Sinistra and Sinistra - [2010] FMCAfam 272

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINISTRA & SINISTRA

[2010] FMCAfam 272

FAMILY LAW – Parenting – father’s time with the children – father has been spending time with the three children of the relationship since separation nearly three years ago but has not spent overnight time with them – allegations about alcohol consumption, family violence and the father’s parenting capacity – whether there should be an order for sole parental responsibility or equal shared parental responsibility.

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA

Amador & Amador [2009] FamCAFC 196
Chappell & Chappell (2008) 39 Fam LR 627
Oakley & Cooper [2009] FamCAFC 133

Applicant:

MS SINISTRA

Respondent:

MR SINISTRA

File Number:

SYC 6794 of 2007

Judgment of:

Walker FM

Hearing dates:

1 & 2 March 2010

Date of Last Submission:

19 March 2010

Delivered at:

Sydney

Delivered on:

28 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr Millar

Solicitors for the Applicant:

Christopher Mackay Lawyer

Counsel for the Respondent:

Mr Connor

Solicitors for the Respondent:

Pitcher Walton & Co

THE COURT ORDERS THAT:

The children, [X] born 2001, [Y] born 2003 and [Z] born 2005 (“the children”), are to live with the mother.
The mother is to have sole parental responsibility for the children.
Unless otherwise agreed, the father is to spend time with the children:
(a)Each Wednesday from 4.00pm until 7.00pm commencing the first Wednesday following the date of these orders.
(b)Each alternate Saturday from 10.00am until 5.00pm.
(c)Provided the father shows evidence to the mother that he has completed a Triple P parenting course prior to November 2010, commencing from the first Saturday that he would be spending time with the children in November 2010 he is to spend time with them from 10.00am Saturday until 4.00pm Sunday on each of the second Saturdays when he would be seeing the children.
(d)Commencing from November 2011, and provided the father has spent at least nine occasions for overnight time with the children pursuant to the above order, he is then to spend time with the children each alternate Saturday from 10.00am to 5.00pm each Sunday commencing on the first Saturday he will be spending time with them in November 2011.
(e)Commencing in January 2012 the father is to spend two block periods of one week each with the children each year. Unless otherwise agreed, the father should spend a week with the children commencing on the first Saturday in January and a week with the children in the first week of the mid year school holidays commencing also on the first Saturday of the school holidays.

Special days

Unless otherwise agreed the following shall be the arrangements for special days:
(a)The father shall spend time with the children on Christmas Day each year from 9.00am until 12noon.
(b)On Father’s Day if the children are not otherwise in the father’s care they are to spend time with him from 10.00am until 6.00pm.
(c)On Mother’s Day if the children are not otherwise in the mother’s care they are to…

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

AGLC: Sinistra and Sinistra [2010] FMCAfam 272
Case: [2010] FMCAfam 272
Decision Date

CaseChat Overview and Summary

In this case, the Federal Magistrates Court of Australia was asked to determine the best way to arrange parenting for the three children of the parties. The father sought an increase in the time he could spend with the children, including overnight time, and sought equal shared parental responsibility. The mother sought sole parental responsibility and that the father be restrained from consuming alcohol and entering her premises. The evidence in the case showed that the father had been spending time with the children but not overnight and that the mother had concerns about the father's capacity to care for the children. The evidence showed that the father had a longstanding problem with alcohol consumption and that his behaviour towards the mother was abusive and could be characterised as family violence. The evidence also showed that the father had been untruthful and had involved the children in the conflict between the parents. The Court found that there were risks to the children's well-being if they were to spend overnight time with their father and that the father's behaviour could be psychologically harmful to them. The Court found that the father's alcoholism and his abusive behaviour towards the mother were relevant to the determination of the children's best interests. The Court decided that it was not in the children's best interests that the father spend overnight time with them unless certain restraints were imposed and certain conditions were satisfied. The Court proposed to make orders which would allow for the children to spend increasing amounts of time with their father, including overnight time, in the future. Whether this occurred would depend on the father himself. The Court made orders for sole parental responsibility in favour of the mother and made orders to restrain the father in various ways.

Orders