FAMILY COURT OF AUSTRALIA
| SANTORO & SANTORO | [2009] FamCA 812 |
| FAMILY LAW – CHILDREN – Competing interim applications in respect of the time the children spend with the parties – best interests of the children |
| Family Law Act 1975 (Cth) |
| Federal Proceedings (Costs) Act 1981 (Cth) |
| APPLICANT: | Ms Santoro |
| RESPONDENT: | Mr Santoro |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Ross Clarke |
| FILE NUMBER: | SYC | 1574 | of | 2008 |
| DATE DELIVERED: | 2 September 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 24 August 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonnel |
| SOLICITOR FOR THE APPLICANT: | Karras Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Richardson, SC |
| SOLICITOR FOR THE RESPONDENT: | York Family Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Gardiner |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ross A. Clarke & Associates |
Orders
PENDING FURTHER ORDERS BY CONSENT
The parties attend upon Ms B, clinical psychologist, Sydney so that she might attempt to assist the parties in developing strategies to deal with each other in a non-adversarial and cooperative way.
Each party will pay one half of Ms B’s fees.
X born … April 1999 and Y born … April 2001 (“the children”) spend time with their father on each Father’s Day from 9am to 5pm.
The mother and father both be restrained by injunction from initiating any discussions about the father or his family or the mother and her family respectively in the presence of or hearing of the children or any of them.
The mother and father be restrained by injunction from denigrating or disparaging the father or his family or the mother and her family respectively in the presence of or hearing of the children and that the mother and the father be restrained from allowing any third party to denigrate or disparage the father and his family members or the mother and her family members respectively in the presence of or hearing of the children.
Each of the parties keep the other informed as to:-
6.1.The children’s education and any homework that the children are required to undertake;
6.2.Any co-curricular activities that the children undertake from time to time which co-curricular activities are to be agreed upon in writing by the parties;
6.3.The children’s health and any special treatment that they require;
6.4.Any medication that the children might be prescribed from time to time.
The wife be restrained by injunction from:
7.1.Causing the children to be known by any surname other than “Santoro”;
7.2.Incorporation of the mother’s maiden name “Machione” with the children’s name or middle name or surname.
In the event that the birthday of the mother or the father falls on a weekend then the children spend from 10am to 7pm with the parent who is having that birthday.
The children spend time with their father during the period Christmas Eve to Boxing Day as follows:-
9.1.In odd numbered years from 12 noon Christmas Eve to 2pm Christmas Day;
9.2.In even numbered years from 2pm Christmas Day to 6pm Boxing Day;
The children spend time with…
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- AGLC
- Santoro and Santoro [2009] FamCA 812
- Case
- [2009] FamCA 812
- Decision Date
CaseChat Overview and Summary
The court was required to determine a range of issues concerning the children's living arrangements, time spent with each parent, communication protocols between the parents, and specific matters relating to the children's education, health, and personal identification. The court also had to address the parents' capacity to engage in non-adversarial strategies for co-parenting.
Watts J made orders by consent, reflecting an agreement between the parties to facilitate a more cooperative approach to parenting. These orders included provisions for the parents to attend sessions with a clinical psychologist to develop non-adversarial strategies. The court also established detailed arrangements for the children's time with their father, including specific periods during holidays and weekends, and outlined communication requirements regarding the children's education, health, and activities. Crucially, the court imposed injunctions restraining both parents from denigrating each other or their families in the presence of the children and from using surnames other than "Santoro" for the children. Further orders addressed specific health appointments for one of the children and the division of property.
Orders
Orders of the court
PENDING FURTHER ORDERS BY CONSENT
1.
The parties attend upon Ms B, clinical psychologist, Sydney so that she might attempt to assist the parties in developing strategies to deal with each other in a non-adversarial and cooperative way.
2.
Each party will pay one half of Ms B’s fees.
3.
X born … April 1999 and Y born … April 2001 (“the children”) spend time with their father on each Father’s Day from 9am to 5pm.
4.
The mother and father both be restrained by injunction from initiating any discussions about the father or his family or the mother and her family respectively in the presence of or hearing of the children or any of them.
5.
The mother and father be restrained by injunction from denigrating or disparaging the father or his family or the mother and her family respectively in the presence of or hearing of the children and that the mother and the father be restrained from allowing any third party to denigrate or disparage the father and his family members or the mother and her family members respectively in the presence of or hearing of the children.
6.
Each of the parties keep the other informed as to:-
6.1. The children’s education and any homework that the children are required to undertake;
6.2. Any co-curricular activities that the children undertake from time to time which co-curricular activities are to be agreed upon in writing by the parties;
6.3. The children’s health and any special treatment that they require;
6.4. Any medication that the children might be prescribed from time to time.
7.
The wife be restrained by injunction from:
7.1. Causing the children to be known by any surname other than “Santoro”;
7.2. Incorporation of the mother’s maiden name “Machione” with the children’s name or middle name or surname.
8.
