FAMILY COURT OF AUSTRALIA
| CAPPETTO & CAPPETTO (NO 3) | [2011] FamCA 345 |
| FAMILY LAW - CHILDREN – With whom the children should live – Where the mother’s actions threatened the children’s social development – Where the mother’s extensive allegations against the father were unfounded – Where the mother has developed and exposed the children to irrational fears about the father – Best interests of the children to live with the father – Where the mother has made comments insinuating harm to herself or the children – Period of supervised time with the mother ordered |
| Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) |
| Briginshaw v Briginshaw (1938) 60 CLR 336 |
| APPLICANT: | Mr Cappetto |
| RESPONDENT: | Ms Cappetto |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuels |
| FILE NUMBER: | SYC | 7342 | of | 2008 |
| DATE DELIVERED: | 11 May 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 7 April 2011 to 14 April 2011 and 19 April 2011 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuels & Associates |
Orders
All previous parenting orders in respect to the children of the marriage namely B born … September 2005 and S born … July 2007 (the children) be discharged.
The father have sole parental responsibility in respect to all long term issues relating to the children. Before making and implementing decisions about long term issues, the father is to give 21 days written notice to the mother of the decision he intends to make and consider any view expressed by the mother in writing within 14 days after giving her the notice.
The children live with the father.
Subject to compliance with orders 5, 6 and 7, the children spend time with the mother initially as follows:
4.1.
From 11.00am until 2.00pm on Saturday 21 May 2011, Saturday 4 June and 18 June 2011;
4.2.On expiration of paragraph 4.1 of the Orders contained herein each Saturday from 10.00am until 4.00pm, the first such period to be on Saturday 25 June 2011 and to continue until 28 January 2012;
4.3.From 4.00pm until 6.00pm on the Mother’s birthday, … September 2011;
4.4.From 11.00am until 2.00pm on S’s birthday, … July 2011 (noting that B’s birthday in 2011 already lies on a visitation day); and
4.5.The father is to make the children available to receive a telephone call from the mother between 6.00pm and 6.30pm on every Tuesday and Thursday, and he is to otherwise facilitate that communication. The father may listen to the phone call, and terminate the phone call in circumstances where the mother does not comply with order 5 below.
During the mother’s time with the children in accordance with orders 4.1 to 4.4 and 9.1 to 9.8, and her telephone contact in accordance with 4.5 and 9.9, she shall not do or say anything which endangers the safety, health or well-being of the children either physically or emotionally, act inappropriately or say anything inappropriate to…
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- Case
- [2011] FamCA 345
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate parenting orders, including who should have parental responsibility for long-term issues, where the children should live, and the specific arrangements for the children to spend time with each parent. The court also had to consider conditions and restrictions to be placed on the mother's time with the children, and the role of a supervisor.
Watts J discharged all previous parenting orders and made new orders that the father have sole parental responsibility for all long-term issues, with a requirement to provide the mother with notice and an opportunity to comment on proposed decisions. The children were ordered to live with the father. The mother's time with the children was initially significantly restricted and supervised, with specific conditions designed to protect the children's safety, health, and well-being. These conditions included prohibitions on denigrating the father or undermining the court orders, and the supervisor's obligation to terminate contact and notify the father if the mother endangered the children. The orders also outlined a phased approach to increasing the mother's time with the children, contingent on her compliance with the conditions and completion of a post-separation and counselling course. Further orders addressed specific issues such as discipline, changeovers, communication, and the children's schooling and medical care.
Orders
Orders of the court
1.
All previous parenting orders in respect to the children of the marriage namely B born … September 2005 and S born … July 2007 (the children) be discharged.
2.
The father have sole parental responsibility in respect to all long term issues relating to the children. Before making and implementing decisions about long term issues, the father is to give 21 days written notice to the mother of the decision he intends to make and consider any view expressed by the mother in writing within 14 days after giving her the notice.
3.
The children live with the father.
4.
Subject to compliance with orders 5, 6 and 7, the children spend time with the mother initially as follows:
4.1.
From 11.00am until 2.00pm on Saturday 21 May 2011, Saturday 4 June and 18 June 2011;
4.2. On expiration of paragraph 4.1 of the Orders contained herein each Saturday from 10.00am until 4.00pm, the first such period to be on Saturday 25 June 2011 and to continue until 28 January 2012;
4.3. From 4.00pm until 6.00pm on the Mother’s birthday, … September 2011;
4.4. From 11.00am until 2.00pm on S’s birthday, … July 2011 (noting that B’s birthday in 2011 already lies on a visitation day); and
4.5. The father is to make the children available to receive a telephone call from the mother between 6.00pm and 6.30pm on every Tuesday and Thursday, and he is to otherwise facilitate that communication. The father may listen to the phone call, and terminate the phone call in circumstances where the mother does not comply with order 5 below.
5.
During the mother’s time with the children in accordance with orders 4.1 to 4.4 and 9.1 to 9.8, and her telephone contact in accordance with 4.5 and 9.9, she shall not do or say anything which endangers the safety, health or well-being of the children either physically or emotionally, act inappropriately or say anything inappropriate to or in the presence of the children, denigrate the father or attempt to undermine the effect of these orders.
6.
The mother’s time with the children pursuant to paragraph 4.1 to 4.4 of the Orders is to be supervised by Dr M or by such other person as agreed to by the parties in writing (“the supervisor”). The supervisor is to read a copy of my reasons for judgment prior to supervising the mother with the children.
7.
The mother’s time with the children pursuant to paragraph 4.1 to 4.4 of the Orders be further subject to the following conditions:-
7.1.
