Acconci & Pagani
[2024] FedCFamC1F 92
•26 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Acconci & Pagani [2024] FedCFamC1F 92
File number: BRC 16442 of 2021 Judgment of: CAREW J Date of judgment: 26 February 2024 Catchwords: FAMILY LAW – Children – Where the parents reached agreement about a final parenting order on the first day of a five day trial – Where the independent children’s lawyer supports the proposed order – Where the proposed order appropriately addresses any safety concerns and is in the child’s best interests – Order made by consent Legislation: Family Law Act 1975 (Cth) Number of paragraphs: 12 Date of hearing: 26 February 2024 Place: Brisbane Counsel for the applicant: Ms Horsley Solicitor for the applicant: Wilsons The Family Lawyers Counsel for the respondent: Mr Carlton Solicitor for the respondent: Kennedy Spanner Lawyers Counsel for the independent children’s lawyer: Mr McGregor Solicitor for the independent children’s lawyer: Legal Aid Qld ORDER
BRC 16442 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ACCONCI
Applicant
AND: MS PAGANI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
26 FEBRUARY 2024
UPON THE MOTHER UNDERTAKING that she
A.Will continue attending on:
(a)Dr C, as recommended by that psychiatrist;
(b)Ms B, as recommended by that psychologist; and
(c)her treating General Practitioner, on at least one (1) occasion in every three (3) month period (unless otherwise recommended in writing by her treating General Practitioner);
B.Will notify the Father of any occasion on which she is admitted to hospital or the subject of an emergency examination authority, within twenty-four (24) hours of same occurring.
AND UPON THE FATHER UNDERTAKING (ON A WITHOUT ADMISSION BASIS), THAT UNLESS PURSUANT TO WRITTEN AGREEMENT OR IN ACCORDANCE WITH THIS ORDER that he
A.In the event the Mother informs him in writing of the details of her place of residence and/ or place of employment from time to time, will not approach within one hundred (100) metres of those locations;
B.Will refrain from attending X’s school;
C.Will refrain from contacting, attempting to contact and/ or asking someone else (other than a legal representative) to contact the Mother; and
D.Will refrain from approaching within thirty (30) metres of the Mother when she is at any place.
THE COURT ORDERS BY CONSENT THAT:
Parental Responsibility
1.The Mother have sole parental responsibility for the care, welfare and development of the child X born 2014 (hereafter referred to as X).
2.The Mother, in her exercise of her sole parental responsibility for the long term care, welfare and development of X, must:
(a)consult with the Father in writing about any long-term decision that is to be made for X, at least fourteen (14) days prior to the making of such decision, unless in an emergent circumstance;
(b)consider any written response provided by the Father providing his input into the long-term decision to be made for X, with the Father to provide his response to the Mother within seven (7) days; and
(c)inform the Father in writing of the long-term decision made within forty-eight (48) hours of such decision being made.
Living Arrangements
3.X live with the Mother.
4.The Mother be restrained and an injunction hereby issue restraining the Mother from:
(a)relocating X’s place of residence from a forty (40) kilometre radius from Suburb D without written agreement with the Father or an order of the court; and
(b)enrolling X in, or facilitating his attendance at, home schooling without written agreement with the Father or an order of the court.
Time with the Father
Stage One
5.For a period of two (2) months from the date of this order, X will spend time with the Father as agreed between the parents in writing and failing agreement, as follows:
(a)supervised by E Contact Centre at Suburb D (hereafter referred to as E Contact Centre) (or through and at such other supervision services as agreed by the parties in writing or as nominated by E Contact Centre) and each party shall:
(i)contact E Contact Centre within seven (7) days and request an intake interview;
(ii)attend for the assessment at the times and places appointed by E Contact Centre;
(iii)comply with all reasonable rules of E Contact Centre; and
(iv)comply with all reasonable requests or directions of the staff at E Contact Centre;
(b)if after the assessment intake procedure that parties are accepted by E Contact Centre as suitable for E Contact Centre to facilitate supervised contact, the Father will spend time with X for a period of three (3) hours on one (1) day each weekend, and such contact is to occur at E Contact Centre;
(c)supervised time in accordance with Order 5(b) is to be supervised by the staff nominated by the manager of the Contact Centre and the Father will be responsible for the fees associated with the supervision on each occasion of the supervision.
