Bernardi & Sarlo
[2023] FedCFamC1F 506
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bernardi & Sarlo [2023] FedCFamC1F 506
File number(s): BRC 2463 of 2021 Judgment of: BAUMANN J Date of judgment: 6 April 2023 Catchwords: FAMILY LAW – CHILDREN – With whom the children shall live – Where there are serious criminal charges that the father confronts which have yet to be determined by a State Court – Where the father has failed to appear before the Court – Final orders made in accordance with the proposed orders sought by the mother and the Independent Children’s Lawyer Legislation: Australian Passport Act 2005 (Cth) s 11
Family Law Act 1975 (Cth)
Cases cited: Vallans & Vallans (2019) 60 Fam LR 193 Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 6 April 2023 Place: Brisbane Solicitor for the Applicant: KLM Solicitors Solicitor for the Respondent: Litigant in person (did not participate) ORDERS
BRC 2463 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BERNARDI
Applicant
AND: MR SARLO
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
6 APRIL 2023
THE COURT ORDERS ON A FINAL BASIS:
1.That the mother have sole parental responsibility in respect of all major long term issues for the children, X born 2011, Y born 2012 and Z born 2018 (“the children”).
2.That the children live with the mother.
3.That the children spend no time and have no communication with the father.
4.That pursuant to s 11 of the Australian Passport Act 2005 (Cth), the mother be permitted to obtain a passport for the children in the exercise of her sole parental responsibility without the need for the father’s consent or signature.
5.That the children be permitted to leave the Commonwealth of Australia with the mother and travel overseas for a holiday of no longer than one (1) month.
6.That the Independent Children’s Lawyer be discharged.
IT IS NOTED:
A.That in the event the father is acquitted of all charges relating to the child Y, and if the father wishes to pursue and commence a new application to spend time with the children, the matter should be directed to the honourable Justice Baumann quickly so the issue of Rice & Asplund (1979) FLC 90-725 can be considered and the further progress of any new application can be designed.
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 the pseudonym Bernardi & Sarlo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
The Applicant mother, Ms Bernardi, currently aged 37 years, and the Respondent father, Mr Sarlo, currently aged 39 years, had a somewhat chaotic relationship from the time that they commenced cohabitation in 2008 when they were both in their 20s.
The fact that it was a somewhat unusual relationship is reflected by the evidence which is that having cohabitated in 2008, they separated in 2014, at which stage they had two children, X, who was born in 2011, and Y, who was born in 2012, who are now 12 and 10 years respectively, and, after reconciliation, they again finally separated 1 January 2018.
The mother claims and the father denies that their third child, Z, born 2018, who is now four years of age, was the product of a sexual assault/rape of the mother by the father. Nonetheless it appears, on the evidence, that all three children’s births were registered identifying not only the mother and father, but also their adopted surname, being that of the father.
It seems that there were other significant difficulties in the relationship after final separation in January 2018. The most significant, it seems to me, being a notification to the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) arising from disclosures by the child, Y, in mid-2020, that she had been sexually abused by her father. This is an allegation the father strenuously denies. The evidence is that he was charged in mid-2020 with offences relating to Y, but noting that the police had undertaken an interview with the child over one month earlier. I am told that not only is the father facing charges relating to indecent dealing with his daughter, but also facing a further charge in relation to an older unrelated child.
Sadly, really, this case has been delayed because the criminal charges which the father is facing have not been completed by the criminal courts and whilst I accept that the criminal justice system in most states, including Queensland, suffered delays because of the inability to panel juries during Covid-19, it is a sad reality of this case that the serious charges against the father have still not been dealt with by the State Courts. Despite many occasions – at least two that I am aware of – of the father being directed to file an affidavit setting out aspects of his criminal proceedings, he has failed to do so.
After separation and after the disclosures made by Y, there were proceedings in a State Court whereby a Domestic Violence Order was made against the father naming the mother and the children, it seems to me, as aggrieved persons. That Domestic Violence Order now expires in mid-2026 (after an extension).
The mother brought an Application on 24 February 2021 in the Federal Circuit Court of Australia (as it was then known) seeking, inter alia, that the children live with her and that there be an order that no time occur between the children and the father. For context, I accept it likely that the father is on bail conditions which would have prevented him spending time with the children in any event.
Nonetheless, on 18 March 2021, the father, as a self-represented litigant, filed the Response, in which as a final order he sought unsupervised time, but was sensible enough to seek an order for supervised time only in his Response.
The matter came before Judge Tonkin in the Federal Circuit Court of Australia on 22 March 2021, at which time her Honour made an order that the children live with the mother and that there be no time spent by the children with the father; to transfer the matter to the Family Court of Australia (as it was then known) with a view that it be designated a Magellan matter.
