Sarto and Sarto - [2018] FCCA 1040

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARTO & SARTO

[2018] FCCA 1040

Catchwords:
FAMILY LAW – Parenting – parental responsibility – intractable disputes between parents – family violence allegations.

Legislation:

Family Law Act 1975, ss.11F, 60B, 60CA, 60CC, 61DA, 65DAA,65DAC

& 65DAE.

Cases cited:

McCall & Clark (2009) 41 Fam LR 483
Mazorski & Albright (2007) 37 Fam LR 518
Moose v Moose (2008) FLC 93-375
Champness v Hanson (2009) FLC 93-407
Gorman v Huffman 2016 FAMCAFC 174
Bronson & May (No.2) [2017] FCCA 2317
Moose & Moose [2007] FamCA 714
Slater & Light [2013] FamCAFC 4
Marsden & Winch [2012] FamCA 557

Applicant:

MS SARTO

Respondent:

MR SARTO

File Number:

ADC 4542 of 2015

Judgment of:

Judge Cole

Hearing dates:

9, 10 and 11 August 2017,

27 November 2017and 22 January 2018

Date of Last Submission:

22 January 2018

Delivered at:

Adelaide

Delivered on:

27 April 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Mr Clarke of Clarke Hemmerling Lawyers

Counsel for the Independent Children's Lawyer:

Mr D Childs

Solicitors for the Independent Children's Lawyer:

Legal Services Commission of South Australia

ORDERS

That the children [X] born on 2012 and [Y] born on 2013 live with the mother.
That the mother have sole parental responsibility for the said children with respect to the said children’s education including the choice of the said children’s school.
That the said children spend time with the father as follows:
(a)for a period of four (4) months each Saturday from 11:00am until 3:00pm, commencing Saturday 12 May 2018;
(b)thereafter for a period of four (4) months each weekend namely on each alternate Saturday from 10:00am until 5:00pm and each intervening Sunday from 10:00am until 5:00pm;
(c)subject to paragraph 15 of this Order thereafter for a period of three (3) months each alternate weekend from 10:00am Saturday until 12:00noon Sunday;
(d)thereafter for a period of two (2) months each alternate weekend from 10:00am Saturday until 5:00pm Sunday;
(e)thereafter for a period of two (2) months each alternate weekend from 5:00pm Friday until 5:00pm Sunday;
(f)thereafter for a period of two (2) months each alternate weekend from 5:00pm Friday until 5:00pm Sunday and every other Thursday from the conclusion of school until 7:00pm;
(g)thereafter for a period of two (2) months each alternate weekend from the conclusion of school Friday until the commencement of school Monday, and every other Thursday from the conclusion of school until 7:00pm;
(h)in the first school term holidays following the commencement of alternate weekend time from Friday to Sunday pursuant to paragraph (3)(e) hereof:
(i)the first week of the school term holidays from the conclusion of school until 5:00pm on the middle Saturday of the school term holidays;
(ii)for the Christmas school holidays, pending the said children reaching the age of eight (8) years, on a week-about basis with the father to have the first week of the holidays and each alternate week thereafter save and except as set out in this Order;
(i)in 2018 and each alternate…

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 Sarto and Sarto

Details

AGLC: Sarto and Sarto [2018] FCCA 1040
Case: [2018] FCCA 1040
Decision Date: 27 April 2018

CaseChat Overview and Summary

This matter concerned orders made by Judge Cole in proceedings between the parties, Sarto and Sarto, regarding their two children, [X] and [Y]. The dispute centred on the living arrangements for the children, parental responsibility, and the nature and extent of the father's time with them.

The court was required to determine the primary residence of the children, the allocation of parental responsibility, particularly concerning their education, and to establish a detailed schedule for the father's time with the children, including provisions for holidays and special days. Further issues before the court included the method and location of child handovers, communication protocols between the parents, and the father's participation in anger management and parenting programs as a prerequisite for overnight time with the children. The court also considered injunctions to restrain certain behaviours between the parties and the discharge of an Independent Children's Lawyer.

Judge Cole ordered that the children live with the mother and that she have sole parental responsibility for their education, including school choice. A phased schedule for the father's time with the children was established, commencing with supervised contact and gradually increasing to alternate weekends and then to alternate weekends with mid-week contact, subject to certain conditions. These conditions included the father completing a post-separation parenting program and addressing anger management issues, with evidence of completion to be provided to the mother before overnight time could commence. The court also made orders regarding handover locations, communication methods, and specific injunctions restraining each party from various behaviours, including discussing the proceedings with the children or denigrating the other parent. The Independent Children's Lawyer was discharged, and the proceedings concerning children's issues were otherwise dismissed.

Orders

Orders of the court

That the children [X] born on 2012 and [Y] born on 2013 live with the mother.

That the mother have sole parental responsibility for the said children with respect to the said children’s education including the choice of the said children’s school.