In the event that the birthday of the mother or the father falls on a weekend then the children spend from 10am to 7pm with the parent who is having that birthday.
9.
The children spend time with their father during the period Christmas Eve to Boxing Day as follows:-
9.1. In odd numbered years from 12 noon Christmas Eve to 2pm Christmas Day;
9.2. In even numbered years from 2pm Christmas Day to 6pm Boxing Day;
10.
The children spend time with their father during the period Good Friday to Easter Monday as follows:
10.1. In odd numbered years from 2pm Good Friday until 2pm Easter Saturday;
10.2. In even numbered years from 2pm Easter Saturday to 6pm Easter Monday.
11.
The children spend time with their father from 12 noon New Years Eve to 2pm New Years Day in odd numbered years.
12.
Unless specifically provided, changeover shall be as follows:
12.1. The mother to deliver the children to the father at the conclusion of the children’s time with the mother;
12.2. The father to deliver the children to the mother at the conclusion of the children’s time with the father.
13.
On 25 September 2009 the mother pick up X from school; the father pick up Y from school; the parties are to meet with the children at V, a coffee shop known to both the parties at 5pm; X will then remain with his father until the commencement of school on Monday 28 September 2009 and Y will remain with her mother until the commencement of school on Monday 28 September 2009.
14.
In the event that either party seeks an order under s 10 of the Federal Proceedings Costs Act, submissions in support of that application are to be filed and served by 30 September 2009.
PENDING FURTHER ORDER
15.
Current orders whereby the children spend time with their parents are discharged.
16.
The children live with their mother.
17.
The children spend time with their father during school term in a four week cycle as follows:-
17.1. In the first three weeks of the four week cycle from Friday afternoon when the father collects them from Italian school until just before the commencement of school on Monday;
17.2. In the fourth week of a four week cycle from after school Tuesday until just before the commencement of school on Friday.
18.
The children spend time with their father during one half of the 2009 third term school holidays and failing agreement to be the first half (from after school at the end of third school term until 12 noon on the following Saturday) and for the purpose of counting school term weekends, the weekend immediately after third school term and the weekend immediately before the fourth term commences will not be weekends which are counted as school term weekends.
19.
The Independent Children's Lawyer shall ask A/Prof Q to provide a recommendation in her updated report as to what time the children should spend with their parents during the forthcoming December 2009/January 2010 school holidays and if her updated report is not available by the end of October, for her to provide a short supplementary report responding to that question.
20.
The parties have liberty to relist the mater on 7 days notice before me in relation to the issue of Christmas school holidays.
21.
The father facilitate the children receiving telephone calls from their mother between the hours of 7pm and 7.30pm each day they are with their father.
22.
The father forthwith provide to the mother in writing a telephone number upon which the mother can ring the children pursuant to the preceding order.
23.
The mother be restrained from attending either of the children’s schools at any time when the father is due to deliver the children to school or pick the children up from school or, at the children’s Italian school on a Friday afternoon when the father is collecting the children from Italian school.
24.
The mother and father ensure that Y attend an eye test with Mr F and speech pathology with Ms SV (for as many attendances as recommended by each of those persons) and that for the purpose of arranging the said appointments:
24.1. The father is to contact Mr F and Ms SV to obtain three alternate appointment times with those persons and thereafter notify the mother by email of alternate appointment times.
24.2. The mother is to respond to the father by email within two working days nominating the appointment times to be attended by Y.
25.
Each parent be at liberty to attend the eye tests and speech pathology appointments.
26.
Neither parent make any appointment for Y for eye sight tests and/or speech therapy without the written consent of the other parent.
27.
Leave be granted to the solicitors for the father to indicate to Ms BA, psychologist, that a report by A/Prof Q dated 12 December 2008 dealing with matters relating to Y and her family has been prepared and inviting her to request a copy of this report should she believe that was appropriate. In the event that a request is received by the solicitors for the father from Ms BA for a copy of A/Prof Q’s report, then leave is granted to the solicitors for the father to provide Ms BA with a copy of A/Prof Q’s report.
28.
Within 14 days from the date of these orders, the mother provide to the father’s solicitor a schedule identifying all items removed by her from the former matrimonial home at C.
29.
Within 7 days from the date of these orders, the mother will make a time with the father for her to attend at the C property within a period of 14 days from the date of these orders in the company of one adult person nominated by the mother for the purpose of compiling a list identifying those items situated at the C property which the mother will request be retained by her in the finalisation of the matter and the father shall be at liberty to be present with one other adult person during the period of time that the mother is at the property for the purposes of compiling that list.
30.
In the event the mother wishes to press applications 7, 8, 9 or 10 in the Response filed 21 May 2009, then within 7 days the mother will apply to relist the matter for a further mention.
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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