Marquez & Cisternino - [2023] FedCFamC1F 875

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Marquez & Cisternino [2023] FedCFamC1F 875

File number(s): BRC 8950 of 2021

Judgment of: CAREW J

Date of judgment: 20 October 2023

Catchwords: FAMILY LAW – CHILDREN – Where the father has convictions relating to child exploitation material – Where the father concedes any time spent with the child should be supervised, however, does not concede that he poses an unacceptable risk of harm to the child – Where the material accessed by the father was described by the sentencing judge in 2016 as “[…]” – Where the father was sentenced to a further term of imprisonment for further offences in 2021 – Where the father continues to minimise his offending behaviour – Where the father also has a history of alcohol and prescription drug abuse – Finding that the father poses an unacceptable risk of harm to the child – Where an order for long-term supervision is not in the child’s best interests – ICL to provide reasons for judgment to the Department of Child Safety, Seniors and Disability Services to ensure welfare of relative children not directly related to these proceedings

Legislation:
Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) s 50(1)

Evidence Act 1995 (Cth) ss 128, 140

Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 65D, 65DAA, 65DAC

Penalties and Sentences Act 1992 (Qld) s 93(1)

Cases cited:
Baghti & Baghti and Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC 93–637

Eastley & Eastley [2022] FedCF1A 101

Isles and Nelissen [2022] FedCFamC1A 97

Johnson & Page (2007) FLC 93–344

M v M (1988) 166 CLR 69 (“M & M”).

N and S and the Separate Representative (1996) FLC 92–655

Number of paragraphs: 76

Date of hearing: 14, 15, 17, 18 August 2023

Place: Brisbane

Counsel for the Applicant: Ms Dart

Solicitor for the Applicant: Hooper & Mill Family Lawyers

Counsel for the Respondent: Mr Hughes

Solicitor for the Respondent: Jurgensen Horne Lawyers

Counsel for the Independent Children’s Lawyer Ms Murphy

Solicitor for the Independent Children’s Lawyer Legal Aid Queensland

ORDER

BRC 8950 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MARQUEZ
Applicant

AND:
MR CISTERNINO
Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAREW J

DATE OF ORDER:

20 OCTOBER 2023

THE COURT ORDERS THAT:
1.All previous Orders are discharged.
2.The mother shall have sole parental responsibility for the child, X born in 2017 (“the child”).
3.In the exercise of the mother’s parental responsibility, the mother shall provide the father with updates in relation to the child’s health and education as follows:
(a)The mother shall provide an update by 31 March, 30 June, 30 September and 31 December each year to an email address nominated by the father;
(b)The update shall include an update on the child’s education, including redacted school reports with redactions limited to anything that may identify the school the child attends or where the child resides;

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 Marquez & Cisternino

Details

AGLC: Marquez & Cisternino [2023] FedCFamC1F 875
Case: [2023] FedCFamC1F 875
Decision Date: 20 October 2023

CaseChat Overview and Summary

The case between Marquez and Cisternino involved a dispute regarding the care and supervision of their child, X, born in 2017. The matter was heard and determined by the Family Court of Australia. The primary concern was the father’s criminal history, which included convictions for accessing child exploitation material, and his continuous minimization of this behavior despite agreeing that any contact with the child should be supervised. The father's history of substance abuse further complicated the situation.

The court had to decide whether the father posed an unacceptable risk of harm to the child, considering his criminal history and ongoing denial of his actions. The court also needed to determine the best interest of the child regarding the father’s contact and communication, given the father's criminal conduct and lack of accountability. The court examined the impact of the father's criminal activities and substance abuse on the child’s welfare.

The court concluded that the father’s criminal behavior and failure to acknowledge his actions presented an unacceptable risk of harm to the child. Despite the father's concession for supervised contact, the court found that an order for long-term supervision was not in the child's best interests. The court granted sole parental responsibility to the mother, prohibiting the father from any contact or communication with the child, except for sending gifts and cards on specified occasions. The court also issued restraining orders to protect both the child and the mother from the father’s approaches. The independent children’s lawyer was directed to provide reasons for the judgment to the Department of Child Safety, Seniors and Disability Services.

The final orders included granting the mother sole parental responsibility, prohibiting the father from any contact with the child except for sending cards and gifts on specific holidays, and issuing restraining orders to protect the mother and child from the father’s approaches. The court emphasized the importance of the child’s safety and well-being, ensuring that the father’s criminal history and lack of accountability did not jeopardize the child’s welfare.

Orders

Orders of the court

1. All previous Orders are discharged.

2. The mother shall have sole parental responsibility for the child, X born in 2017 (“the child”).

3. In the exercise of the mother’s parental responsibility, the mother shall provide the father with updates in relation to the child’s health and education as follows:

(a) The mother shall provide an update by 31 March, 30 June, 30 September and 31 December each year to an email address nominated by the father;

(b) The update shall include an update on the child’s education, including redacted school reports with redactions limited to anything that may identify the school the child attends or where the child resides;

(c) The update shall include any update with respect to any major long term medical issue impacting the child, if any, including any medical reports in relation to such issue with redactions to such reports limited to anything that may identify the school the child attends, the child’s medical practitioner, or where the child resides.

4. The child shall live with the mother.

5. The father shall spend no time with the child nor communicate with him other than as provided by this Order.

6. The father shall be at liberty to send gifts and/or cards to the child on the child’s birthday, Christmas, and Easter. For this purpose, the mother shall:

(a) Within 7 days of the date of this Order, provide to the father, in writing, details of a PO Box the father can send the gifts and/or cards to;

(b) check the PO Box at times proximate to the nominated occasions and provide the gifts and/or cards to the child upon receipt; and

7. Pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth), the mother shall be at liberty to take the child X born in 2017 from the Commonwealth of Australia to a place outside of Australia.