On 28 April 2021, a Registrar designated the matter a Magellan matter and appointed an Independent Children’s Lawyer (“ICL”). Ms Sheehy, an experienced, highly competent ICL, has been in that role since that appointment.
As a result of the matter being a Magellan matter and in accordance with the usual protocols of the Department, a Magellan report was produced by the Department and is before the Court and today I mark as Exhibit 1 (dated 25 May 2021). It reveals a number of things, not the least being that the mother and the father have been the subject of overview by the Department, or at least the Department is aware of the family because of notifications made to the Department as long ago as 2013.
I have read the report, which speaks for itself, and identifies on its face that the Department had notifications that suggested the mother was being overborne by the father, who was aggressive and violent towards her. I note, for example, that in early 2016 the Department expressed an outcome from a child protection notification that the subject children (at that stage, just Y and X) had not suffered harm, nor was there any risk of suffering harm of a significant detriment and nature in the future if in the mother’s care. It was assessed that the subject children had a parent, Ms Bernardi, willing and able to meet their care and protection needs at that point in time. At that point in time, the parties were separate.
Post reconciliation in late 2016, however, the family came to the attention of the Department again and some concerns were raised about the father. For example, in mid-2018, which is after the final separation, the Department’s assessment says:
It was assessed that [Y] and [X] were not at significant risk of emotional or physical harm whilst in the care of their primary carer, [Ms Bernardi]. It was noted, however, that the children were at significant risk of future harm in [Mr Sarlo’s] care and that [Mr Sarlo] was not a parent willing and able to meet the care and protection needs of the children at that time. It was further assessed that the subject children were not at significant risk of future harm in [Ms Bernardi’s] care and that [Ms Bernardi] was identified at a parent who was willing and able to meet the children’s care and protection needs at that time.
Furthermore, in late 2018, the Department confirmed their concerns about the father’s behaviour saying, in effect:
It was further assessed that [Mr Sarlo] had continued to attempt to coerce [Ms Bernardi] into allowing him to come to the home to visit the children. Given [Ms Bernardi’s] vulnerability to coercion by [Mr Sarlo], it was assessed that the least intrusive interventions to protect the children is to work with [Ms Bernardi] under an intervention with parenting arrangement.
Ongoing intervention with the mother and the three children then took place between late 2018 and late 2019. After the notification of the alleged sexual abuse of the child, Y, by the father, the Department, not surprisingly, had some concerns about the father having any contact with the child as the Magellan report identifies.
I refer to the Magellan report, because this is a matter where I had no family report. I am not critical of the ICL in not spending public money through Legal Aid Queensland and obtaining a family report in this case at this stage. Frankly, the Magellan report speaks for itself. The fact that there are serious criminal charges that the father confronts which have yet to be determined means that the Court should take an approach which is cautious, in the best interests of the children at this stage.
In that regard, I am satisfied with the submissions of the ICL today that the father is aware that the matter is before the Court today. She says from the bar table on 23 March 2023, she received an email from the father and had a subsequent telephone conversation at which time he made it clear that his criminal proceedings were still on foot and that he contests the order which the ICL and the mother were effectively seeking. I am satisfied from what Ms Sheehy has told the Court that on or about 4 April 2023, she emailed the father advising him that he should appear today. He has failed to do so.
The orders which are proposed contain three orders that had the effect of changing the surname of the children from “[Sarlo]” to “[Bernardi]”. I made it clear that in the absence of a proper application and any evidence to support such a significant order for children, I was not prepared to make that order. In the circumstances, the ICL and Ms Bell, who appears for the mother, did not press for that order to be made.
With one small amendment, I propose to make the orders that the mother seeks in relation to sole parental responsibility, for the children to live with her and spend no time with the father as set out at the commencement of these Reasons. I am satisfied such orders are in the best interests of the children at this time.
Sensibly and reflective of what comments I made at the callover of the matters on 9 March 2023, the order will have a notation that in the event that the father is acquitted of all charges relating to the child, Y, then if the father wishes to pursue and commence a new application to spend time with the children, then, ultimately, the matter should be directed to the Honourable Justice Baumann quickly so that the issue of Rice & Asplund (1979) FLC 90-725 can be considered and the further progress of any new application can be designed.
Granting to the mother sole parental responsibility should only be done on the principled basis; (see the comments of Kent J in Vallans & Vallans (2019) 60 Fam LR 193). I am satisfied in circumstances where the father has spent no time with the children because of his criminal proceedings since mid-2020 and even before that sporadic time on the evidence; where the mother does not feel comfortable for good and sensible reasons to communicate with the father; where the father has made no contributions to long-term decision-making for the children since at least final separation (now some five years ago); and where there is family violence in this case which rebuts the presumption in any event, it is appropriate for the mother to have sole parental responsibility for major long-term decision-making.
For the reasons which I give I make the orders which are in the best interests of the children.
I discharge the ICL.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 23 June 2023
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