party be and hereby is, restrained from:

(a) Discussing these proceedings (or any of the issues raised in these proceedings) with or in the presence or hearing of any of the children, and;

(b) Showing any of the children any documents relating to these proceedings.

16.

Each party pay Legal Aid, by way of deposit into an identified fund, $110, in relation to the cancellation fee of the Single Expert Witness.

17.

Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are attached to these Orders.

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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