Salvati and Donato (No.2) - [2009] FMCAfam 883

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SALVATI & DONATO (No.2)

[2009] FMCAfam 883

FAMILY LAW – Parenting – unacceptable risk of harm or abuse – whether father has sexually abused child – whether maternal grandmother and mother pose risk to child with persistent belief child has been abused in absence of objective evidence – whether child’s residence should be changed – issue of supervised contact with maternal grandmother.

Family Law Act 1975, ss.60CA, 60CC, 61DA
Evidence Act1995 (Cth), s.140

Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2
W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129

Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4.
Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415.
McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3.

Applicant:

MS SALVATI

Respondent:

MR DONATO

File Number:

SYM 7919 of 2006

Judgment of:

Altobelli FM

Hearing date:

6 July 2009

Date of Last Submission:

7 July 2009

Delivered at:

Sydney

Delivered on:

20 August 2009

REPRESENTATION

Counsel for the Applicant:

Mr Cook

Solicitors for the Applicant:

Verekers Lawyers

Counsel for the Respondent:

Ms Friedlander

Solicitors for the Respondent:

Kells the Lawyers

Solicitor-Advocate for the Independent Children’s Lawyer

Mr Meehan

Solicitors for the Independent Children’s Lawyer:

JPM Legal

ORDERS

The Father have sole parental responsibility for the Child [X] born in 2005 subject to the following:
(a)The Father should consult the mother about major long term decisions relating to [X]; but
(b)If the Father and Mother are not able to reach agreement about the same, within a reasonable time frame (having regard to the nature of the decision to be made), the father’s decision will be final.
The Child live with the Father.
The Mother, for a period of 12 months attend at her own cost on a consultant psychiatrist, Dr John Kasinathan (or if he is unwilling or unable to assist, on a consultant psychiatrist nominated by the Independent Children’s Lawyer), at least every three months for assessment and monitoring in relation to an emerging psychotic disorder (if any).
The report of the said psychiatrist is to be provided to the Independent Children’s Lawyer as soon as practicable after it has been prepared. The Independent Children’s Lawyer is then at liberty to:
(a)Make a copy available to the father; and
(b)Relist the matter before Federal Magistrate Altobelli on seven (7) days’ notice if any matter arises in relation to the welfare of [X] out of the said report or reports.
Commencing from Wednesday 26 August 2009, and until [X] commences school, the Mother spend time with [X] from after preschool, or from 4.00pm should [X] not be attending preschool, each Wednesday to 10.00am on Saturday each…

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 Salvati and Donato (No.2)

Details

AGLC: Salvati and Donato (No.2) [2009] FMCAfam 883
Case: [2009] FMCAfam 883
Decision Date: 20 August 2009

CaseChat Overview and Summary

In the Federal Circuit Court, the case of Salvati and Donato (No. 2) involved a dispute between the parents of a child born in 2005 over parental responsibility and contact arrangements. The father sought sole parental responsibility while the mother contested this and proposed various contact arrangements. The court was tasked with determining the appropriate allocation of parental responsibility and devising a contact schedule that prioritised the child's welfare.

The primary legal issues before the court included the allocation of parental responsibility between the father and the mother and the formulation of a contact schedule that balanced the child's need for stability and the parents' respective roles in their upbringing. The court also had to consider the mother's concerns about her mental health and the potential impact on her capacity to care for the child. The judge needed to weigh these factors against the father's desire for sole responsibility and the child's need for meaningful contact with both parents.

The court granted sole parental responsibility to the father, subject to certain conditions that required him to consult with the mother on major long-term decisions. If agreement could not be reached within a reasonable time, the father's decision would be final. The court ordered the child to live with the father and set out detailed contact arrangements for the mother, including supervised visits with the maternal grandmother. These orders were designed to ensure the child's safety and well-being while allowing for a meaningful relationship with the mother. Both parents were restrained from speaking negatively about each other in the child's presence and from discussing the proceedings with the child.

