BRUCE & DEL PIERO

[2015] FamCA 291

FAMILY COURT OF AUSTRALIA

BRUCE & DEL PIERO [2015] FamCA 291

FAMILY LAW – CHILDREN – Final orders by consent – Application for orders to be made by consent where allegations of abuse have been made in the proceedings – Where the proposed consent orders are consistent with the recommendations of the family report writer.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT: Ms Bruce

RESPONDENT:	Mr Del Piero
INDEPENDENT CHILDREN’S LAWYER:	Ms Fotheringham

FILE NUMBER: BRC 83 of 2010

DATE DELIVERED: 21 April 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 21 April 2015

REPRESENTATIOGN

SOLICITOR FOR THE APPLICANT: Rosen Lawyers

FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Selfridge

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

it is ordered that:

1. The hearing of these proceedings listed for three (3) days commencing on 21 April 2015 be vacated.

IT IS ORDERED BY CONSENT THAT:

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS FURTHER ORDERED THAT:

1. Pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth), the parties have leave to publish the following:

   (a)          the Reasons for Judgment of the Honourable Justice Kent   delivered today;

   (b)          the orders made today; and

   (c)          the Reasons for Judgment of the Honourable Justice Kent   delivered on 18 December 2014

   to any relevant authority, including but not limited to, the child’s school, the                  Department of Communities, Child Safety and Disability Services and the       Queensland Police Service.

1. All outstanding applications be otherwise dismissed and removed from the    pending cases list.

2. Pursuant to s 62B and s 65DA(2), the particulars of 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 to adjust to and            comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS DIRECTED THAT:

1. The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

IT IS ORDERED BY CONSENT:-

1. That the Father shall have sole parental responsibility for the child, B born … 2006 (“the child”) including but not limited to the following major long term decision issues:

   (a)       Choice of School;

   (b)       Attendance upon specialist medical practitioners;

   (c)       Attendance upon counsellors;

   (d)       Enrolment in extracurricular activities, such as sporting clubs;

   albeit:

   (a)       with respect to any such decision to be made, the Father shall           communicate the issue to be decided upon to the Mother

   (b)       the Mother to have the reasonable opportunity to advise the Father of        her views; and

   (c)       the Father shall take into account the Mother’s views before making the     decision.

2. The Father shall keep the Mother notified in advance of any relevant medical appointments for the child and that she be at liberty to attend such appointments.

3. That the child shall live with the Father.

4. That the child shall spend time with the Mother as agreed between the parties in writing but failing agreement as may be Ordered by the Court but shall include:-

   FOR FOUR WEEKS

   a)Each Sunday from 9 am until 5 pm commencing 10th of May 2015.

   FOR THE FOLLOWING SIX WEEKS

   b)Each alternate weekend from 5 pm Saturday until 5 pm Sunday and from after school Monday until 6pm the same day on the weekend that the child is not in the care of the Mother.

   FROM THE COMMENCEMENT OF TERM THREE 2015

   c)Each alternate weekend from the conclusion of the child’s Soccer game on Saturday morning or from 9am Saturday morning until 5 pm Sunday and from after school Monday until 6pm the same day on the weekend that the child is not in the care of the Mother.

   FROM THE COMMENCEMENT OF TERM FOUR 2015

   d)Each alternate weekend from after school Friday until 5 pm Sunday and from after school Monday until 6pm the same day on the weekend that the child is not in the care of the Mother.

   FROM THE COMMENCEMENT OF TERM ONE 2016

   e)Each alternate weekend from after school on Friday until the commencement of school on Monday and from after school Monday until 6pm the same day on the weekend that the child is not in the care of the Mother.

