Alderisi & Alderisi

Case [2023] FedCFamC1F 1076

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Alderisi & Alderisi [2023] FedCFamC1F 1076

File number(s): ADC 5322 of 2019
Judgment of: BERMAN J
Date of judgment: 14 December 2023
Catchwords:

FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Where there are eight children – Where the mother has the primary care of seven children – Where the father has the primary care of one child – Where the father seeks orders for the children to live with the mother and spend significant time with him – Where the mother seeks orders for supervised time with the father –Allegation of risk – Where the mother alleges the father perpetrated family violence – Where the father undermines the mother – Where the father alleges that the mother sexually assaulted the eldest child – Where the father seeks a finding on the balance of probabilities – Where the father’s proposed orders are inconsistent with his allegations of risk – Consideration of a child’s evidence – Consideration of treatment of evidence – No finding made – Children’s wishes – Consideration of the siblings spending time together – Where the Court takes a cautious approach – Orders.

FAMILY LAW – PROPERTY – Modest asset pool – Contributions – Where the father owned a property prior to the relationship – Future needs – Where the mother has the primary care of seven children – Where the mother is unable to work for the foreseeable future – Where the mother seeks to retain the former matrimonial home – Adjustment for the father’s contribution – Adjustment for the mother’s significant future needs – Orders.

Legislation:

Evidence Act 1995 (Cth) s 135

Family Law Act1975 (Cth) Div 12A, ss 60CA, 60B, 60CC, 61DA, 69ZV, 69ZW, 69ZT, 75, 79.
Cases cited:

Baglio & Baglio [2013] FamCA 105

Briginshaw v Briginshaw (1938) 60 CLR 336

Harridge & Harridge [2010] FamCA 445

M v M [1988] HCA 68

N & S & The Separate Representative (1996) FLC 92-655

S v R (1999) FLC 92-834

S v S [1993] NZ FLR 657

Vasser v Taylor-Black (2007) FLC 93-329

VJ v CJ (1997) FLC 92-772

Division: Division 1 First Instance
Number of paragraphs: 386
Date of hearing: 13, 14, 15, 16, 26, 27, 28, 29 June 2023 & 3 October 2023
Counsel for the Applicant: Mr Bowler
Solicitor for the Applicant: Marciano Lawyers
Counsel for the Respondent: Ms Boyle
Solicitor for the Respondent: The Family Law Project

ORDERS

ADC 5322 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR ALDERISI

Applicant
AND:

MS ALDERISI

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

14 DECEMBER 2023

THE COURT ORDERS THAT:

1.Mr Alderisi (“the father”) shall have sole parental responsibility for S born 2010.

2.S shall live with the father.

3.S shall spend time with Ms Alderisi (“the mother”) subject to his wishes.

4.The mother shall have sole parental responsibility for T born 2011, U born 2012, V born 2014,…

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AGLC
Alderisi & Alderisi [2023] FedCFamC1F 1076
Case
[2023] FedCFamC1F 1076
Decision Date

CaseChat Overview and Summary

The matter before the court involved the parents of eight children, where the father sought sole parental responsibility for one child and the mother sought sole parental responsibility for the other seven. The father sought orders for the children to live with the mother and spend significant time with him, while the mother sought orders for supervised time with the father. The court had to consider allegations of family violence and sexual assault, as well as the children's wishes. The court also had to consider the division of property between the parties.

The court considered the evidence of the parties and the children, as well as the treatment of evidence in cases of alleged family violence and sexual assault. The court found that the father's allegations of family violence were not proven to the civil standard of proof, but that there was some reasonable basis for concern that the father may not support the mother's relationship with the children. The court also found that the mother's allegations of sexual assault were not proven to the civil standard of proof, but that there was some reasonable basis for concern that the father may not be supportive of the mother's relationship with the children.

The court took a cautious approach in making its orders, considering the children's wishes and the need for a meaningful relationship with both parents. The court made orders for sole parental responsibility for each child, as well as orders for time spent with each parent. The court also made orders for the division of property between the parties, taking into account the father's contribution to the relationship and the mother's future needs.