8. Pursuant to s 11(b) of the Australian Passports Act 2005 (Cth), the child X born in 2017 is to be issued with an Australian passport (including any renewals for such passport) and the need for the father’s consent to the issuing/renewal of the passport is dispensed with.

9. The father is restrained, and an injunction hereby issues restraining the father from:

(a) Contacting or approaching, or attempting to contact or approach the child, other than in accordance with this Order;

(b) Contacting or approaching, or attempting to contact or approach the mother, other than in accordance with this Order;

(d) Attending upon the mother’s current residence or any residence the mother may reside at from time to time.

10. The independent children’s lawyer is requested to forthwith provide a copy of the reasons for judgment dated 20 October 2023 to the Department of Child Safety, Seniors and Disability Services for their information, with their notice being directed to paragraphs [36] – [54], [57] – [61], [72] – [76] in particular.

11. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order 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 this Order.

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

The ICL recommends an order for no time or communication between the father and the child other than by sending a gift and card on the child’s birthday, at Easter and at Christmas. The precise terms of the order recommended by the ICL are set out in exhibit 17.BACKGROUND The mother and father commenced a relationship in early 2016 and separated two years later, in September 2018. The applicant mother, Ms Marquez, was born in 1995 and is 27 years of age. The mother works as a consultant at E Company and as an allied health worker at F Company. The mother lives with her partner, Mr G in a four-bedroom home in Brisbane. Their relationship commenced in mid-2019, although they commenced living together two months earlier, after the mother expressed a need to find a place to live closer to work. Mr G, who at the time was a colleague, had two spare bedrooms at the house he was renting, which he offered to the mother. Mr G is currently working as an operator at H Company. The mother and Mr G have one child together, J, who is currently one year old. The respondent father, Mr Cisternino, was born in 1986 and is 37 years of age. He is currently working from home as a sales consultant whilst studying for a qualification through TAFE. The father lives alone in a small two-bedroom residence in Brisbane. There is one child of the relationship, X born in 2017. X commenced formal schooling this year. The father has a criminal history including convictions relating to child exploitation material. The father served part of a two-year sentence in prison in 2016 before being released on probation. In 2021, the father was again convicted of charges relating to child exploitation material. The father was sentenced to a period of imprisonment and released on parole. The father has also been convicted on multiple charges of failing to meet his probation reporting requirements. After separation, from September 2018 to October 2018, the parents agreed to an informal equal time arrangement with the child spending six nights per fortnight with the father. The mother contends that she felt pressured into agreeing to equal time and did not think it was in the child’s best interests. I accept her evidence. In October 2018, the mother engaged solicitors and instructed them to write to the father to change the care arrangements. Consequently, from November 2018, the child lived primarily with the mother and spent time with the father for three nights per fortnight. From March 2019, the parents returned to an equal shared care arrangement, but with changeovers occurring every three days. This arrangement continued until approximately July 2019, when the father’s time with the child was again reduced. The father then spent mainly weekend time with the child including overnights until 2020 when the father was arrested and charged with further offences relating to child exploitation material. Proceedings were commenced by the mother in 2021, after the mother became aware the father was to be released on parole.

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.

File number(s):	BRC 8950 of 2021
Judgment of:	CAREW J
Date of judgment:	20 October 2023
Catchwords:	FAMILY LAW – CHILDREN – Where the father has convictions relating to child exploitation material – Where the father concedes any time spent with the child should be supervised, however, does not concede that he poses an unacceptable risk of harm to the child – Where the material accessed by the father was described by the sentencing judge in 2016 as “[…]” – Where the father was sentenced to a further term of imprisonment for further offences in 2021 – Where the father continues to minimise his offending behaviour – Where the father also has a history of alcohol and prescription drug abuse – Finding that the father poses an unacceptable risk of harm to the child – Where an order for long-term supervision is not in the child’s best interests – ICL to provide reasons for judgment to the Department of Child Safety, Seniors and Disability Services to ensure welfare of relative children not directly related to these proceedings
Legislation:	Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) s 50(1) Evidence Act 1995 (Cth) ss 128, 140 Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 65D, 65DAA, 65DAC Penalties and Sentences Act 1992 (Qld) s 93(1)
Cases cited:	Baghti & Baghti and Ors [2015] FamCAFC 71 Banks & Banks (2015) FLC 93–637 Eastley & Eastley [2022] FedCF1A 101 Isles and Nelissen [2022] FedCFamC1A 97 Johnson & Page (2007) FLC 93–344 M v M (1988) 166 CLR 69 (“M & M”). N and S and the Separate Representative (1996) FLC 92–655
Number of paragraphs:	76
Date of hearing:	14, 15, 17, 18 August 2023
Place:	Brisbane
Counsel for the Applicant:	Ms Dart
Solicitor for the Applicant:	Hooper & Mill Family Lawyers
Counsel for the Respondent:	Mr Hughes
Solicitor for the Respondent:	Jurgensen Horne Lawyers
Counsel for the Independent Children’s Lawyer	Ms Murphy
Solicitor for the Independent Children’s Lawyer	Legal Aid Queensland

BRC 8950 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS MARQUEZ Applicant
AND:	MR CISTERNINO Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CAREW J
DATE OF ORDER:	20 OCTOBER 2023