CACCINI & CACCINI

[2018] FamCA 517

FAMILY COURT OF AUSTRALIA

CACCINI & CACCINI [2018] FamCA 517

FAMILY LAW – CHILDREN – INTERIM – Parenting proceedings – Older child expressing suicidal thoughts – Urgent reportable assessment – Case management.

APPLICANT: Mr Caccini

RESPONDENT: Ms Caccini

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Marika Ruzyla

FILE NUMBER: MLC 893 of 2016

DATE DELIVERED: 29 June 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 29 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Southey

SOLICITOR FOR THE APPLICANT: Ganci Huggett Lawyers

COUNSEL FOR THE RESPONDENT: Ms Theoharopoulou

SOLICITOR FOR THE RESPONDENT: MNG Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Tesoriero

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

IT IS ORDERED THAT

(1)This matter be adjourned for hearing on Thursday 19 July 2018 at 10.00 am (“the adjourned date”) for further consideration of any interim parenting orders and to receive the Parenting Issues Assessment by oral report AND IT IS NOTED that for the time being this matter will remain listed for final hearing to commence on 12 November 2018 in case the child X can be seen by Dr B comfortably prior to that date and the confirmation of the trial date will be determined on the adjourned date.

(2)Paragraph 3 of the Order made by consent on 29 February 2016 and paragraph 3 of the Order made by consent on 7 June 2016 be discharged.

(3)Pursuant to section 11F of the Family Law Act 1975 the parties to the proceedings attend an appointment/series of appointments with a family consultant of this Registry of the Court:-

a)      The husband is to attend at Level 5 of this Registry of the Court at 9.15 am on 13 July 2018;

b)     The wife attend at 11.00 am on 13 July 2018;

c)      The wife be responsible for bringing the children Y born … 2002 (“Y”) and X born … 2009 (“X”) (“the children”) to the Registry on the same date and time of her own appointment:

d)     The sequence and organisation of interviews is a matter within the sole discretion of the Family Consultant;

e)      A place be reserved in the child-minding section of the Court for the children and it be maintained for them throughout the day;

f)      The Family Consultant may appoint further interviews for the parties and the children; and

g)      It is requested that the Family Consultant prepare a Children and Parents Issues Assessment in writing and can deliver it orally on the adjourned date.

h)     The assessment include recommendations for parenting arrangements between the adjourned date and final hearing in February 2019.

(4)The Family Consultant be required to provide an oral report and for cross-examination on the adjourned date.

(5)The Family Consultant is authorised to contact any principal of any school that the children, or either of them, attend and any psychologist, psychiatrist, medical or health practitioner engaged in the treatment of the children, or either of them, and the Department of Health and Human Services.

IT IS FURTHER ORDERED BY CONSENT THAT:

(6)The father be and is hereby restrained from:-

a)      Taking the children or any or either of them to any doctor other than Dr C, other than in the event that the children or either of them suffers an illness or injury that requires immediate medical attention and Dr C is not available;

b)     Allowing any other person to communicate with or attend the children’s schools, mental health practitioners, allied health practitioners or medical practitioners engaged with the children or either of them.

(7)The father forthwith and within 7 days provide to each of the children’s school his contact details for the purpose of receiving relevant reports and information usually received by a parent.

(8)The parents forthwith and within 7 days do all acts and things necessary to immediately engage the child X with CAMHS Suburb D Campus, and follow all reasonable directions (including as to attendance) and referrals of the allocated case manager AND IT IS NOTED that the first appointment for X with Suburb D Campus is likely to be held in the week commencing 16 July 2018.

(9)Within 7 days each of the parties provide confirmation to the independent children’s lawyer that they have done all things necessary to enrol in a Parenting Orders Program (“POP”) at E Group in Suburb F. That the parents ensure that the children are taken to any appointments as directed by the allocated case worker of the POP program for family or individual counselling if recommended.

(10)The independent children’s lawyer be authorised to liaise with the case manager at E Group assigned to the family.

