Berne & Santo
[2021] FedCFamC1F 354
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Berne & Santo [2021] FedCFamC1F 354
File number(s): NCC 1930 of 2020 Judgment of: CLEARY J Date of judgment: 12 November 2021 Catchwords: FAMILY LAW – CHILDREN – Where various sets of orders have been made for residence of the child – Where the child is a female and now identifies as a male – Where the child has been injuring himself and has been hospitalised – Where there is an AVO in place mutually for the protection of the child from the mother and for the mother from the child – Where the child is in a precarious emotional state – Where there is family violence and undermining of relationships likely to be the cause of the child’s erratic, self-destructive and violent behaviour – Where there may be mental illness – Best interests of child – Ordered the child to live with his adult half-brother and for him to have parental responsibility on an interim basis. Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 12 November 2021 Place: Newcastle Solicitor for the Applicant: Attitude Lawyers Solicitor for the First Respondent: Winder Lawyers Solicitor for the Second Applicant: Self-Representing Solicitor for the Independent Children's Lawyer: Gillard Family Lawyers ORDERS
NCC 1930 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BERNE
ApplicantAND: MR SANTO
First RespondentMR BERNE
Second RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CLEARY J
DATE OF ORDER:
12 NOVEMBER 2021
BY CONSENT, THE COURT ORDERS THAT:
1.Mr Santo be joined as a party to the proceedings and is classified as the Second Respondent henceforth.
PENDING FURTHER ORDER, THE COURT ORDERS:
2.All prior parenting orders with respect to X (now known as “X”) born in 2007 be suspended.
3.That the Second Respondent, Mr Santo, have sole parental responsibility for X.
4.That X live with the Second Respondent.
5.That the mother shall spend time with X on each alternate Sunday from 9.00 am to 5.00 pm and at such other or additional times which may be agreed between the mother and the Second Respondent, commencing Sunday 14 November 2021.
6.That the father shall spend time with X on each alternate Saturday from 9.00 am to 5.00 pm and at such other or additional times which may be agreed between the father and the Second Respondent, commencing Saturday 20 November 2021.
7.In the event that X arrives at the home of the mother or the father on a day or at a time which has not been agreed to in advance between the parents and the Second Respondent, then the parent shall notify the Second Respondent of X’s arrival and co-operate in every way with the Second Respondent for arrangements for X to be returned to the care of the Second Respondent immediately.
8.Pursuant to s 68B of the Family Law Act, the First Respondent father is restrained from making derogatory, critical and mean-spirited remarks about the Second Respondent to, or in the presence or hearing of, X, and further, shall remove X from the presence of any third party speaking of the Second Respondent in that way.
9.The Independent Children’s Lawyer shall provide a copy of these orders to the principal of B School.
10.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth) the parties and the child, shall attend upon Ms D, Court Child Expert of the Federal Circuit and Family Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a Family Report NOTING it is anticipated the interviews will take place on Wednesday 9 March 2022.
11.This matter is adjourned to 9.30 am on Friday 29 April 2022 following the release of the Family Report.
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 Berne & Santo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
ORAL REASONS FOR JUDGMENT
CLEARY J
This is a parenting dispute with respect to one child, X, born in 2007. X is 14 and a half years of age and has taken up a male name and prefers to be thought of as male.
The parties are the mother, the father, and an adult son of the mother’s. He is Mr Santo, aged 24 years.
The parties have been separated since 2009 and there is no need to repeat the history of conflict which has followed, at this point. Various sets of orders have been made. At first for the child to live with the mother and spend time with the father. The residence arrangements were reversed and in June last year there was a further application by the mother for her child to return to live with her.
On 1 July 2021, the father was found to have contravened orders that had been made on the 4 December 2020 on five separate occasions.
X has been injuring himself usually by cutting since 2019. Most recently on 12 October 2021, X was hospitalised due to self-harming. The mother obtained mental health referral to C Health Services.
On 2 November 2021, there was a violent incident in the mother’s home where her finger were broken.
On 6 November 2021 X was chasing the mother and to use her words “around the house with a knife”. X was said to be reacting to being told to take medication.
The mother felt frightened and told X to leave. He did and went to the home of the father’s, to the father.
There is now an Apprehended Violence Order in place mutually for X from the mother and for the mother from X.
There is no doubt that X is in a precarious emotional state. The family violence and undermining of relationships that he has experienced is most likely the cause of his erratic, self-destructive, and violent behaviour. There may be current mental illness; that is unknown.
Mr Santo, the second respondent, has a longstanding and affectionate relationship with his half-brother, X. He is willing to take on parental responsibility for X at least on an interim basis and for X to live with him and his partner.
Mr Santo is in a position to ensure X goes to school and will be attentive to his mental health. Compliance by all parties with the orders now to be pronounced may provide a greater level of stability for X.
Orders are made accordingly.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the oral Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 12 November 2021
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