Matera and Matera - [2013] FCCA 675

FEDERAL CIRCUIT COURT OF AUSTRALIA

MATERA & MATERA

[2013] FCCA 675

Catchwords:
FAMILY LAW – Parenting – allegation of sexual abuse by the father – determination of question of unacceptable risk – no such risk – mother’s own history of sexual abuse and longstanding present personality disorder – history of the mothers disruption of the children’s relationship with the father – orders crafted to repair the child-father relationship – children to continue to primarily reside with mother – mother on notice as to consequences of her failure to comply with orders.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZN and Part VII

Briginshaw v Briginshaw (1938) 60 CLR 336
AMS and AIF (1999) 24 Fam LR 756
Goode v Goode (2007) 36 Fam LR 422
MRR v GRR [2010] HCA 4
Collu & Rinaldo [2010] FamCAFC 53
Mazorski v Albright [2007] FamCA 520
McCall & Clark[2009] FamCAFC 92
Lansa & Clovelly [2010] FamCA 80

Applicant:

MS MATERA

Respondent:

MR MATERA

File Number:

SYC 243 of 2011

Judgment of:

Judge Foster

Hearing dates:

20, 21, 22 March, 20, 21 May and 20 June 2013

Date of Last Submission:

20 June 2013

Delivered at:

Wollongong

Delivered on:

28 June 2013

REPRESENTATION

Counsel for the Applicant:

Mr Guterres

Solicitors for the Applicant:

Rachel Stubbs & Associates

Counsel for the Respondent:

Ms Nash

Solicitors for the Respondent:

B Hayward & Co

Counsel for the Independent Children’s Lawyer:

Mr Ladopoulos

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Wollongong

ORDERS

That the mother and father have equal shared parental responsibility for the children [Y] born [in] 2007, [Z] born [in] 2008.
That the said children live with the mother.
That the father spend time with [X] as agreed between the mother and father having regard to the child’s reasonably expressed wishes.
That the children [Y] born [in] 2007, [Z] born [in] 2008 spend time with the father:
(a)For a period of 3 months from the date of the orders between 10.00 am and 4.00 pm each Saturday with handover of the children at the commencement and conclusion of the father’s time to occur at the [omitted] Catholic Care Contact Centre;
(b)Thereafter for a period of 3 months 9.00 am and 5.00 pm each Saturday with handover of the children at the commencement and conclusion of the father’s time to occur at the [omitted] Catholic Care Contact Centre;
(c)Thereafter and until [Y] attains the age of 7 years, each alternate weekend from 9.00 am and 5.00 pm on Saturday and 9.00 am and 5.00 pm on Sunday with handover of the children at the commencement and conclusion of the father’s time to occur at the McDonalds Family Restaurant, [suburb omitted];
(d)Thereafter for a period of 6 months, commencing 10 May 2014, each alternate weekend from 9.00 am Saturday to 5.00pm Sunday with handover of the children at the commencement and conclusion of the father’s time to occur at the McDonalds Family Restaurant, [suburb omitted];
(e)During the June/July school holiday period…

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 Matera and Matera

Details

AGLC: MATERA & MATERA [2013] FCCA 675
Case: [2013] FCCA 675
Decision Date: 28 June 2013

CaseChat Overview and Summary

In the matter of *Matera and Matera*, heard by Judge Foster, the dispute concerned parenting arrangements for two children, [Y] and [Z]. The orders made by the court addressed issues of parental responsibility, living arrangements, and the time the children would spend with each parent.

The court was required to determine the extent of equal shared parental responsibility, the primary residence of the children, and the specific arrangements for the father's time with the children, including the frequency, duration, and location of handovers. Further issues included provisions for the children's education and health, restrictions on physical discipline and denigration, communication protocols between the parents, and measures to prevent the children's removal from Australia. The court also ordered therapeutic intervention for the family.

