TESORIERO & SONORA - [2017] FamCA 674

FAMILY COURT OF AUSTRALIA

TESORIERO & SONORA

[2017] FamCA 674

FAMILY LAW – CHILDREN – Best Interests – Where the father has disengaged from proceedings – Where there are allegations the father hits the child – Where the father plead guilty to assault of the child – Where there was an apprehended domestic violence order in place protecting the child from the father – Where the child has expressed fear of the father – Where orders made as sought by the mother.

FAMILY LAW – PRACTICE AND PROCEDURE – Undefended hearing – Where the father has disengaged from the proceedings – Where the father’s legal representatives were unable to contact him and withdrew – Where it is appropriate for the matter to proceed on an undefended basis.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN(7)
Family Law Rules 2004 (Cth) r 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Farmer & Rogers [2010] FamCAFC 253
Goode & Goode [2006] FamCA 1346
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GRR [2010] HCA 4

APPLICANT:

Ms Tesoriero

RESPONDENT:

Mr Sonora

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Family Law Parramatta

FILE NUMBER:

PAC

2329

2016

DATE DELIVERED:

1 September 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

2 August 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Watson Law Pty Ltd

SELF REPRESENTED RESPONDENT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Family Law Parramatta

Orders

That the mother, Ms Tesoriero, have sole parental responsibility for the child, B born … 2005.
That the said child live with the mother, Ms Tesoriero.
That the father, Mr Sonora, shall spend no time with the child.
That the father, Mr Sonora, is restrained from molesting, harassing or abusing the mother and/or the child and from entering upon the mother and/or the child’s place of residence, place of employment or at any other place where they may be from time to time and from approaching or entering upon the child’s school and from going within 100 metres or loitering within the vicinity of any of the aforesaid premises.

THE COURT NOTES THAT

There is no application for costs by the Independent Children’s Lawyer.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tesoriero & Sonora has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2329 of 2016

Ms…

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: TESORIERO & SONORA [2017] FamCA 674
Case: [2017] FamCA 674
Decision Date: 1 September 2017

CaseChat Overview and Summary

In the matter of *Tesoriero & Sonora*, Foster J of the Family Court of Australia considered an application by the mother, Ms Tesoriero, concerning the parenting arrangements for the child, B. The father, Mr Sonora, had disengaged from the proceedings, leading to his legal representatives withdrawing from the case. The proceedings were therefore conducted on an undefended basis.

The central legal issues before the Court were the determination of the child's best interests in relation to parental responsibility, living arrangements, and the extent of time the child should spend with each parent. The Court was also required to consider whether to make orders restraining the father's conduct towards the mother and child, given the circumstances presented.

Foster J's reasoning was heavily influenced by the father's disengagement and the serious allegations made against him. These included allegations that the father had hit the child, a guilty plea to assault of the child, and an apprehended domestic violence order in place protecting the child from the father. The child had also expressed fear of the father. Applying the paramountcy principle of the child's best interests, the Court found it appropriate to proceed on an undefended basis due to the father's lack of participation.

Consequently, the Court made orders granting the mother sole parental responsibility for the child, ordering that the child live with the mother, and that the father spend no time with the child. Further orders were made restraining the father from molesting, harassing, or abusing the mother and/or the child, and prohibiting him from attending their place of residence, employment, school, or loitering within 100 metres of these locations. There was no application for costs by the Independent Children’s Lawyer.

Orders

Orders of the court

That the mother, Ms Tesoriero, have sole parental responsibility for the child, B born … 2005.

That the said child live with the mother, Ms Tesoriero.

That the father, Mr Sonora, shall spend no time with the child.

That the father, Mr Sonora, is restrained from molesting, harassing or abusing the mother and/or the child and from entering upon the mother and/or the child’s place of residence, place of employment or at any other place where they may be from time to time and from approaching or entering upon the child’s school and from going within 100 metres or loitering within the vicinity of any of the aforesaid premises.

THE COURT NOTES THAT

There is no application for costs by the Independent Children’s Lawyer.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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