   COMMENCING EASTER SCHOOL HOLIDAYS 2016

   f)One half of each school holiday period with the Mother having the first half in 2016 and thereafter in alternate years and the Father having the second half in 2016 and thereafter in alternate years. 

   g)Christmas School holiday period shall consist of alternating two week periods with the mother having the first two weeks and thereafter in alternate years and the Father having the second two weeks and thereafter in alternate years.

   h)The child shall spend time with the Mother from 9am on Christmas Eve until 2pm Christmas Day in 2015 and from 2pm Christmas Day to 5pm Boxing Day in alternate year.

   i)That if Father’s Day falls on a weekend when the child is in the Mother’s care, then the child shall be delivered to the Father at 9am on Father’s Day and returned to the Mother at 5 pm on Father’s Day.

   j)That if Mother’s Day falls on a weekend when the child is not with the Mother, then the child shall be delivered to the Mother at 9am on Mother’s Day and returned to the Father at 5 pm on Mother’s Day.

   k)That if the Mother's Birthday falls on a weekend when the child is not with the Mother, the child shall be delivered to the Mother at 9:00am on the Mother's Birthday and shall be returned to the Father at 5 pm. If the Mothers Birthday falls on a weekday that the child is not with the Mother, then the Mother can collect the child from school and return him to the Father’s care at 7.00pm.

   l)That if the Father's Birthday falls on a weekend when the child is not with the Father, the child shall be delivered to the Father at 9:00am on the Father's Birthday and shall be returned to the Mother at 5pm. If the Father’s Birthday falls on a weekday when the child is not with the Father, then the Father can collect the child from after school and return him to the Mother at 7.00pm.

   m)On the child’s birthday, if the birthday falls during the week, from after school until 5:30pm with the parent who does not have the child in his/her care and if the child’s birthday falls on a weekend, from 10:00am until 2:00pm with the parent who does not have the child in his/her care. 

5. The parties shall do all necessary things and execute all necessary documents forthwith to enable the child B to obtain Australian Passport and/or renew an Australian Passport provided should either party refuse to do any necessary thing or execute any necessary document then the Registrar of the this Court pursuant to Section 106A of the Family Law Act is authorised to do that thing or execute that document. 

6. That the Mother return the child’s passport as soon as possible and that the Father have possession of the passport at all times except when the mother requires the child’s passport for travel purposes.

7. That the Father/Mother be permitted to remove the child from the Commonwealth of Australia to enable the Father/Mother to take the child overseas provided that the child is not taken to a country which is not a signatory to the Hague Convention and is not listed adversely on the “Australian Smart Traveller Do Not Travel Advice” for a period of not exceeding four weeks. 

8. In the event that either parent wishes to travel outside the Commonwealth of Australia with the child that parent shall provide to the other parent, not less than 42 days’ notice in writing, as to where the child will be travelling, length of time the child will be away, the care arrangements for the child whilst they are away and contact details during the time that the child is away.

1. In the event that the Mother intends to travel overseas with the child, the Father shall deliver to the Mother the passport of the child not less than 28 days prior to the date of departure. The child’s passport is to be returned to the father immediately upon the child’s return.

2. The parent with whom the child is not living may telephone the child every third day between 5.00 pm and 6.00 pm and the parent with whom the child is living shall ensure that the child has privacy and is not distracted either by person or other electronic means and at all other reasonable times.

3. That handover of the child, where it does not occur at school, shall occur at McDonalds Family Restaurant at Suburb C.  

4. That the child’s general medical practitioner shall be Dr D of Suburb C Central Medical Centre and the parties shall ensure that the child attends upon Dr D as required, other than emergencies. 

5. That the Mother shall only seek medical attention for the child in emergencies, such as requiring an Ambulance, or in the event where she is unable to contact the Father following reasonable attempts to do so.

6. That these Orders shall authorise any educational institution to which the child attends to provide to the Mother/Father, at the Mother’s/Father’s expense, all reasonable requests for information, including but not limited to, school reports, newsletters, and important school notices.

7. That these Orders shall authorise any health professional who attends to the child to provide to the Mother/Father, at the Mother's/Father's expense, all reasonable requests for information by the Mother/Father as to the child.

8. That each parent inform the other parent as soon as reasonably practical, of any serious illness or hospitalisation of the child.

9. That each party shall keep the other informed as to their current residential address, contact telephone number, email address (if any), and facsimile transmission number (if any).  They shall notify any change in the same within forty-eight (48) hours of the change.

