De Maio and Auguste - [2012] FMCAfam 173

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DE MAIO & AUGUSTE

[2012] FMCAfam 173

FAMILY LAW – Children – allegations of family violence – where mother and the ICL both oppose father spending time with the children – assessment of risk – no unacceptable risk of abuse – whether appropriate to make findings that alleged abuse did not occur – assessment of parenting capacity – nature of children's relationship with father – proceedings adjourned for approximately 12 months to assess development of children's relationship with father.

Family Law Act 1975 (Cth)
Federal Magistrates Court Rules2001
Federal Magistrates Court Regulations

A v A (1998) FLC 92-800
B & B (1993) FLC 92-357
Carpenter and Lunn (2008) FamCAFC 128
Champness & Hanson (2009) FamCAFC 96
Chappell (2008) FamCAFC 143
Collu & Rinaldo (2010) FamCAFC 53
Exelmans & Sully (2011) FamCA 3
Fitzpatrick (2005) FLC 93-227
Goode (2006) FLC 93-286
H & P (2005) FamCA 978
Hungerford & Tank (2007) FamCA 637
Irvine (1995) FLC 92-624
Jets & Maker (No.2) (2011) FMCAfam 1473
Johnson and Page (2007) FLC 93-344
M & M (1998) FLC 91-979
M & S (2006) FamCA 1408
Marsden & Winch (No.3) (2007) FamCA 1364
McCall & Clark (2009) FLC 93-405
McLeay (1996) FLC 92-667
Mills & Watson (2008) 39 Fam LR 52
MRR v GR (2010) FLC 93-424
Pender & Haywood [2007] FamCA 1526
Re Andrew (1996) FLC 92-692
Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334
Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321
Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192
Re: F – Litigants in Person Guidelines (2001) FLC 93-072
Roberts & Banks (2011) FamCA 662
Saxena (2006) FLC 93-268
Sealey & Archer [2008] FamCAFC 142
Sedgley (1995) FLC 92-623
Taylor & Barker (2007) FamCA 1246
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235
Watkins & Minnow (2010) FamCA 1059

Applicant:

MR DE MAIO

Respondent:

MS AUGUSTE

File Number:

MLC 767 of 2010

Judgment of:

Walters FM

Hearing dates:

19 – 22 September 2011

Date of Last Submission:

22 September 2011

Delivered at:

Melbourne

Delivered on:

9 March 2012

REPRESENTATION

Solicitors for the Applicant:

Unrepresented

Counsel for the Respondent:

Mr Henwood

Solicitors for the Respondent:

Randles Cooper & Co Pty Ltd

Counsel for the Independent Children’s Lawyer:

Mr Grigg

Solicitors for the Independent Children’s Lawyer:

Perry Weston

ORDERS

IT IS ORDERED THAT:

The mother have sole parental responsibility for the children [X] born [in] 2009 and [Y] born [in] 2010 (“the children”).
The children live with the mother.
Notwithstanding paragraph 1 above, in exercising sole parental responsibility in relation to major long-term issues, the mother must:
(a)consult the father in relation to any decision to be made about the relevant issue;
(b)make a genuine effort to come to a joint decision about the issue; and
(c)in the event that the parties are unable to come to a joint decision about the issue, notify the father of any decision relating to the issue within seven…

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 De Maio and Auguste

Details

AGLC: De Maio and Auguste [2012] FMCAfam 173
Case: [2012] FMCAfam 173
Decision Date: 9 March 2012

CaseChat Overview and Summary

The matter of De Maio and Auguste was before the Family Court of Australia, where the court was tasked with determining the parental responsibilities and contact arrangements for the two children of the parties, [X] born in 2009 and [Y] born in 2010. The court was required to consider the welfare and best interests of the children as the paramount consideration in making its determination.

The legal issues before the court included the allocation of parental responsibility, the determination of the living arrangements for the children, the extent of contact between the father and the children, and the conditions under which the father could exercise his parental responsibilities. The court also needed to consider the need for supervision and monitoring of the father's contact with the children due to concerns about his past behaviour and substance use.

In reaching its decision, the court considered evidence from various sources, including the Independent Children’s Lawyer, the parents, and expert witnesses. The court found that sole parental responsibility should be awarded to the mother due to her stability and the father’s past issues with substance abuse and erratic behaviour. However, the court also recognised the importance of the father’s role in the children’s lives and therefore imposed conditions on his contact to ensure the children's safety and well-being. These conditions included regular supervised contact, mandatory drug testing, and restrictions on alcohol consumption during contact periods. The court further ordered both parents to complete a Parenting Orders Program and refrain from discussing the proceedings in front of the children.

The court's final orders included awarding sole parental responsibility to the mother, setting out detailed contact arrangements for the father, and imposing various conditions to ensure the children's safety and well-being. These orders were designed to balance the children’s need for stability and continuity with the importance of maintaining a relationship with their father, subject to appropriate safeguards.

Orders

Orders of the court

IT IS ORDERED THAT:

The mother have sole parental responsibility for the children [X] born [in] 2009 and [Y] born [in] 2010 (“the children”).

The children live with the mother.

