Benenetto and Benetto (No 2)

[2010] FamCA 471

FAMILY COURT OF AUSTRALIA

BENENETTO & BENETTO (NO. 2) [2010] FamCA 471

FAMILY LAW – CHILDREN – Interim – With whom children spend time – Allegations of violence

Family Law Act 1975 (Cth)

APPLICANT: Ms Benenetto

RESPONDENT: Mr Benenetto

FILE NUMBER: MLC 2495 of 2009

DATE DELIVERED: 1 June 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Phelan

SOLICITOR FOR THE APPLICANT: Bowlen Dunstan & Associates Pty

THE RESPONDENT: In person

Orders

1. That the hearing listed for the review of the orders relating to spousal maintenance on 22 June 2010 is vacated.

2. That the interim application filed 24 December 2009 is adjourned to 9.00am on 13 December 2010 for mention to determine its readiness for final hearing.

3. That the application in a case filed 11 May 2010 is adjourned to 9.00am on Friday 11 June 2010.

4. That the wife have leave to file and serve:

   (a)an amended response (being an amendment to the response filed 1 May 2009); and

   (b)to the extent that she is so advised, an amended application in a case (being an amendment to the application filed on 11 May 2010).

5. That the amending documents and a copy of these orders be served by post upon the registered office of K Pty Ltd by 4.00pm on 7 June 2010.

6. That the amending documents referred to be also served upon the husband.

7. That to the extent that K Pty Ltd wishes to participate and be heard, it file and serve any responding material by 4.00pm on Thursday 10 June 2010.

8. That the interim application filed 26 May 2010 be adjourned for the further hearing in the Senior Registrar’s list of cases on 6 July 2010 at 9.45am.

9. That until further order, paragraph 2 of the orders made on 3 September 2009 (being the husband’s time with the children E born … April 2000, T born … June 2003 and E born … September 2006) is suspended.

10. That the reasons this day be transcribed.

11. That the Department of Human Services be provided with a copy of these reasons in due course.

12. That pursuant to Section 68L(2) the Family Law Act 1975 the children J born … April 2000, T born … June 2003 and E born … September 2006 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

13. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

14. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Benenetto & Benenetto is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2495 of 2009

MS BENENETTO

Applicant

And

MR BENENETTO

Respondent

REASONS FOR JUDGMENT

1. On 26 May 2010, Ms Benenetto filed an application in a case, returnable in the judicial duty list today, seeking two important orders:

   a)That paragraph 2 of the interim orders made by consent by the court on 3 September 2009 be suspended, pending the husband providing a certificate as to the completion of a post-separation parenting course and an anger management course.

   b)That the husband be restrained from physically disciplining the children during times when they are in his care.

2. In addition to the application in a case, the wife also filed a notice of child abuse or family violence in which she repeated, as the basis of the abuse, the allegations to which I shall turn in a moment.  The allegations are set out in an affidavit that she filed also on 26 May.  A registrar was sufficiently concerned about the matter to direct that the application be served forthwith and granted the wife leave to file the matter in the list for hearing today.  The matter was otherwise in the list for a variety of things that are no longer relevant.

3. Mr Benenetto appeared today, albeit late, and indicated that he had a concern about the service of the documents because although the envelope in which documents were delivered was addressed to his home address, it was delivered to his work address.  Unfortunately, it appears that the formal application was not in the envelope although it transpires that the other documents were.  I stood the matter down for the husband to read the application and then, in a subsequent discussion, he indicated that he was going to file some affidavit material. 

4. It is now after 4.00 pm and the husband has told me that he has not done the affidavit material.  He has other matters on his mind.  The husband came here today for the purposes of filing a contravention application in relation to the orders to which I have just referred. 

5. In addition to the material to which I have just referred, I have drawn to the parties’ attention that there is a facsimile transmission from the Department of Human Services, dated 31 May 2010, confirming receipt of the notice of child abuse or family violence responding with a letter indicating that the department acknowledged the hearing on 1 June.  It said:

   Child Protection requires further time to prepare a response to the Family Court of Australia.  Child Protection are requesting a further four weeks to prepare for the request and to provide a final decision.