(11)Each of the parties be restrained by injunction from:-

a)      Changing the children’s school enrolment or enrolling the children in any other school;

b)     Discussing these proceedings, any allegations made therein and any correspondence exchanged between the parties, with or in the presence or hearing of the children or either of them;

c)      Belittling, denigrating, speaking in a demeaning or derogatory manner or in any way undermining the other party or any member of their household in the presence or hearing of the children or either of them;

d)     Verbally or physically abusing the children in any way or using  corporal punishment;

e)      Discussing any alternate proposal or schooling arrangements with the children or either of them;

or allowing any other person to do so.

IT IS FURTHER ORDERED BY THE COURT THAT:

(12)       The independent children’s lawyer be and is hereby authorised to provide copies of this Order, my reasons for decision and any family reports, assessments or documents from the Court file and any other documents or things which in her discretion considers ought be made available having regard to the best interests of the children or either of them to any treating practitioner, including the proper officers of Travancore campus of CAMHS and/or Dr B.

(13)Pursuant to section 62G(2) of the Family Law Act 1975 an updated family report be prepared.  For that purpose the parties and children Y born … 2002 (“Y”) and X born … 2009 (“X”) (“the children”) attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant.  Such report to be commenced not before 1 February 2019 and be released by not later than 1 March 2019 AND IT IS NOTED THAT an earlier report/child and parent issues assessment has been prepared by Dr G.

(14)       The family report deal with the following matters:-

a)      any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that may affect the weight that the court should place on those views;

b) the matters set out in s60CC of the Family Law Act;

c)      an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;

d)     an observation of each of the parties with the children (unless it appears to the Counsellor that such an observation taking place is not in the immediate best interests of the children);

e)      recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the children’s best interest to the greatest extent possible.

(15)       The parties be and are hereby restrained from making any complaint to a professional body or association concerning the conduct of any Single Expert engaged for the purpose of this proceeding, or permitting any other person to do so, without first obtaining leave of the Court. This injunction will remain in full force and effect following completion of the proceedings.

(16) That for the purpose of the s 11F and s 62G(2) assessments in this matter the family consultant be and is hereby authorised to have reference to all documents filed in these proceedings as well as to any documents produced on subpoenae and released for inspection by all parties.

(17)       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.

IT IS DIRECTED:

(18)       That the evidence of Dr G this day be transcribed and placed on the Court file.

(19)       My reasons for decision this day be transcribed and when settled placed on the Court file and provided to the parties.

AND IT IS NOTED that the Court will give consideration to vacating the hearing on 12 November 2018 on the adjourned date.

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 Caccini & Caccini 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 893 of 2016

Mr Caccini

Applicant

And

Ms Caccini

Respondent

And

INDEPENDENT CHILDREN’SLAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me following a family dispute resolution conference between the parties in parenting proceedings which concern their daughters Y, who is 15 years old and X who is nearly nine years old.  The matter came into my docket some time ago and I made directions for a final parenting hearing to commence before me on 12 November 2018.  That very late hearing date was a specific request of the parties’ practitioners.  I had been in a position to allocate a much earlier final hearing to the matter at that time.  I am no longer able to allocate a more urgent hearing now than the one already allocated in November 2018. 

2. The parties have not been able to resolve the differences between them in relation to parenting matters on a final basis but they did appear before me as ordered for a mention of the matter at 2.15 this afternoon with a suite of interim orders to which they agreed. 

ORDERS DELIVERED

1. This family have been embroiled in Family Law proceedings since February 2016.

2. An order was made by consent on 29 February 2016 allowing for the children to spend time with Mr Caccini each Sunday from 10.00 a.m. until 4.45 p.m. This time was to be supervised by one of three nominated people known to both parties. Changeovers were to occur at the Shopping Centre, Suburb H. It was also ordered that Dr J prepare a Family Report in this matter.

3. A further consent order was made on 24 May 2016 in which Ms Caccini proposed her niece, Ms K to be her Litigation Guardian in these proceedings.

4. On 7 June 2016, additional time was ordered for Mr Caccini to spend time with the children each alternate weekend from 10.00 a.m. Saturday until 5.00 p.m. Sunday for four occasions then progressing to 5.00 p.m. Friday until 5.00 p.m. Sunday. His time was to continue to be supervised, with an additional two supervisors nominated to sign undertakings. Mr Caccini was also ordered to administer all prescribed medication to the children and set up appropriate bedding. The parents were also instructed to utilise a communication book to inform each other of issues relating to the welfare of the children.