Stage Two
6.For a period of two (2) months following the conclusion of time contemplated by Order 5 herein, X will spend time with Father as agreed between the parents in writing and failing agreement, as follows:
(a)for a period of three (3) hours on one (1) day each weekend unsupervised, as agreed between the parents in writing; and
(b)failing the parents reaching agreement, and unless otherwise directed by E Contact Centre, from 10.00am until 1.00pm each Sunday.
7.For the purposes of the arrangements contemplated by Order 6 herein, changeover will occur at E Contact Centre.
Stage Three
8.For a period of two (2) months following the conclusion of time contemplated by Order 6 herein, X will spend time with Father as agreed between the parents in writing and failing agreement, as follows:
(a)for a period of eight (8) hours on one (1) day each weekend as agreed between the parents in writing, on an unsupervised basis; and
(b)failing the parents reaching agreement, and unless otherwise directed by E Contact Centre, from 10.00am until 6.00pm each Sunday.
9.For the purposes of the arrangements contemplated by Order 8 herein, changeover will occur at E Contact Centre.
Stage Four
10.For a period of two (2) months following the conclusion of time contemplated by Order 8 herein, X will spend time with the Father as agreed between the parents in writing and failing agreement, each alternate weekend, from midday Saturday until midday Sunday.
11.For the purposes of the arrangements contemplated by Order 10 herein, changeover will occur as follows:
(a)on the Saturday, at E Contact Centre, and in the event E Contact Centre cannot accommodate changeover at midday, changeover will occur at a time that can be accommodated by E Contact Centre between 10.00am and 3.00pm on Saturday;
(b)on the Sunday, at F Contact Centre at Suburb G (hereafter referred to as F Contact Centre), and in the event F Contact Centre cannot accommodate changeover at midday, changeover will occur at a time that can be accommodated by F Contact Centre between 10.00am and 3.00pm on Sunday.
12.For the purposes of changeover occurring at F Contact Centre, the Mother and the Father will:-
(a)contact F Contact Centre and request an intake interview;
(b)attend for the assessment at the times and places appointed by F Contact Centre;
(c)comply with all reasonable rules of F Contact Centre;
(d)comply with all reasonable requests or directions of the staff at F Contact Centre; and
(e)share the fees of F Contact Centre.
Stage Five
13.Following the arrangements contemplated by Order 10 herein and thereafter, X will spend time with the Father at all times as agreed between the parents in writing and failing agreement, as follows:
(a)during the gazetted school term, from afterschool / 3.30pm Friday until 4.00pm Sunday each alternate weekend; and
(b)during the gazetted school holiday periods, as follows:
(i)at the commencement of the autumn, winter and spring school holidays, from afterschool / 3.30pm on the final day of school until 4.00pm on the second Saturday of the school holiday period; and
(ii)during the summer school holiday period, with the Mother and the Father on a ‘week about’ arrangement, from 4.00pm Saturday until 4.00pm the following Saturday, with whom the alternating weeks are to be spent with to be determined by Order 15 herein (such that the Father will either spend the first, third and fifth weeks of the holiday period with X, or that he will spend the second, fourth and sixth weeks of the holiday period with X).
14.For the purposes of the arrangements contemplated by Order 13 herein, changeover will occur as follows:
(a)for any changeover that occurs at the commencement of X’s time with the Father:
(i)on non-school days, at F Contact Centre (or in the event F Contact Centre cannot (or will not) assist, then such other contact centre as nominated by the Mother); and
(ii)on school days, at X’s school with the father to collect the child from the “kiss and go” collection service at the school (or a ‘dropoff area’ equivalent, should X attend a different school from time to time); and
(b)for any changeover that occurs at the conclusion of X’s time with the Father, at F Contact Centre (or in the event F Contact Centre cannot (or will not) assist, then such other contact centre as nominated by the Father).