6. Ms Phelan of counsel appears for the wife.  She indicated to me that, presumably as a result of what occurred in the affidavit material, SOCAU has become involved and they have not yet interviewed the husband.  That is certainly consistent with what the husband says. The husband’s position is that he is happy for the matter to be adjourned, but there is no reason for the time between he and the children to be suspended.

7. The difficulty I have is also that the husband produced an email written to him by the wife on Thursday 27 May, which is the day after she filed her material, in which she said:

   I must repeat to you I am not seeking to remove your time with the children from you.  I will be seeking an order that you do not physically discipline the children, that is all.  I feel I have to do this.  The children are increasingly reluctant to spend time with you.  [J] has told me he feels uneasy when he is around you.  I find this sad.

8. She went on to make the following statement:

   The children will stay with me this weekend until the order can be put in place.  They need reassurance that there are not going to be repercussions about what has happened.  You can ring and talk to them on the telephone.  I am sure they would appreciate that.

9. To some extent, that seems to be a watering down of the position adopted in the applications, but it could equally be seen as consistent.  My concern here is the fact that the Department is now involved and, whilst there are protocols in place between the Department and the court, the court ultimately has to make a decision which is in the best interests of children.  In circumstances where the Department has the responsibility to investigate matters relating to the welfare of children, I think it is appropriate that I allow that to occur.  That is, particularly, also the case with SOCAU.

10. I refer back to the statement that I just mentioned by the wife, in which she indicated that the children needed reassurance that there were not going to be repercussions.  It is possible that the children may very well be aware of all these things happening.  That is certainly not in their interests. 

11. The affidavit material which brought the matter before the court is relatively simple.  It refers to the fact that in September 2009, orders were made that the children - who are aged 10, almost seven and three and a half - were to spend time with their father every second weekend from Friday night through to Monday morning.  There were further orders for time from 5.30 pm on Tuesday until the commencement of school on the Wednesday morning on each other week.

12. The affidavit said that on Saturday 15 May 2010 at 6.30 pm, the wife received a telephone call from 10 year old J, who was sobbing and said, “Mum, can you please come and get us.  Dad has whacked me and [T] five times and he is really angry.”  She said she asked J what had happened and he said, “Well, he found out that I had put a hole in his car seat with a multi-tool and then he belted me and he belted [T] as well.  But [T] didn’t do it, I did.”  She then said she asked if J was still at his father’s house and he said he was.  J stated that he was terrified of his father and that he was really angry with all of the children.

13. At that point according to the wife, J stopped talking, saying that his father was listening and she then referred to how she continued through with the conversation.  The wife then said the husband came on the telephone and she asked him what was happening and why the children wanted to return home.  She said he explained that J put a hole in the seat of the car and was lying through his teeth.  She told the husband that J had indicated that he was terrified.  The husband accused her of putting words into the children’s mouth and that she had an agenda.  He stated the children were in his care and that she was not allowed to collect them.  He then hung up the phone.

14. The affidavit then goes on to refer to what happened on the Monday following all of that.  The wife said she was getting ready for work.  There was a knock at the front door.  She was surprised to find the children on the doorstep.  She saw the husband drive off from the top of the driveway.  She said the boys (J and T) looked upset and she asked if they were okay.  She said both boys got teary and said that they had had a bad weekend.  The husband was supposed to drop the children off at their school and for the last two months, because of her work commitments, the husband had delivered the third child directly to the family day carer not far away from the boys’ school.

15. She then referred to the fact that the children were in uniform but had no lunch.  She then said J showed her a bruise on his chest.  He said his father tripped him over deliberately and he fell on to a triangular metal sign on the footpath.  He said it happened in the road outside the C Building at lunchtime on Saturday 15 May, and T later confirmed to the wife that he saw it happen.