5. An Independent Children’s Lawyer was appointed on 31 October 2017.

6. Mr Tesoriero, counsel for the independent children’s lawyer, outlined some of the developments in this matter since it was last before me in May 2018. 

7. The family report has been undertaken and released.  It is the second family report in this matter.  It is a report dated 7 May 2018 and by Dr G, who is a family consultant attached to the registry and a qualified psychologist.  The recommendations in the report are as follows: -

   112.  That the children live primarily with [Ms Caccini].

   113.  That parental responsibility is shared by the parties.

   114.  That the children spend time with [Mr Caccini] each alternate weekend from Friday after school until Sunday after school. Consideration could be given to extending this to Monday morning, with changeovers occurring at school. This would reduce the need for the parties’ to come into contact with one another and also provide [Mr Caccini] with the opportunity to take on more day to day routine parenting by doing a school pick up and drop off.

   115.  In addition, that the children each separately spend one evening per week or in the alternate week with [Mr Caccini] to foster their individual bond with him.

   116.  That the children’s time with [Mr Caccini] is no longer supervised.

   117.  That the parties enrol in a Parenting Orders Program, such as that offered by [E Group] in [Suburb F] (ph: …) in order to assist them to establish a co-parenting relationship and promote consistency across households. Such organisations are typically able to assist in tailoring the program to their clients, having regard for [Ms Caccini’s] cognitive deficits.

   118.  That the parties work with a child psychologist who specialises in autism, or similar professional such as [Y’s] paediatrician, to develop a more consistent approach to their parenting.

   119.  That the parties work with [X’s] school to develop strategies to ensure [X] is appropriately stimulated at home. [X] may also benefit from engaging in counselling to provide her with an independent outlet to share her experiences of the family dynamic.

   120.  That [Ms Caccini] may benefit from engaging in counselling to support her in caring for a child with special needs but also in moving on from the relationship breakdown.

8. The report is untested even though the report writer gave evidence today.  She gave evidence for only about half an hour and was not cross-examined.  A transcript has been ordered.

9. In the family consultant’s evaluation of the family she makes particular reference to X (8 years) as being a child who is seeking attention.  The family consultant writes:

   73.    [X] presents as a determined and somewhat defiant child, who likes to get her own way. Consistent with the observations of [Dr J], [X] presents as a child who is under stimulated. She spent the entirety of the assessment, including the observations with each parent, lying on the floor of the playroom or by the main entrance refusing to move. Her defiance was such that she was observed by the report writer to ignore multiple requests of the playroom staff to sit upright to eat her food, which resulted in her beginning to choke on a dry biscuit.

   74.    Initially, she did not engage with the report writer, turning away and refusing to acknowledge the report writer’s presence. Eventually, [X] attended the report writer’s office for a brief interview. [X] appeared disinterested and disengaged throughout. She lay down on her side on the floor for the interview facing away from the report writer, occasionally turning to face the ceiling to answer select questions. At times she also rolled over onto her stomach and buried her head into the floor.

   75.    When she did engage, [X] used a soft, quiet voice. [X] spoke positively of making tomato sauce with the paternal family and of going fishing with her father. She also enjoys going shopping with her mother.

   76.    [X] reports not regularly interacting in recreational activities with [Y]. Instead, choosing to play on her own at home. She confirmed that each parent’s household is run differently. Specifically in relation to the care arrangements, [X] stated she wants to spend more time with [Mr Caccini] during the school holidays.

   77.    Towards the end of the interview, [X] appeared to feign needing to use the toilet as an excuse to end the interview. She then slowly crawled on her hands and knees back to the playroom, stopping halfway and lying on the floor refusing to move before eventually continuing on. For the latter half of the assessment, [X] was observed to play on her iPad whilst lying on the floor of the playroom and did not interact with others in the room.

