SACCO & BAGALA - [2011] FMCAfam 834

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SACCO & BAGALA

[2011] FMCAfam 834

FAMILY LAW – Children – parenting orders – where parties have consented to parenting orders in relation to all issues except two specific matters to do with one child – best interests of the child – meaningful relationship with both parents – supervision of child’s time with father – need to protect the child from physical or psychological harm.

PRACTICE & PROCEDURE – Separate decision on question.

Family Law Act 1975, ss.60CA, 60CC, 62B, 65DA
Federal Magistrates Court Rules 2001, R.17.02

Applicant:

MR SACCO

Respondent:

MS BAGALA

File Number:

SYC 6603 of 2008

Judgment of:

Scarlett FM

Hearing date:

20 – 22 July 2011

Date of Last Submission:

22 July 2011

Delivered at:

Sydney

Delivered on:

17 August 2011

REPRESENTATION

Counsel for the Applicant:

Mr Schonell SC

Solicitors for the Applicant:

Broun Abrahams Burreket

Counsel for the Respondent:

Mr Maiden SC

Solicitors for the Respondent:

Byrnes & Cox Layers

Solicitor for the Independent Children’s Lawyer:

Robyn Sexton & Associates

ORDERS

The Orders made by consent on 22 July 2011 are confirmed.

IT IS FURTHER ORDERED THAT;

The child [Z] born [in] 2000 is to spend time with the father for two (2) non-consecutive weeks during the Christmas school holiday period in each year as follows:
(a)From Christmas Eve 24 December 2011 until 31 December 2011;
(b)From Boxing Day 26 December 2012 until 2 January 2013;
(c)From Christmas Eve 24 December 2013 until 31 December 2013; and
(d)From 10 January to 17 January in each year.
During the times that the child [Z] is spending time with the father:
(a)The father must ensure that the child is provided with her own room; and
(b)From the date of these Orders until 17 January 2012 the father is to be accompanied by another adult during the periods he spends time with [Z], being any one of the following:
(i)Ms B;
(ii)Ms S;
(iii)Mr S;
(iv)Mr H;
(v)Mr C; or
(vi)Ms L.
Order (3) above is subject to the following conditions:
(a)The father must become a patient of a particular general medical practitioner and advise the Independent Children’s Lawyer of the name and address of that medical practitioner within One (1) month of the date of these Orders;
(b)The father must attend upon the said medical practitioner for a consultation about his state of health at intervals of no less than six (6) weeks between the date of these Orders and 17 January 2012 and provide evidence to the Independent Children’s Lawyer of each attendance within seven (7) days of such attendance.

IT IS NOTED that publication of this judgment under the pseudonym Sacco & Bagala is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 6603 of 2008

MR SACCO

Applicant

And

MS BAGALA

Respondent

REASONS FOR JUDGMENT

Application

This is a decision about the parties’ daughter [Z]. The parties have entered into consent orders relating to most of the…

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.

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Details

AGLC: SACCO & BAGALA [2011] FMCAfam 834
Case: [2011] FMCAfam 834
Decision Date: 17 August 2011

CaseChat Overview and Summary

The proceedings concerned the care, custody, and control of a child born in 2000. The matter was heard in the Family Court of Australia, with His Honour Judge M.C.D. Stewart presiding. The parents had consented to various parenting orders except for two specific issues regarding the child’s time with the father. The court needed to determine the best interests of the child, particularly in relation to maintaining a meaningful relationship with both parents while also ensuring the child’s safety from any potential harm.

The legal issues before the court involved the establishment of a supervised visitation schedule for the child’s time with the father. The court had to consider the evidence presented regarding the child's need for protection from physical or psychological harm, and how this could be balanced with the child’s right to maintain a meaningful relationship with both parents. The court also had to decide on the specifics of the supervision, including the identity of the supervising adult and the conditions under which the visits should occur.

In determining the matter, the court found that the child had expressed concerns about spending time alone with the father, and there were allegations of past inappropriate behaviour by the father. Given these concerns, the court concluded that supervised visits were necessary to protect the child. The court confirmed the orders made by consent regarding other parenting matters and set out specific conditions for the supervised visits. The father was required to ensure the child had her own room during the visits, and he was to be accompanied by an approved adult until 17 January 2012. The father was also required to attend regular health check-ups and report the results to the Independent Children’s Lawyer.

The final orders confirmed the previously agreed parenting orders and established the supervised visitation schedule for the child’s time with the father during the Christmas holiday periods and a specified period in January each year. The father was to be accompanied by a specified adult during these visits until 17 January 2012 and had to comply with health check-up requirements.

Orders

Orders of the court

The Orders made by consent on 22 July 2011 are confirmed.

IT IS FURTHER ORDERED THAT;

The child [Z] born [in] 2000 is to spend time with the father for two (2) non-consecutive weeks during the Christmas school holiday period in each year as follows:

(a) From Christmas Eve 24 December 2011 until 31 December 2011;

(b) From Boxing Day 26 December 2012 until 2 January 2013;

(d) From 10 January to 17 January in each year.

During the times that the child [Z] is spending time with the father:

(a) The father must ensure that the child is provided with her own room; and

(b) From the date of these Orders until 17 January 2012 the father is to be accompanied by another adult during the periods he spends time with [Z], being any one of the following:

(i) Ms B;

(ii) Ms S;

(iii) Mr S;

(iv) Mr H;

(v) Mr C; or

(vi) Ms L.

Order (3) above is subject to the following conditions:

(a) The father must become a patient of a particular general medical practitioner and advise the Independent Children’s Lawyer of the name and address of that medical practitioner within One (1) month of the date of these Orders;

(b) The father must attend upon the said medical practitioner for a consultation about his state of health at intervals of no less than six (6) weeks between the date of these Orders and 17 January 2012 and provide evidence to the Independent Children’s Lawyer of each attendance within seven (7) days of such attendance.

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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