The court's final orders included provisions for the father to have sole parental responsibility with specific consultation requirements with the mother, detailed contact arrangements for the mother, supervised visits for the maternal grandmother, and restrictions on negative communication between the parents in the child's presence. The orders also allowed for the relisting of the matter to address any issues arising from their interpretation or implementation.

Orders

Orders of the court

The Father have sole parental responsibility for the Child [X] born in 2005 subject to the following:

(a) The Father should consult the mother about major long term decisions relating to [X]; but

(b) If the Father and Mother are not able to reach agreement about the same, within a reasonable time frame (having regard to the nature of the decision to be made), the father’s decision will be final.

The Child live with the Father.

The Mother, for a period of 12 months attend at her own cost on a consultant psychiatrist, Dr John Kasinathan (or if he is unwilling or unable to assist, on a consultant psychiatrist nominated by the Independent Children’s Lawyer), at least every three months for assessment and monitoring in relation to an emerging psychotic disorder (if any).

The report of the said psychiatrist is to be provided to the Independent Children’s Lawyer as soon as practicable after it has been prepared. The Independent Children’s Lawyer is then at liberty to:

(a) Make a copy available to the father; and

(b) Relist the matter before Federal Magistrate Altobelli on seven (7) days’ notice if any matter arises in relation to the welfare of [X] out of the said report or reports.

Commencing from Wednesday 26 August 2009, and until [X] commences school, the Mother spend time with [X] from after preschool, or from 4.00pm should [X] not be attending preschool, each Wednesday to 10.00am on Saturday each week.

The Father is not to enrol [X] in preschool on more than one day that she spends with the Mother each week.

Upon [X] commencing school, the Mother spend time with [X] from after school on Wednesday to before school Tuesday each alternate week.

The Mother is also to spend time with [X]:

(a) On Mother’s Day between 10.00am and 4.00pm if it is not already a contact weekend; and

(b) On the Mother’s birthday between 4.00pm and 6.00pm if it is a school day, and 2.00pm and 8.00pm if it is on a weekend, if the Mother’s birthday is not already on a contact day; and

(c) During odd numbered years, on Christmas Eve from 12 noon to Christmas Day at 12 noon, and during even numbered years on Christmas Day from 12 noon to Boxing Day at 12 noon.

(d) For one-half of each school holiday period and if the parents are unable to agree as to which half, during the second half of each school holiday period.

(e) The Mother’s time with [X] is suspended during the Father’s half of all school holiday periods, and on the Father’s birthday between 4.00pm and 6.00pm if it is a school day, and 2.00pm and 8.00pm if it is on a weekend when [X] would be with the Mother, and on Father’s day between 10.00am and 4.00pm if it is on a weekend when [X] would be with the Mother.

Where changeover pursuant to these orders does not take place at [X]’s school or preschool, then the Mother is to collect [X] from the father’s residence at the commencement of contact, and the Father to collect [X] from the Mother’s residence at the conclusion of contact.

10.

The Maternal Grandmother Ms S is to spend time with [X] for two hours per fortnight at a supervised contact centre or in another supervised setting as agreed between the parents, such time to continue until:

(a)

The maternal grandmother has caused a report from

Dr Kasinathan (or if he is unwilling or unable to assist, a consultant psychiatrist nominated by the Independent Children’s Lawyer) at her own cost to be written indicating the maternal grandmother is not suffering from a psychiatric disorder, or she is being treated appropriately and [X] is not at risk of emotional or psychological harm if [X] spends time with the maternal grandmother unsupervised.

(b) The report in 10(a) above is to be provided to the mother, the father and Independent Children’s Lawyer before any proposed change to the time the maternal grandmother spends with [X].

(c) Any time the maternal grandmother is to spend with [X] following the report is only to be as agreed between the parties, or by Order of the Court.

11.

The Mother is to ensure the maternal grandmother Ms S is not present when the Mother spends time with [X] except as per Order 10 above.

12.

Both parties are hereby restrained from:

(a) Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s hearing.

(b) Discussing the proceedings or the relationship between the parents or any other party the presence or hearing of the children or permitting any other person to do so.

13.

Parties have leave to relist this matter before me as regards the interpretation and implementation of 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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