Christmas Arrangements
15.Notwithstanding the care arrangements for X contemplated in this Order, X will spend time with the Mother and Father during the Summer school holiday period at all times as agreed by the parents in writing and failing agreement, as follows:
(a)from 2024 and every even numbered year thereafter, with the Father to accord with the week about arrangement contemplated by Order 13(b)(ii) herein, such that the Father be afforded the opportunity to spend time with X from the Saturday immediately prior to Christmas Day until the Saturday immediately following Christmas Day; and
(b)from 2025 and every odd numbered year thereafter, with the Mother to accord with the week about arrangement contemplated by Order 13(b)(ii) herein, such that the Mother be afforded the opportunity to spend time with X from the Saturday immediately prior to Christmas Day until the Saturday immediately following Christmas Day.
Electronic Communication
16.The father is to communicate with the child by Zoom, or such medium as agreed between the parents, each Tuesday from 6.00pm until 6.30pm, in addition to at any other reasonable times as requested by X, with the Father to initiate the call with X.
Communication between the parents about the child
17.The Mother and the Father shall communicate through the parenting application, ‘Our Family Wizard’, in relation to matters pertaining to X, and this order is sufficient authority for that contact to occur.
18.The Mother and the Father shall notify the other, as soon as practicably possible, and in any event within four (4) hours, of any hospitalisation of, or serious injury or serious illness suffered by X whilst in that parties’ care.
Obligations of the Father
19.The Father will attend upon H Family Services (or any other service recommended by X’s psychologist), at the direction of X’s therapist from time to time, for a period of no less than six (6) months.
20.The Father is to take all reasonable steps necessary to implement any strategies as recommended by H Family Services (or any other service recommended by the child’s psychologist) to manage the child’s autism, attention deficit and hyperactivity disorder and anxiety including but not limited to speech therapy, occupational therapy and home based programmes.
21.Within fourteen (14) days from the date of this Order, the Father shall enrol in a facilitated parenting course specific for parenting children with autism (for example, a course offered by Autism Spectrum Australia), or such course as recommended by H Family Services (or any other service recommended by the child’s psychologist), and the Father will provide to the Mother a copy of his completion certificate.
Obligations of the Mother
22.Within seven (7) days from the date of this Order, the Mother shall make an appointment to attend upon her psychologist Ms B as soon as possible to discuss the implementation of this Order.
23.The Mother is to take all reasonable steps necessary to implement any strategies as recommended by H Family Services (or any other service recommended by the child’s psychologist) to manage the child’s autism, attention deficit and hyperactivity disorder and anxiety including but not limited to speech therapy, occupational therapy and home based programmes.
24.The Mother will provide to the Father, within fourteen (14) days from the date of this Order, will provide to the Father in writing a list of X’s treating and/ or therapeutic medical practitioners, allied health providers and/ or any other professional that provides X with medical assistance.
Authorities
25.This order be sufficient authority to any doctor, specialist, allied health professional and/ or dentist upon which X may attend, to provide the requesting parent with all information they may request in respect of X excluding any information or document which identifies the residence of the Mother.
26.This order be sufficient authority for any school attended by X to release to the requesting parent information in relation to X’s educational progress and other school related activities, and to supply each parent with copies of school reports, photographs, certificates and awards as and when requested and at the expense of the parent making the request and excluding any information or document which identifies the residence of the Mother.
Restraints and Injunctions
27.Each parent is restrained from making any negative, critical, belittling or derogatory comments in relation to the other parent or members of the other parent’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of X, or by way of written correspondence or on social media, and each parent will use their best endeavours to ensure that no other person does so.
28.The parties are restrained from striking X, or otherwise physically disciplining him.