   78.    Throughout the assessment, [X] was observed to engage in a number of behaviours and activities that were similar to [Y], or akin to a child with an intellectual disability or autism. This included: lying on the floor for the entirety of the assessment, remaining disengaged from others including adults and same-aged peers, refusing to make eye contact, regressed behaviours such as crawling on her hands and knees, seeking comfort in tactile sensations, ignoring directions from adults, and extensive use of her iPad despite being presented with a range of other activities

10. Parenting capacity is a primary concern in this case.  There are also significant allegations of family violence.

11. In 2015 the father was charged with five counts of violence related behaviour in relation to the mother and the children.  He received a $2,000 fine on one charge of unlawful assault which was subsequently overturned on appeal.  All other charges were dismissed.

12. The family consultant records:-

    62.    It is noted that the historical allegations of family violence are not the only factor impacting on the parties’ capacity to effectively communicate and co-parent. It appears that both parties are unsure of how to resolve their differences and move forward in a constructive manner. It is not necessarily the case that they do not wish to communicate but rather do not know how to go about doing so post-separation.

    63.    Both parties report finding the communication book a useful tool. However, [Ms Caccini] stated she would like for the parties to also be able to communicate in person. [Mr Caccini] is hesitant about this, stating that he does not want to interact with [Ms Caccini] on his own. He is concerned about the risk of future allegations. He acknowledges the parties will one day have to speak but reports being fearful of such a time as he is worried “I’m going to get arrested again or say something wrong”.

    64.    Both parties recognise they have different parenting styles and approaches within their respective households, which is causing confusion for the children. Further, both parties are of the view that the children are struggling with transitioning between time with each parent due to these differences. However, neither party provided any possible solution to this issue. As such, they will likely need professional assistance with same.

    65.    [Ms Caccini] also remains concerned about the level of involvement the paternal aunt has in caring for the children, suggesting that she is driving the current proceedings rather than [Mr Caccini]. It is possible that [Mr Caccini] has an overreliance on the paternal aunt in assisting him to care for the children. However, it is also plausible that [Ms Caccini] feels threatened by the involvement of another woman in parenting the children.

    66.    [Ms Caccini] appears to be under the misapprehension that she holds the right to make all decisions for the children as she is the mother. She believes [Mr Caccini] should seek her permission prior to engaging in activities with the children despite him being the children’s father. In this respect, she holds her position as the children’s mother in higher regard than that of [Mr Caccini] as the children’s father. This is perhaps in part related to rigidity in her thinking.

    67.    Due to their history of poor communication, [Mr Caccini] is concerned that he is not kept informed of important information about the children. He placed particular emphasis on not being informed of the sexual assault against [Y] by a peer in 2015. [Ms Caccini] states she did not inform [Mr Caccini] at the time due to the IVO and resultant lack of contact between them. The report writer is hopeful that with professional support the parties can work towards a positive, functional co-parenting relationship for the sake of the children.

1. Matters have escalated since the family consultant’s interviews on 30 April 2018.  I am advised from the bar table, and it appears to be common ground, that X’s school is most concerned with her behaviour and the fact that she has written letters in which she indicates that she no longer wishes to live.  I sought clarification of this on the basis that the family report did make reference to X’s wish being to no longer live with the mother.  It was clarified for me that X’s expressions to the school, in writing and otherwise, were suicidal in nature rather than merely expressing a desire just not to live with the mother. 

2. The school arranged – with the knowledge of the parties – for the school psychologist to see X at a certain date of which the parents had knowledge.  However, prior to that date, it appears to be common ground that the father took X during a period of supervised time to his medical practitioner. That was a medical practitioner not being X’s regular medical practitioner and he did so without notice to the mother. 

3. It was said by his counsel from the bar table that the father took the child to the doctor because the child was distraught complaining of physical discomfort, in particular stomach aches, and he thought that the intervention was necessary. This does not accord with the instructions that Mr Tesoriero has as to content of what occurred between the doctor and the child and the father and, presumably, the paternal aunt during the medical consultation.  The independent children’s lawyer has spoken to the doctor who confirmed that he/she advised X that she did not need to speak to anyone, including a psychologist, and that there was “nothing wrong with her.”  It is thought by the independent children’s lawyer, somewhat reasonably, that such a conversation with a general practitioner shortly before X was due to see the school’s psychologist was undermining of the benefit that the child was likely to be able to obtain from seeing the school psychologist.

