SARACUNA & SIDDELE - [2020] FCCA 174

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARACUNA & SIDDELE

[2020] FCCA 174

Catchwords:
FAMILY LAW – Final hearing – parenting – whether the child should live primarily with the mother or the father – whether the child should be vaccinated - whether the child should go to school or be home-schooled – whether the child is at risk of harm in either parent’s care – whether each parent has the capacity to promote, foster and develop the child’s relationship with the other parent and the child’s extended family – whether each party has the capacity to meet the child’s health, emotional, social and developmental needs.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CC, 61DA, 65D

Cases cited:

Goode & Goode [2006] FamCA 1346
Sigley & Evor [2011] FamCAFC 22

Applicant:

MR SARACUNA

Respondent:

MS SIDDELE

File Number:

SYC 7132 of 2018

Judgment of:

Judge M Neville

Hearing dates:

13-16 January 2020

Date of Last Submission:

16 January 2020

Delivered at:

Sydney

Delivered on:

31 January 2020

REPRESENTATION

Counsel for the Applicant:

Mr Livingstone

Solicitors for the Applicant:

Go to Court Lawyers

Counsel for the Respondent:

Ms Otrebski

Solicitors for the Respondent:

Braye Cragg Solicitors

Counsel for the Independent Children's Lawyer:

Mr Greenaway

Solicitors for the Independent Children's Lawyer:

Mark MacDiarmid Family Law Specialist

THE COURT ORDERS, ON A FINAL BASIS, THAT:

Discharge of prior Orders

All prior parenting Orders are discharged.
Parental responsibility
Subject to the sub-paragraphs (a) to (c) of this Order and to Orders 3 to 10 below, the mother shall have sole parental responsibility for the child X born in 2014 ('the child'), and:
(a)the mother shall keep the father informed of the child's progress including but not limited to matters of the children's well-being, health, education or extra-curricular activities;
(b)the father shall be entitled to communicate with the mother any concerns that he has or any suggestions he wishes to make for the progress and well being of the child; and
(c)the mother shall give due regard to such matters as are raised by the father but, in the event that no agreement is reached, then the mother shall be the person to make the final determination or decision.
(d)The mother shall authorise the father to communicate with, attend upon all medical practitioners and be provided with all reports and information in relation to the child from any medical practitioner and for the purposes of such authorisation this order shall be sufficient authority.
The parents shall each have responsibility for making decisions in respect of the child that are not major long-term issues whilst the child is in their care, including but not limited to, the child's attendance at extra-curricular activities and social functions.
Vaccination of the child
The father shall as soon as practicable have the child vaccinated by Dr C, pediatrician ('Dr C'), or by such practitioner as recommended by him and shall thereafter follow Dr C's recommendations for ongoing vaccination from time to time and update the mother of all such vaccination treatment…

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 SARACUNA & SIDDELE

Details

AGLC: SARACUNA & SIDDELE [2020] FCCA 174
Case: [2020] FCCA 174
Decision Date: 31 January 2020

CaseChat Overview and Summary

The Family Court of Australia, presided over by M Neville J, considered a dispute between SARACUNA and SIDDELE concerning final parenting orders for their child. The core of the disagreement revolved around the child's primary residence, vaccination status, educational arrangements (schooling versus home-schooling), and the assessment of risk of harm in each parent's care. The court was also tasked with evaluating each parent's capacity to foster the child's relationship with the other parent and extended family, as well as their ability to meet the child's health, emotional, social, and developmental needs.

The central legal issues before the court were whether the child should live primarily with the mother or the father, whether the child should be vaccinated, and whether the child should attend school or be home-schooled. Furthermore, the court had to determine if the child was at risk of harm in either parent's care and assess each parent's capacity to promote the child's relationships with the other parent and extended family, and to meet the child's comprehensive developmental needs.

M Neville J applied the paramountcy principle, focusing on the best interests of the child as the overriding consideration in determining parenting arrangements. The court considered evidence relating to each parent's capacity to meet the child's physical, emotional, and developmental needs, as well as their ability to facilitate a meaningful relationship between the child and the other parent and extended family. The assessment of risk of harm was a critical factor, as was the court's consideration of the child's vaccination status and educational pathway in light of their best interests.

Orders