Cappetto and Cappetto

[2010] FamCA 425

FAMILY COURT OF AUSTRALIA

CAPPETTO & CAPPETTO [2010] FamCA 425

FAMILY LAW – CHILDREN – Best interests – supervised time with father

Family Law Act 1975 (Cth)

APPLICANT: Ms Cappetto

RESPONDENT: Mr Cappetto

INDEPENDENT CHILDREN’S LAWYER: Brian Samuel

FILE NUMBER: SYC 7342 of 2008

DATE DELIVERED: 24 May 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 24 May 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Associates

Orders

1. A Chapter 15 report be prepared conditional upon Legal Aid granting funding for the costs of the preparation of that report.  The report will address issues that the Independent Children's Lawyer will outline in a document he will forward to me within 48 hours. 

2. The Application in a Case filed by the mother on 4 May 2010 be dismissed.

3. The orders made 22 September 2009 be varied so that all previous orders are discharged.

4. The children B (DOB ….9.2005) and S (DOB ….7.2007) live with the mother.

5. The children spend time with their father each Saturday at 10am for two (2) hours at C Shopping Centre, the first Saturday to be Saturday 29 May 2010, until such time as a place is available for the children to see their father at Sydney Children’s Contact Centre. 

6. As soon as practicable the parties meet all entry requirements of Sydney Children’s Contact Centre and at all times do all things and sign all documents required by that agency to arrange for supervised time between the children and their father each Saturday for a period of two hours. 

7. The parties are to, if needed:

   7.1.arrange for an appointment for assessment;

   7.2.attend the assessment;

   7.3.comply with any appointments made by the contact centre for supervised time;

   7.4.comply with all reasonable rules of the contact centre; and

   7.5.comply with all reasonable requests or directions of the staff of the contact centre.

8. If the contact centre during the currency of these orders declines or is unable to continue to provide its services or the director of the contact centre recommends in writing to the parties a variation of these orders, then each party and the Independent Children's Lawyer may on 7 days written notice to the other party and the court restore the matter to my list. 

9. If accepted by the contact centre, the children are to spend two hours each Saturday with their father at that centre.

10. The mother shall deliver the children to and collect the children from the contact centre at the time specified by the contact centre and on each occasion promptly leave the building and the vicinity. 

11. The children’s time with their father is to be supervised at all times by a supervisor at the centre and in the event that the supervisor is of the view that that father has said anything or done anything in the presence of the children that was inappropriate they are to conclude the supervised session and contact the mother so that she might pick the children up.

12. The father shall not attend the contact centre or its vicinity before the time the children are due to be delivered there and shall promptly leave the contact centre and the vicinity of the contact centre when his time with the children has ended. 

13. Within 7 days the mother deliver the passports of the children to the Registrar of this Court and I request the Registrar photocopy the passports and provide those photocopies to the mother together with a certification that the photocopies of the passports are photocopies of the passports which are held by the court pursuant to these orders. 

14. Leave granted to the Independent Children's Lawyer to issue any subpoena that he thinks relevant. 

15. The mother provide the Independent Children's Lawyer a list of all medical practitioners she has seen in the last twelve months. 

16. Any outstanding applications are to be listed before me on the next occasion the matter is before me. 

17. Pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders. 

NOTATION:

1. The father at my suggestion has agreed to withdraw the applications that he has filed that the mother be dealt with for contravention of the existing orders. Those applications were returnable in the Judicial Registrar’s list on 30 June 2010. 

2. The period of time specified in these orders is subject to the contact centre being open on each weekend and in the event the contact centre’s services are not available during a particular period then this order would be suspended during that period. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 7342 of 2008

MS CAPPETTO

Applicant

And

MR CAPPETTO

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter has come before me for the first time today.  There was pending, an application by the father, that the mother be dealt with for contravention of the orders.  The father alleged multiple breaches of the orders of 22 September 2009.  The father, at my suggestion, following the discussions that we have had during today, agreed to withdraw that application and focus on what orders should be made in the future in this matter.  Accordingly, that application which was set down at the end of this month has been withdrawn.

2. The primary reason the matter is before me today, was an urgent application made by the mother that she be able to travel overseas with the children, to facilitate her having a gynaecological operation herself.  The mother says that she is not prepared to entertain the idea that that operation might take place in Australia, notwithstanding that she is seeing an Australian general practitioner and has been referred back to an Australian gynaecologist, whom she has seen previously.

3. The father opposes the children being taken back to India.  The independent children’s lawyer also opposes the children being taken back to India. 

4. I have discussed, today, with the mother, a number of options that she has available to her.  I take it, from what she has said to me, that although she has saved up the money for two and a half air fares, she would not really countenance the idea of somebody coming from India to Australia to assist her during any time that she would have the operation in Australia and would be recuperating from that operation. 

5. The mother presents as a woman who has an extreme fear of allowing the children to be with anybody other than herself, and that creates a very difficult position for me.  India, however, is not a Hague Convention country, and notwithstanding the fact that the mother says on three occasions, she has gone to India and come back to Australia, the litigation has now reached an unfortunate intensity.  That means that I have some considerable concerns, if I allow the children to leave the country in circumstances where I have not fully heard all the evidence in the case, including evidence that I will receive from a child psychiatrist, in the event that the Independent Children's Lawyer is successful in obtaining legal aid funding for a chapter 15 report to be prepared by a child psychiatrist.

6. I intend to consider making an order under Chapter 15 Family Law Rules, in the terms the Independent Children's Lawyer can send to my chambers within 48 hours.

7. The remaining issue relates to putting in place, on an interim basis, a set of orders which are in the children’s best interests.  The mother makes a number of allegations against the father in this matter.  They have not been tested, and the father, in general terms, disputes the allegations that have been made.  I have explained to the parties that I will need to conduct a full hearing before I reach a concluded view about whose version I accept.  In the interim, I have to balance, on the one hand, the risk that what the mother says is true against the risk of a four and a half year old and a three year old not having any meaningful time with their father at this formative time of their lives.  That could be quite devastating to them in the event that I find the mother’s allegations are untrue or seriously exaggerated. 

8. I have to reach some type of compromise.  The mother is vehemently opposed to the children seeing their father in any circumstances unless she is present.  The father wishes to see the children away from her.  It seems to me the compromise lies in supervising some time when the children can see their father.  These times are unnatural times because of the supervision and the location where they will be held, and the duration for which they can be held, but it is the best that can be done.  The children are entitled to time with their father away from their mother, so that they can experience something about his parenting without referring constantly to their mother.  It’s a matter of creating as safe an environment for the children for that to happen as is possible.  The professionals at the Sydney Children Contact Centre are trained to do exactly this type of work, to vigilantly supervise children with their father.  The Independent Children's Lawyer supports this order and on the material I have, I am satisfied that in the short term it is an interim order which is in the children’s best interests. 

I certify that the preceding eight (8) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts.

Associate: 

Date:  1.6.2010