4. The appointment with the school psychologist did not proceed because the child X refused to cooperate. 

5. The Department of Health and Human Services has more recently been involved, probably, on notification by the school.  It has been arranged that X will be seen by Dr B, and the appointment date at the moment is 12 November 2018.  That is the same date as the first day of trial before me. 

6. The agreed way forward for the parties when the matter was mentioned at 2.15 today was, as I understand it, as follows:

   ·        The parents agreed that X would be enrolled in the school holiday program for L School at Suburb H for the duration of the school holidays (this was at the recommendation of the school and DHHS);

   ·        X would commence treatment or therapy at CAMHS Suburb D Campus at the earliest practical opportunity which is in the first week of next term which is some 16 days away;

   ·        There would be a further updated family report pursuant to s 62G;

   ·        X would see Dr B and be assessed by him in November but that report would not be available for any final hearing which is obviously to commence on 12 November.

7. I queried the amenity of using a family report merely to coordinate and gather evidence which is the responsibility of the practitioners for the parties and in particular the independent children’s lawyer.  The independent children’s lawyer has obviously given consideration to this matter and the Court is assisted by her input.  She is a capable independent children’s lawyer who I am confident will be able to collate evidence for the Court.  On the other hand, Family Consultants being social workers or psychologists assist parents and judges to achieve best outcomes for children by providing expert evidence about childhood development

8. I also queried whether there were adequate steps to take in the immediate term for a child who is obviously in extreme emotional distress evidenced by writing about wanting to end her life. 

9. There are two principal recommendations in the report:  one was that the requirement for supervision of time between the children and the father be lifted, the other was that the time between the children and the father be increased.  In particular, that the children spend separate time – separate and individual time with the father one evening per week. 

10. The arrangement between the parties does implement the recommendation about lifting supervision but it does not increase any time that either child spends with the father.  As extracted above [76] “X stated she wants to spend more time with Mr Caccini during the school holidays”.  I understand the current orders provide that the father’s time with the children during school holidays be extended by a period of four days but the parties have agreed that X will spend only four days with the father. 

11. The Family consultant acknowledged that X may benefit from seeing more of her father during term time even since the suicide letter.

12. There is no agreement between the parties as to extra time with the father during term time. 

13. The independent children’s lawyer advocates that any further reportable counselling by a full family report under s 62G(2) for which assessment would be available in August 2018. It would presumably be released in September 2018. The difficulty is that the family consultant would not have the benefit of Dr B’s assessment and a further report may need to be done next year in any event. Family reports are always helpful but the amenity must not be weighed against the import of the assessment on the children. It is an intrusive process.

14. I am informed that, with some moving around and rejigging of diaries in Child Dispute Services, a s 11F family and children’s issues assessment can be appointed for 13 July 2018. A written report can follow two weeks thereafter, however, in my view, it is adequate for there to be an oral report because the family consultant is likely to be required for cross-examination in any event. If it is less onerous to the child dispute services and to Dr G, I would invite them to do an oral report rather than a written report.

15. It being late in the day, I will set a return date for this matter once my chambers hears from child dispute services as to a convenient date for the family consultant to come to Court. I am opting for the earlier intervention with a parent and children’s issues assessment principally because I am concerned about the older child’s state of mind. I understand that the degree of investigation will be less than with a full family report. The s 11F assessment is the means by which evidence can be before the court on what immediate interim arrangements are in the best interests of both children. On the adjourned date I expect it to deal with an interim increase in the time the children, or either of them, spend with the father and t include evidence of the children’s views.

16. In terms of a final hearing, the date in November 2018 no longer appears to be appropriate and the family’s needs would be better met, in my view, by a hearing after a final family report that is completed and following any assessment by Dr B and an investigation of any steps which he considers ought to be implemented.  I am requested by counsel for the wife to retain the hearing in November 2018 in case Dr B can see X before November.  I will acceded to that request until the adjourned date.  On the adjourned date I will determine interim parenting arrangements and the time tabling for the final hearing which will, most likely, be listed to February 2018.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 29 June 2018.

Associate: 

Date:  17 July 2018