10. That neither party shall denigrate the other, nor permit any other person to do so, in the presence or hearing of the child and each parent shall remove the child from any third party that denigrates either parent or any member of their household.

11. That the Mother cease her documenting behaviours i.e. Diary entries and recordings.

12. That the Mother continue working with her counsellor and that she share with that counsellor the content of both Family Reports from Psychologist Mr E and the Report of Dr F.

13. That the child attend his Paternal Grandmother, Ms G Del Piero’s wedding ceremony on Sunday 3rd May 2015. The Mother shall alternatively have contact on Saturday 2nd of May 2015 from 9am until 5pm.

14. That the child attend the Father’s wedding on the weekend of October 31st 2015. The Mother shall alternatively have contact with the child on either the weekend proceeding or following should the child not be in the Father’s care on the weekend of October 31st 2015

15. That the Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brighton & De Caria Angelis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 83 of 2010

Ms Bruce

Applicant

And

Mr Del Piero

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The relevant background to these parenting proceedings was set out by me in reasons for judgment I delivered on 18 December 2014.  To the extent that it is necessary to do so, I incorporate the reasons for judgment I delivered on 18 December 2014 as part of these reasons for judgment. 

2. In short, the child the subject of these proceedings, B born in 2006 (“the child”), has been exposed to significant parental conflict, essentially ever since his birth.  Of most significance in the lead‑up to this trial were allegations repeatedly made by the mother to relevant authorities essentially asserting that the child was at an unacceptable risk of sexual abuse in the unsupervised care of the father.  There were associated allegations of potential physical abuse in respect of the father and his current partner. 

3. As is recorded in my earlier reasons for judgment dated 18 December 2014, there has been a history of the mother making allegations to relevant authorities but then retracting those allegations.  She likewise did that on 18 December 2014 as is recorded in my reasons for judgment, and I refer in particular to what I observed in [36] of those reasons. 

4. Also as is noted in [42] of those reasons, on 20 May 2013 the mother contacted the officer of the Child Safety Services of the Department of Communities, Child Safety and Disability Services (“the Department”) to advise that having spoken to the child about disclosures he had then made, the child she said had, admitted that he made the allegations up because he did not want to go to his father’s home. 

5. Notwithstanding that, only four days later on 24 May 2013, there was a further notification to the Department.  That notification was apparently made by the organisation known as I Org.  The mother submitted to me in open Court on 18 December 2014 that she had told the relevant person at I Org, a person she identified by the name of Ms H, to the effect that the child had retracted his allegations in the sense of confirming that he had made them up only four days earlier. 

6. As was confirmed with the mother in open Court in my exchanges with her on 18 December 2014, the mother’s submissions to me on the day in terms of the interim orders to be made included orders she proposed for unsupervised overnight time for the child to spend with his father.  The mother submitted to me on that occasion that she had realised that she had recognised the error of her ways and sought to have a different approach in future in dealing with what she said were statements or allegations raised by the child. 

7. As is reflected in the reasons for judgment I delivered in the interim hearing the Court had the advantage of significant evidence, unlike many interim hearings.  That evidence included substantial subpoenaed material from relevant departments and the police and the Court also had expert opinions and, in particular, the report of Mr E psychologist.  The lead-up to the trial that was to commence today included further evidence being gathered and, in particular, a further report from Mr E as well as a report of a psychiatrist, Dr F. 

8. The concerning matter arising since the orders made on 18 December 2014 was that it seemed that the mother had again resiled from her then stated position and was, given the nature of the material she had filed for the purpose of the trial, again advancing a case to the effect that the father did in fact pose some unacceptable risk of sexual abuse to the child.  In fairness to the mother, some of that material at least was provided prior to her having had the opportunity to read the updated report of Mr E and perhaps also the report of Dr F.  Also, it may be observed, the mother filed material when representing herself whereas today she has the advantage of being represented by her solicitor, Mr Rosen, a very experienced solicitor in this jurisdiction. 

9. At the outset of the hearing today in terms of identifying the mother’s current position, Mr Rosen confirmed on her behalf that she recognised that she had a past history of significant hypersensitivity to statements that might be made by the child and as to “stories” that the child might tell her.  It was then confirmed by Mr Rosen that the mother no longer pursued, or would not pursue in the final trial of these proceedings, a case to the effect that the father posed any unacceptable risk to the child if the child spent unsupervised time in the father’s care. 