Prior to the children’s supervised time with their mother the supervisor sign the Undertakings set out at the conclusion of these orders and such Undertakings be lodged by the mother with the Registry of the Family Court of Australia at Sydney.
7.2.
The mother provide a sealed copy of the signed Undertakings to the father and to the Independent Children’s Lawyer.
7.3.
In the event that the Mother endangers the safety, health or well-being of the children either physically or emotionally, acts inappropriately or says anything inappropriate to or in the presence of the children, denigrates the father or attempts to undermine the effect of the orders contained herein, the supervisor is forthwith to terminate the mother’s time with the children and the supervisor is to immediately contact the father so that he might collect the children.
8.
In the event that the mother breaches Order 5, all further time between the children and the mother is to be suspended pending further agreement between the parties or further Order of the court.
9.
Subject to Order 11 and in the event that the mother complies with paragraphs 4, 5, 6 and 7 of the Orders contained herein and in addition completes a post separation and counselling course, the mother’s time with the children from 10 December 2011 to be as follows:
9.1. From 4 February 2012 to 14 April 2012 each alternate weekend from 6.00pm on Saturday until 6.00pm on Sunday;
9.2. From 27 April 2012, each alternate weekend from 6pm on Friday until 6.00pm on Sunday;
9.3.
For half of each school holiday period at times and dates to be agreed by the parties and failing agreement to be the first half of the school holidays commencing at the conclusion of second term 2012.
9.4. From 4.00pm until 6.00pm on the Mother’s Birthday should it fall on a school night, or 12.00pm until 6.00pm should it fall on a weekend where the mother would not ordinarily be spending time with the children.
9.5. In the event Mother’s Day falls on a non-contact weekend, from 12.00pm to 6.00pm on Mother’s Day.
9.6. From 6.00pm Christmas Eve until 6.00pm Christmas Day in years ending in an odd number and from 6.00pm Christmas Day to 6.00pm Boxing Day in years ending in an even number.
9.7. From 4.00pm to 6.00pm on each of the children’s birthdays should they fall on a school day, or 1.00pm to 6.00pm should they fall on a weekend day where the mother would not ordinarily be spending time with the children;
9.8. At such other times and dates as agreed to by the parties; and
9.9.
The father is to make the children available to receive a telephone call from the mother between 6.00pm and 6.30pm on every Tuesday and Thursday.
10. In the event that the mother fails to comply with the conditions referred to in order 9 and 5, the mother’s time with the children to be in accordance with paragraph 4.2, to 8 of these Orders.
11. Notwithstanding any other order which might be inconsistent, the children spend time with the father:
11.1. From 12.00pm until 6.00pm on the father’s birthday, should it fall on a day the children would ordinarily be spending time with the mother;
11.2. In the event Father’s Day falls on a contact weekend with the mother, from 12.00pm to 6.00pm on Father’s Day;
11.3. From 6.00pm Christmas Eve until 6.00pm Christmas Day in years ending in an even number and from 6.00pm Christmas Day to 6.00pm Boxing Day in years ending in an odd number; and
11.4. From 1.00pm to 6.00pm on each of the children’s birthdays, should they fall on a weekend where the father would not ordinarily be spending time with the children.
12.
Neither parent physically discipline the children.
13.
All changeovers to take place at landmark 1 in the Sydney Suburb 1 Mall precinct or at such other place agreed between the parties in writing,
14.
The father complete a post separation and counselling course.
15.
The father do all things necessary and sign all documents required to ensure that the child B attend a public school or private school of his choice as soon as reasonably practicable, taking into account B’s medical needs and requirements.
16.
The father do all things necessary and sign all documents required to ensure that B’s school forwards directly to the mother copies of all school reports and notices relating to B.
17.
The father do all things necessary and sign all documents required to ensure that the child S continues to attend pre-school at least two (2) days per week.
18.
Upon S reaching school age the father do all things necessary and sign all documents required to ensure that S attend a public school or private school of his choice.
19.
The father do all things necessary and sign all documents required to ensure that S’s pre-school and/or school forwards directly to the mother copies of all pre-school and/or school reports and notices relating to S.
20.
The father keep the mother advised at all times of any significant health, medical, religious or educational issues relating to the children.
21.
The father ensure that the children attend on a paediatrician at regular intervals and that he follow all reasonable advice and recommendations of the paediatrician.
22.
The parties do all things reasonably necessary to ensure that both children are fully toilet trained and the parties follow the recommendations of the children’s paediatrician in that regard.
23.
Each party ensure that they keep the other advised at all times of their respective residential address and telephone number.
24.
Neither party shall denigrate the other or permit any third party to do so within the presence or hearing of the children.
25.
Neither party discuss any issues arising out of these proceedings with the children or permit any third party to do so.
26.
The children’s Australian passports be released to the custody and control of the father.
27.
The Order appointing the Independent Children’s Lawyer continue for a period of 12 months after the date of these orders, and that he facilitate the signing and lodging of the undertaking by Dr M, as soon as practicable.
28. All pending and/or outstanding Applications relating to parenting proceedings between the parties be otherwise dismissed.
29. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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.
30. Except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to the children and that until further order that Judge be Justice Watts, if he is reasonably available.
Undertakings
I [name] agree to act as supervisor in the time the mother, Ms Cappetto, spends with the children, B and S Cappetto. I will keep the mother within my sight and hearing at all times that she is in close proximity with the children. In the event that the Mother endangers the safety, health or well-being of the children either physically or emotionally, acts inappropriately or says anything inappropriate to or in the presence of the children, denigrates the father or attempts to undermine the effect of the orders contained herein, I will terminate the mother’s time with the children and immediately contact the father so that he might collect the children.
Signed __________
Dated ___________
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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