29.The parties are restrained from questioning X about the personal life of the other parent, including questions that reveal the Mother’s residential location.
30.Each parent is permitted to provide a copy of this Order X’s:
(a)health care professionals;
(b)schools, that X may attend; and
(c)any professional supervisory agency supervising the child’s time with the Father.
Explanation of Orders
31.The terms of this Order shall be explained to X by the Independent Children’s Lawyer within a period of seven (7) days from the date of this Order.
32.For the purpose of giving effect to Order 31 hereof, the Independent Children’s Lawyer:
(a)will consult with Ms J at H Family Services, so as to explain the orders to her; and
(b)is at liberty to offer Ms J the opportunity to be present during the meeting between the Independent Children’s Lawyer and X.
THE COURT FURTHER ORDERS THAT:
33.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
NOTATION:
A.It is the Mother and Father’s intention by the wording of Orders 15(a) and 15(b) that:
(a)should Christmas fall in the first, third or fifth week of the holiday period, in even numbered years the Father would spend the first, third and fifth week of the holiday period with X; or
(b)should Christmas fall in the second, fourth or sixth week of the holiday period in even numbered years, that he would spend the second, fourth and sixth week of the holiday period with X.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J:
This is a parenting dispute that had been listed for a five day trial commencing today. The proceedings concern a nine year old boy, X, who has not spent any time with his father since his parents separated in April 2020. There have been some video calls between the father and X but on all accounts they have not been particularly successful.
The parents have however reached agreement about a final parenting order which has the support of the independent children’s lawyer (“ICL”). Both the parents, and the ICL, are represented by very experienced counsel and the lawyers involved are very experienced in family law matters.
The mother made serious allegations of violence against the father and alleged that he had sexually abused the child. The father denies the allegations and contends that he was the victim of family violence perpetrated by the mother. There are no protection orders in place although it appears that competing applications were historically resolved by mutual undertakings in the State Magistrates Court. Further, the father proffers an undertaking to this Court that other than by written agreement or in accordance with the proposed order, he will not attend the mother’s residence, place of work, or X’s school, not contact the mother other than through a lawyer, and not approach the mother if he sees her in public.
The parents and the ICL submit that the evidence before the Court would not satisfy me that either parent poses an unacceptable risk of harm to the child. Police and the Department of Child Safety, Seniors and Disability Serviced (“Child Safety”) involvement have not resulted in any criminal charges nor has there been any formal intervention by Child Safety. The mother, in particular, informed the Court through her counsel, that she accepts the allegations she has historically made against the father are not supported by evidence sufficient to satisfy the Court that the father poses an unacceptable risk of harm.
The mother has struggled with a number of mental health issues, but the prognosis is reasonably positive, and the mother has indicated her commitment to ensuring that the proposed parenting order works.
The mother also proffers an undertaking to this Court to continue treatment with her psychiatrist and psychologist and general practitioner as recommended, and to inform the father if she is admitted to hospital or the subject of an emergency examination order.
It seems clear that X has historically been exposed to arguments between his parents and since separation has been exposed to considerable negativity about the father, in the mother’s household.
When the family report was completed in 2023, there was a stark contrast noted between what X said about his father and the relaxed and apparent warm relationship that existed between them during observation.
It is proposed by the parents and recommended by the ICL that X will initially spend supervised time with his father before moving to unsupervised daytime before gradually increasing to alternate weekends and school holiday time.
It is proposed that the parents will not come into contact at changeovers so as to minimise the risk of X being exposed to conflict.
Both parents have support systems in place. The father lives with his partner, Ms K and the mother has adult children from an earlier relationship living with her. It is to be hoped that these people will support the parents in giving effect to the order they ask the Court to make in what they consider to be in the best interests of their child.
I am satisfied that the proposed order appropriately addresses any safety concerns and is in the child’s best interests. I accept the undertakings of each party and make the order in the terms of the minute signed by the parents and the ICL and initialled by me.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 26 February 2024
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