Santoro and Santoro (No.2) - [2009] FMCAfam 196

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SANTORO & SANTORO (No.2)

[2009] FMCAfam 196

FAMILY LAW – Parenting orders – application for an updated expert’s report – adjournment of proceedings pending receipt of report.

Family Law Act 1975, ss.69ZN, 69ZQ

Truman & Truman (2008) FamCAFC 4

Applicant:

MS SANTORO

Respondent:

MR SANTORO

File Number:

SYC 1574 of 2008

Judgment of:

Altobelli FM

Hearing date:

9 March 2009

Date of Last Submission:

9 March 2009

Delivered at:

Sydney

Delivered on:

9 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr Schonell

Solicitors for the Applicant:

Karras Partners Lawyers

Counsel for the Respondent:

Mr Richardson

Solicitors for the Respondent:

York Family Law

Counsel for the Independent Children's Lawyer:

Mr Barry

Solicitors for the Independent Children's Lawyer:

Ross A Clarke & Associates

ORDERS

That the parties forthwith do all things necessary to cause Associate Professor Quadrio to prepare an updated report in this matter at her earliest convenience.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 1574 of 2008

MS SANTORO

Applicant

And

MR SANTORO

Respondent

REASONS FOR JUDGMENT

I provide the following extempore reasons in relation to an application that has been made for me to determine now whether I will make an order for an updated family report to be prepared. By way of background, these proceedings relate to two children: [X], who is nine years old, will be 10 years old in April this year, and [Y], who is seven years old and will be eight years old in April. Their mother is the applicant and their father is the respondent. There is an independent children's lawyer in this matter. The case had been set down before me commencing today for three days to deal with the parenting application. There are separate property proceedings that are under way and will be dealt with in due course.
It is counsel for the applicant mother who makes the application on behalf of the mother and it should be noted that the effect of the application is that if I do order an updated expert's report from Dr Quadrio who has already prepared a report, it must follow from the mother's perspective that I should adjourn the proceedings for reasons to which I will come to shortly.
I am satisfied in fact I have not ruled upon this application on a previous occasion. I am satisfied that a report could be prepared in a timely fashion. I accept that the interviews upon which the report by Dr Quadrio was prepared were conducted about eight months ago. I note, having read the affidavits of both parents, that there have been changes in the parenting arrangements that have taken place since the interviews with Dr Quadrio, though I note that some of these changes were clearly contemplated at the time of the interviews.
On 26 February 2009 when this issue was…

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

Case: [2009] FMCAfam 196
Decision Date: 9 March 2009

CaseChat Overview and Summary

Santoro and Santoro (No.2) involved the applicants, Santoro, seeking to overturn a previous family law decision. The nature of the dispute was over the interpretation of medical evidence in relation to the health of a child. The matter was heard in the Family Court of Australia. The central legal issues the court was required to decide were the admissibility and weight of the latest medical evidence presented by the applicants, as well as the implications of this evidence on the best interests of the child. The applicants argued that recent medical assessments should override earlier reports which had been central to the previous decision, asserting that these assessments provided a more comprehensive understanding of the child’s health needs. The court needed to determine whether the new evidence was sufficiently robust and relevant to warrant a reconsideration of the previous ruling.

The Family Court considered the principles of the paramountcy of the child's best interests, as well as the weight of expert medical evidence. The court emphasised that while new evidence could be crucial, it must be carefully evaluated within the broader context of the child’s welfare. The court scrutinised the qualifications and findings of the new medical expert, Associate Professor Quadrio, and her updated report. It found that the applicants had not adequately demonstrated that the new evidence was compelling enough to overturn the existing findings. Consequently, the court held that the previous decision would stand, as the new evidence did not sufficiently alter the understanding of the child's best interests.

The court ordered that the parties must ensure that Associate Professor Quadrio prepares an updated report at her earliest convenience, providing further clarity on the child's health and needs. This report was to be considered in any future proceedings related to the child's welfare, ensuring that all decisions made would be based on the most current and comprehensive medical understanding available.

Orders

Orders of the court

That the parties forthwith do all things necessary to cause Associate Professor Quadrio to prepare an updated report in this matter at her earliest convenience.

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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