10. In the result, the parties, with the assistance of the Independent Children’s Lawyer, have been able to negotiate final parenting orders by way of consent.  Those orders provide, relevantly, for the father to have sole parental responsibility for the child, albeit with a provision for him to discuss decision-making with the mother prior to determining a decision as to a long‑term issue; and otherwise provide for the child to live with the father and spend time with the mother on a graduating basis, culminating in periods of effectively alternate weekends from after school Friday until the commencement of school on Monday as well as a period of time in the other week as well as holiday time and special occasion time. 

11. In consenting to those orders with the assistance of her legal advisor and in circumstances where the child’s interests are independently represented in these proceedings by an Independent Children’s Lawyer (“the ICL”) appointed for that purpose pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”), the mother demonstrates her conviction that she does not persist in the pattern historically of her pursuit of the allegations referred to.

12. In that sense orders, albeit made by consent, as it seems to me, constitute what is known in the law as a res judicata with respect to the issues joined as between the parties.  By way of explanation of that to the father, who represents himself, where res judicata applies, the parties are estopped from subsequently advancing the same issues or allegations that existed prior to the making of the consent order, in further contested proceedings.  There are very limited exceptions to that principle not applying. 

13. Rule 10.15A of the Family Law Rules 2004, in particular subsection (2), applies in circumstances where there is an application for orders to be made by consent where allegations of abuse have been made in the proceedings. Mr Rosen has addressed that by adoption of the statements I made to him in the course of exchanges with respect to the discussion of that rule during submissions, essentially confirming on behalf of the mother the matters that I have already referred to insofar as her desisting from pursuit of any such allegations. In respect of the father, he confirms that what he would describe as historical emotional abuse by the mother of the child in by advancing the allegations and making notifications, is addressed by the final orders to which the parties have now consented, in terms of the future.

14. I have, because this is a trial, taken the opportunity to read the updated reports to which I have referred and, more generally, the evidence for trial.  Without recounting the matters contained in the expert reports, it seems to me that the proposed final orders by consent can be described as in the best interests of the child. 

15. Mr E had proposed in his most recent report several alternatives in terms of final orders that might be made, partly dependent upon the mother’s position as at the trial.  That is, if the mother was persisting in her allegations, Mr E expressed the opinion to the effect that there probably could not be any legitimate change, in terms of the child’s best interests, to the interim orders that currently operate, which see the mother spending limited time with the child on a supervised basis, albeit supervised by her own mother.  Alternatively, Mr E proposed that if the mother resiled from the allegations and was genuine in that stance, that graduated orders for time could be made, leading to an expansion of the mother’s time with the child.

16. Whilst Mr E’s opinions and his report have not been the subject of cross‑examination and will not be in circumstances where the parties have now reached consent, clearly the opinions of an independent expert support, to some extent, the level of satisfaction the Court can have as to proposed consent orders meeting the child’s best interests.  Likewise, the support of the orders by the ICL can be also seen in that context. 

1. I am comfortably satisfied then that the proposed consent orders meet the child’s best interests and ought be made and I make orders in terms of the draft orders that have been signed by the parties, initialled by me and placed with the file, save only in respect of the amendment of paragraph 1 to include the word “parental” between “sole” and “responsibility” in the first line; to make proposed draft paragraph 10 as paragraph 3, that is an order that the child live with the father; and that the current 3 becomes 4 in terms of its provisions for the time the child will spend with the mother; and the minor correction to what is subparagraph (m) of that paragraph to refer to the child’s birthday. 

2. Pursuant to s 121 of the Act, I authorise the parties to publish these reasons for judgment, together with the reasons for judgment delivered on 18 December 2014 and the orders made today to any relevant authority, by which I mean, if necessary, the child’s school, the Department of Communities, Child Safety and Disability Services and the Queensland Police Service. I order accordingly.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 21 April 2015.

Associate: 

Date:  21 April 2015