The court ordered equal shared parental responsibility for the children, with the children to live with the mother. The father's time with the children was detailed through a phased schedule, commencing with supervised contact and gradually increasing to alternate weekends and significant portions of school holidays. Specific provisions were made for handovers, including the use of a contact centre and later a restaurant, and for the father's ability to arrange care during his time. The orders also included prohibitions on physical discipline and denigration, requirements for separate bedrooms, and detailed communication and information-sharing protocols between the parents regarding the children's welfare, health, and education. The court mandated attendance at therapy for a minimum of 12 months, with specific instructions for the Independent Children's Lawyer and the parties to facilitate this. Finally, stringent measures were put in place to prevent the children's removal from Australia, including notification to law enforcement and immigration authorities.

Orders

Orders of the court

That the mother and father have equal shared parental responsibility for the children [Y] born [in] 2007, [Z] born [in] 2008.

That the said children live with the mother.

That the father spend time with [X] as agreed between the mother and father having regard to the child’s reasonably expressed wishes.

That the children [Y] born [in] 2007, [Z] born [in] 2008 spend time with the father:

(a) For a period of 3 months from the date of the orders between 10.00 am and 4.00 pm each Saturday with handover of the children at the commencement and conclusion of the father’s time to occur at the [omitted] Catholic Care Contact Centre;

(b) Thereafter for a period of 3 months 9.00 am and 5.00 pm each Saturday with handover of the children at the commencement and conclusion of the father’s time to occur at the [omitted] Catholic Care Contact Centre;

(c) Thereafter and until [Y] attains the age of 7 years, each alternate weekend from 9.00 am and 5.00 pm on Saturday and 9.00 am and 5.00 pm on Sunday with handover of the children at the commencement and conclusion of the father’s time to occur at the McDonalds Family Restaurant, [suburb omitted];

(d) Thereafter for a period of 6 months, commencing 10 May 2014, each alternate weekend from 9.00 am Saturday to 5.00pm Sunday with handover of the children at the commencement and conclusion of the father’s time to occur at the McDonalds Family Restaurant, [suburb omitted];

(e) During the June/July school holiday period 2014, the children’s weekend time with the father shall be extended on such weekend until 5.00pm Tuesday, where such extended time falls within the school holiday period;

(f) During the September/October school holiday period 2014 the children’s weekend time with the father shall be extended on such weekend until 5.00pm Wednesday where such extended time falls within the school holiday period;

(g) Commencing 7 November 2014, each alternate weekend from after school Friday until before school Monday, with the father to collect and deliver the children at their school at the commencement and conclusion of his time with them;

(h) During the Christmas school holidays 2014/2015 in addition to the fathers weekend time, the children’s weekend with the father shall be extended on the weekends commencing 2 January 2015 and 16 January 2015, until 5.00pm Thursday;

(i) Thereafter, commencing the school year on 2015, the children [Y] and [Z] spend time with the father as follows:

(i) During school terms, each alternate weekend from after school Friday until before school Tuesday, with the father to collect and deliver the children at their school at the commencement and conclusion of his time with them;

(ii) For one half of the NSW school holiday periods to be the first half in odd numbered years and the second half in even numbered years.

(j) On Fathers Day in 2013 from 10.00am to 4.00pm, in 2014 on the Fathers Day weekend from 9.00am Saturday to 5.00pm Sunday and in 2015 on the Fathers Day weekend from after school Friday to before school Monday if not otherwise periods that the children are to spend time with the father, provided always that the children’s time with the father shall be suspended on the Mothers day weekend in each year;

(k) In the Christmas festive period as follows:

(i) In 2013 from 9.00am to 5.00pm Christmas Eve,

(ii) In 2014 from 2.00pm Christmas Day to 5.00pm Boxing Day,

(iii) In 2015 and each alternate year thereafter from 9.00am Christmas Eve to 10.00am Christmas Day and in 2016 and each alternate year thereafter from 10.00am Christmas Day to 5.00pm Boxing Day.