The court made orders for the father to have sole parental responsibility for the eldest child, who was to live with him and spend time with the mother subject to his wishes. The court also made orders for the mother to have sole parental responsibility for the other seven children, who were to live with her and spend time with the father. The court made orders for the children to spend time with the father on a supervised basis for the first nine months, with supervision by the paternal grandmother or another member of the father's family. After nine months, the children were to spend time with the father each alternate weekend from Friday through to Monday and half of school holidays.

The court also made orders for the division of property between the parties, taking into account the father's contribution to the relationship and the mother's future needs. The court ordered that the mother was to pay a settlement sum to the father and that the father was to transfer his interest in the Suburb C property to the mother. The court also made orders for the parties to exchange information regarding the children's health, education and day to day welfare, and for handovers to take place at the residence of the parent that has the children in their care.

In conclusion, the court made orders for parental responsibility and time spent with each parent, as well as orders for the division of property between the parties. The court took a cautious approach in making its orders, considering the children's wishes and the need for a meaningful relationship with both parents. The court also made orders for supervision of the father's time with the children, taking into account the allegations of family violence and sexual assault. The court's orders reflect the complex dynamics of the family and the need for careful consideration of the children's best interests.

Orders

Orders of the court

ADC 5322 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ALDERISI

Applicant

AND:

MS ALDERISI

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

14 DECEMBER 2023

THE COURT ORDERS THAT:

1. Mr Alderisi (“the father”) shall have sole parental responsibility for S born 2010.

2. S shall live with the father.

3. S shall spend time with Ms Alderisi (“the mother”) subject to his wishes.

4. The mother shall have sole parental responsibility for T born 2011, U born 2012, V born 2014, W born 2016, X and Y both born 2018 and Z born 2020.

5. T, U, V, W, X, Y and Z shall live with the mother.

6. T shall spend time with the father subject to his wishes.

7. U, V, W, X, Y and Z shall spend time with the father as follows:

(a) For a period of nine (9) calendar months from the date of this order:

(i) Each alternate Sunday from 10.00 am to 5.00 pm; and

(ii) At such further and other times as agreed between the parties in writing.

8. The father’s time in accordance with order 7 be supervised by the paternal grandmother or such other person as shall be nominated by the father in writing.

9. The paternal grandmother or such other person as may be nominated to supervise the father’s time shall file and serve an affidavit within seven (7) days of the father’s nomination confirming that he or she has read the brochure “Should I Supervise Contact” as published by the Legal Services Commission and that she or he understands and will comply with the obligations of a supervisor.

10. After the expiration of nine (9) calendar months from the date of the order, U, V, W, X, Y and Z will spend time with the father as follows:

(a) Each alternate weekend from 10.00 am Saturday to 10.00 am Sunday;

(b) That after a period of three (3) months, the children will spend time with the father each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday;

(c) That after a further period of three (3) months, the children will spend time with the father each alternate weekend from the conclusion of school on Friday (or 3.30 pm if a non-school day) until the commencement of school on the following Monday (or 8.30 am if a non-school day); and

(d) As and from end of the third school term in 2024, for one half of each of the short school holidays and in default of agreement for the first half.

11. The children spend week about with the parties during the Christmas school holiday period.

12. Order 10(c) is suspended during any period of school holidays commencing end of third term 2024.

13. The parties exchange all information regarding the children’s health, education and day to day welfare.

14. Handovers that do not occur at school or childcare are to take place at the residence of the parent that has the children in their care, by the parent collecting the children.

15. All school uniforms, regular items of clothing including but not limited to school bags, educational materials, sporting items, toys and all belongings that each child wishes to have in their possession shall travel with each child at handovers, or as may be otherwise agreed.

16. Within sixty (60) days of the making of these orders, the mother do pay to the trust account of the father’s solicitors for and on his behalf, the sum of THREE HUNDRED AND THIRTY THOUSAND DOLLARS ($330,000) (“the settlement sum”).

17. Contemporaneously with the payment of the settlement sum, the father do all things necessary and sign all documents as may be required to transfer to the mother all of his rights, title and interest in the property situate at B Street, Suburb C being the whole of the land comprised in Certificate of Title Volume … Folio … (“the Suburb C property”).