16. The wife then made a doctor’s appointment for after school that day and she said the doctor observed bruising to the chest and bruising to J’s buttock area.  The doctor told the wife that she would need to report the matter to Child Protection.  She did that which precipitated what I now understand to be the involvement of the police and the Department.

17. There are other incidents about which the wife complained in her affidavit, going back to February, where she said that the husband called T a “shit-head”.  On 19 March she said he called J a “bitch”, and on the weekend of 2 April he called J a “fucking retard”.  She then referred to the fact that on 19 February, the husband placed the third child, E, into a cold shower to cure a tantrum and also that he would regularly lock the child in the laundry for up to 30 minutes at a time, or that he has shouted so loudly that she has wet herself.

18. Apart from the fact that I do not have any affidavit material from the husband and I am relying on the fact that he says from the bar table that he disputes all of this, I acknowledge that all of these allegations are yet to be tested.  But there is an issue associated with the protection of children that I have to consider as well, and that is particularly important in cases like this, where the matters are in the hands of the relevant state authorities.

19. The husband made a rather unusual statement from the bar table, confirming that J was smacked, and he queried what law there was that said that he couldn’t discipline his children.  In fact, importantly, he said there was nothing, unless I could point to something in the Family Law Act that said that he wasn’t allowed to do that.  He pointed also to the fact from the bar table, that the wife’s position was that she was the pot calling the kettle black because she did just the same sorts of things.

20. Ultimately, the court has to make a decision based upon the evidence that it has before it.  The husband says that is not evidence.  He says that these are simply allegations and there is no cold, hard facts.  Be that as it may, much will, no doubt, unfold over the ensuing weeks when the investigative bodies do their work.  It may very well be that the Department takes the view that whilst the children are not in their father’s care, there is no risk to them but they need to be aware of the fact that the wife wrote by email on 27 May, a statement which could be construed as her being prepared for the children to go back to their father, notwithstanding the allegations that had been made, even if he did undergo the courses that she had in mind.

21. I must say that concerns me and for that purpose, I propose to have these reasons made available for the Department to read.  It may very well be that the Department may want to intervene in these proceedings, although I am not going to invite them to do so.  But if they are sufficiently concerned, they may take an application in the appropriate Children’s Court jurisdiction.

22. The law in relation to children is straight forward.  It requires me to only make a decision which is in the best interests of children.  Children’s welfare is the paramount consideration.  All of the matters raised by the husband are obviously important, but the welfare of the children is the first point.  To assist me to decide what is best for the children, section 60CC sets out some very important considerations.  They are considerations but they are factors that need to be balanced against one another.

23. Section 60CC requires me to make sure that children are protected from family violence and, at this stage, the only evidence I have is that the allegations were made, repeated not only to the wife but it seems the husband concedes he did discipline the children.  Against that I have to factor in the right of the children to have a meaningful relationship with their father.  They can not have a meaningful relationship if they are frightened.  At this stage I do not know just exactly what the children’s position is, but the enquiries that are underway will, no doubt, start to find out some of those things.

24. There are a whole series of other factors in section 60CC, such as parenting responsibility and capacity of parents to provide for their children.  All of those matters are, at this stage, irrelevant, because of the fact that in September 2009, the parties conceded that each have the capacity to care for the children by asking the court to make the orders that it did. 

25. The primary objective today is to ensure the protection of children from harm, and for that reason I propose to suspend the orders until further order.

26. I propose, however, to bring the matter back into the Senior Registrar’s list in approximately four weeks time, so that the Department can do its work, as will SOCAU. 

27. It troubles me in this case that the children may not have a voice because of the fact that the parents seem to have different views about what is good for their own children.  On that basis I think it is an appropriate case for me to make an order that the children be separately represented on that occasion.  I will also ask that the Department of Human Services be aware that there will be an independent children's lawyer in this case and the reasons that I have just articulated can go to the independent children's lawyer as well.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  15 June 2010