Anelli and Sault (No. 3)

[2018] FamCA 323

FAMILY COURT OF AUSTRALIA

ANELLI & SAULT (NO. 3) [2018] FamCA 323

FAMILY LAW – CHILDREN – Final parenting orders – Children’s views – unopposed by father conditional on mother abandoning her pending application for costs.

APPLICANT: Mr Anelli

RESPONDENT: Ms Sault

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms M Pandeli

FILE NUMBER: MLC 9855 of 2016

DATE DELIVERED: 1 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 1 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Trapski Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Pandeli

Orders

IT IS ORDERED THAT:

1.The mother have sole parental responsibility for the care welfare and development of the children B born … 2006 and C born … 2007 (“the children”).

2.The children live with the mother.

3.The pending parenting proceedings be and are hereby dismissed NOTING THAT the father has no enforceable entitlement to spend time with the children or to communicate with the children.

4.There be no order as to costs.

5.The appointment of the independent children’s lawyer be and is hereby discharged.

6.That the Subpoenaed Documents Clerk of this Registry return any documents produced on subpoena to the owner within 14 days.

7.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy be provided to the parties.

8.The proceedings this day be transcribed and placed on the Court file.

9.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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 Anelli & Sault (No. 3) 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 MELBOURNE

FILE NUMBER: MLC 9855 of 2016

Mr Anelli

Applicant

And

Ms Sault

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

ex-tempore

1. This matter comes before me as what appears to be the final stanza of parenting proceedings between the mother and the father, concerning the children B, who is 11 years old, nearly 12, and C, who is 10 years old, nearly 11.  I will not outline all of the recent history of the matter.  Suffice it to say there was a parenting application that came before the Senior Registrar who determined that the father ought not see the children prior to the final hearing.  The Senior Registrar ordered that the father and the mother could make an application to expedite the allocation of the final hearing.  Neither did so.  The father reviewed that decision.  The review decision came before me.  It failed.  The mother applied for costs.

2. Midway through the costs application on 24 April 2018, the father stated that he was prepared not to participate in the proceedings any longer and would forego any application for parenting orders in relation to the children conditional upon the mother relinquishing any entitlement to apply for costs arising out of the failed review procedure.  Unhappily, the mother was not in Court to provide instructions.  Ultimately the instructions were given that she would forego costs, on the basis described by the father.

3. In the interim, the father said that he also wanted the children to be seen by the independent children’s lawyer to confirm that they did not wish to see him.  The matter was adjourned to 27 April 2018 and then to today.  This carried with it a risk, of course, that the children would be interviewed unnecessarily, because if they said that they did want to see the father, they would then remain the subject of Court proceedings.  However, had they said that they wanted to see the father, then that would have, in my view, been justification still for having them undergo some further procedure down the track. 

4. Section 68L(5)(b) provides that the independent children’s lawyer must ensure any views expressed by the children are fully put before the Court.

5. The independent children’s lawyer saw both children in the company of a family consultant this afternoon.  They have confirmed their consistent view in these proceedings, that they do not want to see the father. 

6. Everyone is now in Court.  I will order, consistently with our previous discussions, that the father will have no further input by way of communication, time or parental responsibility of the children and finalise the proceedings.  I do so recognising that it is a final parenting order.  I am satisfied that it is a final parenting order which is an unhappy outcome for the father, but one that is consistent with the best interests of the children.

7. I have earlier delivered reasons in the review application, which traverse the primary considerations and the additional considerations, in some detail, although not in the context of a final hearing.  I will not repeat those matters here, but my view is that all of what I said in those reasons applies in this determination.  I am mindful that this order precludes a relationship between the children and the father’s family and his new child and his child yet to be born.  I am satisfied that the presumption of equal shared parental responsibility provide in s 61DA(1) is rebutted.  To make an order in those terms would not be in the best interests of either child by virtue of the unbridled animosity which the father bears to the mother and the impossibility of the parents being able to make decisions jointly or to consult about the major long-term decisions for the children.

8. It is apparent that the father is upset by the outcome, although it appears that he accepts it.  He has, on previous occasions, sought to blame other people for the predicament in which he finds himself – or, more particularly, he perceives his children find themselves – and those other people have usually been the Court, as an institution, or the mother.  The father’s disinclination to accept responsibility himself and his inability for introspection is a significant feature of this case.

9. I am satisfied that there are significant reasons why any orders for face to face time would have to be crafted so as to protect the children from physical or emotional harm, were they to have an ongoing relationship with the father.  I make no firm findings in that respect, because the parties have chosen, at this point, not to adduce evidence in detail.  However, based on the evidence I do have, I could not be satisfied, at this stage, that there are circumstances which would render communication or face to face time with the father safe for the children emotionally.

10. I am satisfied, at this stage, that it is not consistent with the children’s best interests to have a meaningful relationship with the father.  I do not suggest that the relationship had to be the optimal relationship.  Meaningful, in my view, is something less than that.  However, a meaningful relationship between the children and the father with ongoing communication and face to face interaction would, I think, carry with it an unacceptable risk of emotional harm for the children.  This is having regard to their need to have a reliable parent and not to have their relationship with that parent undermined.

11. As indicated I am satisfied that the Order I make is consistent with the best interests of the children. 

12. Finally, I will order a transcript of the comments made by the independent children’s lawyer to the Court following her interview with the children.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 1 May 2018.

Associate: 

Date:  14 May 2018