18. The parties each retain all their right, title and interest in and their own superannuation entitlements and have no further claim on such entitlements of the other.

19. Unless otherwise specified in these orders, and except for the purpose of enforcing the payment of any money under these or any subsequent orders:

(a) Each party be solely entitled to the exclusion of the other to all property, in the possession of such party as at the date of these orders;

(b) Any money standing to the credit of the parties in a bank account are to be retained by the party in the name as the account appears;

(c) Each party hereby forgoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided by these orders;

(d) All insurance policies are to become the sole property of the owner named thereon; and

(e) Each party be solely liable for and indemnify the other against any liability incumbering in an item of property to which that party is entitled pursuant to these orders.

20. Thereafter, each of the parties shall retain all assets in their possession and/or control and all liabilities in their respective names and in the case of liabilities retained by each party, each party does hereby indemnify the other in respect of same.

21. In the event that the mother is unable to obtain the necessary finance to effect the transfer and payment of the settlement sum to the father, the Suburb C property shall be placed on the market for sale with such real estate agent as may be nominated and/or agreed by the parties within fourteen (14) days of default and at such price and on such conditions as may be agreed between the parties but in the absence of agreement as recommended by the said nominated agent and the proceeds of sale shall be applied as follows:

(a) Payment of any agent’s commission, advertising expenses and legal expenses of the sale;

(b) Payment of any outstanding outgoings, council rates and/or emergency services levies;

(c) The payment to the father of the settlement sum as provided for herein; and

(d) The balance to be paid to the mother.

22. Pending the sale or transfer of the Suburb C property, the mother shall continue to pay as they fall due, all outgoings in respect of the Suburb C property and she will hereby indemnify the father in respect of same.

23. In the event that either party refuses or neglects to execute any further deed or instrument, a Judicial Registrar of the Federal Circuit and Family Court of Australia (Division 1) be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of such party and to do all such acts and things necessary to give validity to the operation to the deed of instrument.

24. Each party bear their own costs of these proceedings.

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.

Background

Background to the litigation

The mother seeks to retain the Suburb C property and contemporaneously with the transfer of the husband’s interest in the Suburb C property, the mother is to pay a settlement sum calculated on the basis of a 75/25 per cent division of the parties’ non-superannuation and superannuation assets.BACKGROUND The father is 53 years of age and the mother is 37 years of age. The parties have been in a relationship since 2004 and commenced cohabitation as at the date of marriage in 2004. At the time of marriage, the father owned a unit which was sold in 2006 for over $250,000. The net proceeds were then used to purchase a subsequent property at Suburb F. At the commencement of the relationship the mother was employed in an administration position and the father worked in a casual position. It is agreed that the parties pooled their resources. Shortly before the birth of S in 2010, the mother left her employment. The father was working part-time but then lost his job six months later. The income received was by way of a Centrelink benefit, pension or allowance. It appears that the father did not re-enter employment for a few years. Between 2010 and 2020, the parties’ children were born. T was born in 2011, U in 2012, V in 2014, W in 2016, X and Y in 2018 and Z in 2020. The mother did not return to employment arising from the extensive needs of the children. In 2016, S was diagnosed with autism spectrum disorder (“ASD”) and the parties received a Carers Pension up until the time of separation. In 2012, the parties sold the Suburb F property and moved interstate. The parties then purchased a property at Suburb G. In 2014, the parties sold the Suburb G property and bought the Suburb C property outright for over $500,000. Between 2015 and 2018, the children were home schooled. The parties do not agree as to the extent of the involvement by each of them but it is likely that the parties were accepted as carers and therefore each entitled to a pension, benefit or allowance. The mother alleges that the father perpetrated family violence by referring to her in derogatory terms such as “fucking slut”, “ugly mole”, “fat arse”, “filthy pig” and saying “I should never have married you”. The mother further alleges that the father would throw her clothes down the stairs whilst they were living interstate. The father denies that he perpetrated family violence whilst the family lived interstate although he does accept that following an incident in 2014, where the father reacted aggressively to T when he tried to wipe his bottom, he was the defendant of a domestic violence restraining order (“DVO”). The father’s contention is that notwithstanding the DVO, the mother contacted him and sought a reconciliation. It was following this brief separation and the parties reconciling their differences that the family then moved back to City BB. Whilst denied by the father, the mother alleges that the father would push and pull her when angry or frustrated and would call her a “slut”. The incident was observed by T. The father denies the allegation and further contends that alleged assault is fabricated by the mother.