Notwithstanding paragraph 1 above, in exercising sole parental responsibility in relation to major long-term issues, the mother must:

(a) consult the father in relation to any decision to be made about the relevant issue;

(b) make a genuine effort to come to a joint decision about the issue; and

(c) in the event that the parties are unable to come to a joint decision about the issue, notify the father of any decision relating to the issue within seven days of making such decision.

Each party must:

(a) advise the other party immediately in the event that either child suffers any serious illness or injury; and

(b) authorise any medical professional upon whom either child may attend from time to time, to communicate with the other party regarding the child’s condition and/or requirements.

The mother must authorise all schools/kindergarten in which the children may attend from time to time to:

(a) provide to the father, at the expense of the father, copies of all school reports, school notices and school photographs in relation to the children; and

(b) permit the father to attend all school functions (including school concerts or parent/teacher interviews) to which parents are ordinarily invited.

Nothing in the within orders shall prevent either the father or the mother from having either child treated – as a matter of urgency – for any sudden injury or acute illness or other medical or dental emergency which may arise in relation to the child during their respective periods of care, but in the event of such treatment being required, the parent arranging such treatment must immediately notify the other parent of the following details:

(a) the name and contact details of the medical professional administering the treatment;

(b) the medical or other complaint for which the child was taken to the medical professional;

(d) the reasons for the prescription for or provision of such medication and/or treatment.

The father spend time and communicate with the children on an unsupervised basis at times to be agreed between the parties as follows:

(a) for a period of three months commencing from the date of these orders; twice per week, for a period of two hours on each occasion;

(b) thereafter, for a period of three months; twice per week, for a period for two hours on one occasion and three hours on the other occasion;

(c) thereafter, for a period of three months; twice per week, for a period of two hours on one occasion and four hours on the other occasion; and

(d) thereafter, until the matter returns for hearing: twice per week for a period of two hours on one occasion and five hours on the other occasion.

and in the event of no agreement, the parties shall have liberty to apply to the Court.

The contact periods referred to in paragraph 7 above must include time on the children’s birthdays and on occasions that are important to the father from a family or religious point of view.

Until further order, the father’s time spent with the children pursuant to paragraph 7 of these orders, shall take place with the changeover at the Contact Centre, or, if not available changeover is to take place at the police station or other public and secure venue as agreed by the parties and in the event of no agreement as nominated by the Independent Children’s Lawyer.

10.

The appointment of the Independent Children’s Lawyer shall remain in place until the completion of the proceedings or otherwise until further order.

11.

Until further order, the parties, their servants and agents be and are hereby restrained by injunction from:

(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other, and

(b) discussing these proceedings, to, with or in the presence or hearing of the said children (or any of them), and from permitting any other person to do so.

12.

Both parties must attend and complete, as soon as practicable, an appropriate Parenting Orders Program (such as, for example, the [omitted] – Parent Orders Programm) or other appropriate course or service (“the Program”) at such organisation as shall be specified by the independent children’s lawyer after consultation with the Senior Family Consultant in the Melbourne Registry of this Court, and, further, each party must;

(a) sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;

(b) pay and otherwise be responsible for all costs associated with the Program; and

(c) abide by all reasonable requests of any person directly or indirectly responsible for the conduct, administration or facilitation of the Program;

(d) without affecting the generality of the above requirements ─ as and when requires satisfactorily participate in and complete all recommended parts of the Program (including, but not limited to, some or all of the following:

(i) any relevant intake course or process, parent group, children’s group, individual sessions for parents and children; child focused mediation and/or Children’s Contact Services; and

(e) provide an appropriate certificate of completion of the Program to the solicitors for the other party, and to the independent children’s lawyer.

13.

For 24 hours immediately prior to the commencement of any time spent with the said children (including any period during which the said children live with him), and during all such time spent, the father be restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of, alcohol and/or any legal or illegal drug or substance, save and except for:

(a) any legal medication prescribed for the father by a registered medical practitioner, and taken or used by the father strictly in accordance with such prescription; and

(b) any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets, and taken or used by the father strictly in accordance with the directions appearing on such medication or pharmaceutical substance.

14.

Until further order, the father do undertake supervised drug screen testing (“the Testing”) as follows:

(a) the Testing do occur at a pathology centre or other appropriate place, as approved by the solicitors for the independent children’s lawyer from time to time;

(b) the Testing do occur randomly (but not less frequently than twice in each calendar month), and within 48 hours of the solicitors for the independent children’s lawyer making an appropriate request for the Testing to occur; and

(c) the results of the Testing, on each occasion, be forwarded ─ as soon as possible ─ to the solicitors for the mother and independent children’s lawyer.

15.

In the event of the father failing to comply with paragraph 15 of these orders or failing or refusing to undertake a supervised drug screen without a valid excuse having been provided to the Independent Children’s Lawyer, the Independent Children’s Lawyer must file an immediate application in a case seeking orders for the suspension of the father’s contact with the children.

16.

The independent children’s lawyer must provide a copy of these orders to the Department of Human Services within 14 days.

17.

The proceedings otherwise be adjourned to a date to be advised in March 2013.

AND THE COURT NOTES THAT:

18.

Pursuant to s 65DA(2) & 62B 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 Attachment and these particulars are included in these orders.

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.