That the said children spend time with the father as follows:

(a) for a period of four (4) months each Saturday from 11:00am until 3:00pm, commencing Saturday 12 May 2018;

(b) thereafter for a period of four (4) months each weekend namely on each alternate Saturday from 10:00am until 5:00pm and each intervening Sunday from 10:00am until 5:00pm;

(c) subject to paragraph 15 of this Order thereafter for a period of three (3) months each alternate weekend from 10:00am Saturday until 12:00noon Sunday;

(d) thereafter for a period of two (2) months each alternate weekend from 10:00am Saturday until 5:00pm Sunday;

(e) thereafter for a period of two (2) months each alternate weekend from 5:00pm Friday until 5:00pm Sunday;

(f) thereafter for a period of two (2) months each alternate weekend from 5:00pm Friday until 5:00pm Sunday and every other Thursday from the conclusion of school until 7:00pm;

(g) thereafter for a period of two (2) months each alternate weekend from the conclusion of school Friday until the commencement of school Monday, and every other Thursday from the conclusion of school until 7:00pm;

(h) in the first school term holidays following the commencement of alternate weekend time from Friday to Sunday pursuant to paragraph (3)(e) hereof:

(i) the first week of the school term holidays from the conclusion of school until 5:00pm on the middle Saturday of the school term holidays;

(ii) for the Christmas school holidays, pending the said children reaching the age of eight (8) years, on a week-about basis with the father to have the first week of the holidays and each alternate week thereafter save and except as set out in this Order;

(i) in 2018 and each alternate year thereafter from 3:00pm Christmas Day until 5:00pm on 26 December provided that the said children are in the mother’s care from 5:00pm Christmas Eve until 3:00pm Christmas Day;

(j) in 2019 and each alternate year thereafter from 5:00pm Christmas Eve to 3:00pm Christmas Day provided that the said children are in the mother’s care from 3:00pm Christmas Day until 5:00pm on 26 December; and

(k) on Father’s Day from 10:00am until 5:00pm provided the said children are in the mother’s care on Mother’s Day from 10:00am until 5:00pm.

That handover of the said children for their time with the father shall take place at the Town A Children’s Contact Centre with the parties to take all steps necessary to enrol in the said Service forthwith.

That in the event of the handover service being unavailable handovers shall occur inside the Town B police station.

That commencing in 2019 handovers of the said children for the time with the father take place at the said children’s school and such handovers not taking place at the said children’s school take place inside the Town B police station.

That the parties keep each other advised of a current mobile telephone contact number only to be used to communicate in relation to matters referred to in this Order or any other significant issues concerning the said children.

That each party inform the other of any significant illness or injury suffered by either of the said children whilst in their care.

That as and from the commencement of the school year in 2019, the mother keep the father informed of the details of the said children’s current school.

10.

That as and from the commencement of the school year in 2019, the father is hereby authorised to obtain at his cost directly from the school copies of school newsletters, reports, photographs and any other material to which the parents are normally entitled.

11.

That as and from the commencement of the school year in 2019, the father is hereby authorised to attend any school functions, events or interviews to which parents are normally invited provided that the father gives the mother at least forty-eight (48) hours’ notice of his intention to attend.

12.

That the parties take all steps necessary to attend upon Ms J at Relationships Australia to address inter alia issues such as parental alienation, provision of support to the alienated parent, anger management if appropriate and the provision of support to the said children as referred to in paragraph 150 of the family report of Ms K published on 3 April 2017 (“the report”).

13.

That liberty is granted to the parties to provide Ms J with a copy of the report.

14.

That in the event that Ms J considers it is not appropriate for her to address the issue of the father’s anger management skills, the father shall attend upon either Mr T or Mr A or such person as they may refer him to address his anger management skills.

15.

That the commencement of overnight time with the said children shall be subject to the father completing:

(a) the Kids are First post separation parenting program and providing evidence of completion to the mother; and

(b) his attendance upon Ms J, Mr T or Mr A to address his anger management skills and providing the mother with a copy of the certificate of completion or a written report evidencing the same.

16.

That the parties use as and by way of a communication book, the Relationships Australia MyMob app to communicate in respect of issues concerning the welfare of the said children.

17.

That each party be restrained and injunctions are hereby granted restraining each of them from:

(a) permitting the said children to consult any counsellor, psychologist, psychiatrist, therapist or mental health practitioner without the prior written consent of the other;

(b) assaulting, harassing, abusing, threatening or intimidating the other or permitting anyone else to do so;

(c) denigrating each other in the presence of or within the hearing of, the said children or permitting any other person else to do so;

(d) consuming alcohol to excess or any illicit substance for twenty-four (24) hours prior to or during any period of time the said children are in their care;

(e) physically disciplining the said children;

(f) photographing or recording the said children other than in the usual social circumstances; and

(g) discussing these proceedings with or in the presence of the said children or permitting any third person to do so, including any discussion whatsoever on social media.

18.

That the appointment of the Independent Children's Lawyer be hereby discharged.

19.

The proceedings in respect of children’s issues be otherwise dismissed.

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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