Evidence

Evidence Before The Court

The Court was assisted by the Case Outline documents provided by each of the parties and the ICL as well as a balance sheet.TREATMENT OF THE EVIDENCE At the commencement of trial, the Court highlighted the provisions of Divisions 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular, whether the Court should dispense with the provision of s 69ZT of the Act and apply excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”). The father continues to assert that the mother sexually assaulted S and that she poses an unacceptable risk of harm to him. For her part, the mother’s contention is that the father perpetrated ongoing family violence both to the mother and to the seven children who remain in her sole care. In M v M [1988] HCA 68 (“M v M”) the Full Court gave consideration to the treatment of allegations of sexual abuse. The Court considered that treating an allegation of sexual abuse as the paramount issue was an error. In Vasser v Taylor-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind. Their Honour’s quoted, with approval, the following passages from M v M (supra) at pages 77,080-82:-19.…In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to "regard the welfare of the child as the paramount consideration" (s.60D). The paramountcy of this consideration in proceedings for custody or access is preserved by s.64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue. 20.But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds(1973) 47 ALJR 499; 1 ALR 318; McKee v. McKee(1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 CLR 447, at 450, 458, 462, 463; 69 ALR 647.21.Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities. 22.In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 336, at 362. There Dixon J. said:“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

Decision

Reasons for decision

Parental responsibility is to be informed of what is in the best interests of the children. I have given careful consideration to the orders sought by the parties. The evidence supports a finding that the father should have sole parental responsibility for S whereas the mother should have sole parental responsibility for the remaining children.CONCLUSION The evidence readily supports a finding that the best interests of the children is supported by S remaining in the primary care of the father whereas the remaining seven children should remain in the primary care of the mother. As considered, it is not practically possible to put in place orders that would result in S spending time with the mother unless he wished to do so. At present, S is opposed to coming into contact with the mother for reasons that are not well established. The evidence supports a finding that S’s opposition to spending time with the mother is likely motivated by his alignment with the father and his seeking to support the father’s proposal for shared care. The difficulty for S is the finding that it is likely that S has either been directly coached by the father to allege that the mother sexually assaulted him or that the environment in the father’s home was conducive to S promoting a false narrative. As considered, the Court Child Expert did observe an emotional attachment between S and the mother contrary to any assertion that S is fearful of the mother or that she poses a risk to him. It may well be that once arrangements between the parties and the children are normalised and the litigation is behind them, S may resume a relationship with the mother on the basis that in doing so, his ability to engage with his siblings is enhanced. Careful consideration of the observations of the Court Child Expert and the significant and detailed engagement of CPS does not support a finding that the father poses an unacceptable risk of physical, psychological or emotional harm. I draw a distinction between the conduct of the father during the course of the parties’ relationship and the period thereafter. The father has undertaken a number of courses that were targeted and relevant to the more egregious aspects of his conduct and in particular, his temper and aggressive demeanour. A residual concern exists that arises out of the evidence given by the father and the inconsistent juxtaposition of orders sought by him for shared care with his case that seeks a finding that the mother sexually assaulted S. There is some reasonable basis for concern that the father is not supportive of the mother’s relationship with the children and he may seek to undermine her primary care if given an opportunity to do so. That consideration must be balanced by a finding that a meaningful relationship with the father, providing it is safe to do so, would likely assist the children in their future development. The complexities of the family are manifest and the dynamics are difficult to manage however, the paramount consideration is the children’s best interests and I consider that the father’s time with the children should resume initially on a supervised basis by either the paternal grandmother or another member of the father’s family. Supervision should continue for a period of nine months and thereafter there should be a graduated increase such that after a period of twelve months, the children will spend time with the father each alternate weekend from Friday through to Monday and half of school holidays.

Ratio Decidendi

Legal Principle Established

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