(l) At such other times as may be agreed between the mother and father in writing with such writing to include SMS or email. In this respect the mother and father shall have reasonable regard to the children’s birthdays, their birthdays and other special occasions;

(m) That for the purposes of the children’s time with the father, he shall be at liberty to make such arrangement for the before and after school or pre school care of the children as he may wish at his expense.

That at the expiration of 12 months from the date of these orders, the father is permitted to attend upon any occasion relevant to the education, health, sporting activities, extra curricular activities, religious education or other occasion significant to the welfare of the children, being occasions where the attendance of either or both parents is to be reasonably expected, provided always that the father is, in the intervening period, able to make arrangements for parent-teacher interviews in relation to the progress of either child provided such interviews are in the absence of the mother and the children and attend upon any health professional or practitioner treating the children in the absence of the mother and the children.

That any handover of the children that is not otherwise specified in these orders shall occur at McDonalds Family Restaurant, [suburb omitted].

That each party is restrained form physically disciplining the children.

That on any occasion when the children are spending overnight time with the father the father shall ensure that the children have their own bedroom.

That the mother use her best endeavors to ensure that the children sleep separately from her and if practicable in their own bedroom.

10.

That each party is restrained from denigrating the other party in the presence or within hearing of the children or allowing any other person to do so.

11.

That each party is restrained from discussing with the children any allegation raised in these proceedings.

12.

That the father is authorised to receive reports, newsletters and other information disseminated by the children’s school or preschool and to obtain such information as he may reasonably request of the children’s medical practitioners or other health professionals from time to time and for the purposes of this order, the mother shall provide to the father, within 7 days of this order, details of the children’s treating general practitioner or other health professional who has attended upon the children in the 6 month period before the date of these orders and shall promptly inform the father in writing as to any future change in such details.

13.

That the mother inform the father of the engagement of either of the children with any medical practitioner or health professional as and from the date of these orders including contact details of any such practitioner provided always that the mother be restrained from engaging the children or either of them in any counseling, family therapy, “recovery from family violence” therapy or psychological therapy without the written consent of the therapist referred to in Order 17.

14.

That the father be restrained from attending upon the mother’s home unless in accordance with these orders or otherwise agreed in writing by the mother and that the mother be restrained from attending upon the father’s home unless in accordance with these orders or otherwise agreed in writing by the father except in circumstances of emergency relating to the children.

15.

That the mother and father provide to each other their current mobile, landline telephone numbers and email address within 24 hours of the making of these orders and they each be restrained from contacting each other except in relation to the implementation of these orders and the welfare of the children with any such communication unless in an emergency to be by SMS or email.

16.

That the mother and father promptly advise the other of any medical emergency or hospitalisation of the children or either of them.

17.

That the parties shall do all things necessary to promptly facilitate their attendance upon a therapist, skilled in providing parenting advice and family and individual child therapy and specialising in high conflict families, to be recommended by the Single Expert Dr K and shall comply with all recommendations by that therapist including ensuring each child attends appointments with that therapist as scheduled by the therapist, attending themselves and that the Independent Children’s Lawyer provide a copy of Dr K’s single expert report and these orders to the therapist and that such therapy continue for a minimum of 12 months or such longer period as is recommended by the therapist.

18.

That the mother has leave to provide a copy of the report of single expert of Dr K to her individual therapist and is to provide to the Independent Children’s Lawyer details of any such therapist promptly upon her engagement with such therapist.

19.

That each party is restrained from removing or attempting to remove the children [Y] born [in] 2007, [Z] born [in] 2008, from the Commonwealth of Australia without the written consent of the other or court order and that:

(a) The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said children from the Commonwealth of Australia.

(b) Until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said children's names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.

(c) The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.

(d) The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.

20.

That either party have liberty to apply as to overseas travel for the children by application in a case supported by affidavit in the event that it is asserted that consent to such travel is being unreasonably withheld.

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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