CASALES & CASALES

[2014] FamCA 181

FAMILY COURT OF AUSTRALIA

CASALES & CASALES [2014] FamCA 181

FAMILY LAW – CHILDREN – Interim – Where the mother sought orders for the suspension of orders that were made by consent pursuant to which the children spend time with their father and that the mother have sole parental responsibility for the children – Where the court determined that it is appropriate to proceed with the matter ex-parte in circumstances where the court is satisfied that the father is aware of the proceedings – Best interests of the children considered – Where the court determined that, on the material before the court, it is appropriate to suspend the time the children are presently spending with the father and that the mother have sole parental responsibility for the children – Where the court made orders as sought by the mother.

Family Court Act 1975 (Cth)

APPLICANT: Ms Calales

RESPONDENT: Mr Casales

FILE NUMBER: SYC 1543 of 2009

DATE DELIVERED: 24 February 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 24 February 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. That leave is granted for this matter to proceed today on an ex parte basis.

1. That the operation of Order 1, 4(d) and 6 of the Orders made on 6 December 2009 is suspended and the said Orders are hereby discharged.

2. That the mother shall have sole parental responsibility of the children M born … 2005 and W born … 2007.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Casales & Casales 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 SYDNEY

FILE NUMBER: SYC 1543 of 2009

Ms Casales

Applicant

And

Mr Casales

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the mother for the suspension of orders that were made by consent on 4 December 2009 pursuant to which the children, W and M (‘the children’) spend time with their father.  The applicant mother also seeks an order that she have sole parental responsibility for the children. 

2. The father has not appeared today.

3. On 14 February 2014, solicitors acting for the father wrote to the mother’s solicitors (Exhibit “C”) saying:

   Moreover, our client has confirmed his previous instructions that he will not agree to any proposal which has the effect reducing, imposing conditions and/or limitations in respect of the time he spends with the children.  Our client requests that the Mother withdraw her Application and reverts to the arrangements set out in the existing Orders. 

4. It is apparent from that paragraph that the father was aware of the present application. 

5. The letter of Ms Zafiris, the father’s solicitor, then goes on to state that she was not instructed to appear at the ‘Case Conference’ scheduled for 17 February 2014 and that her client would not be attending either.

6. The final paragraph of Exhibit ‘C’ states:

   Finally, we note that you have advised the writer that should there be no attendance on behalf of the Father, you shall ultimately seek Orders in accordance with the draft Orders submitted on even date whereby the Father is permitted to spend time with the children on a supervised basis. 

   (As per original)

7. On 19 February 2014 the lawyer acting for the mother wrote to the lawyer for the father stating that the instructions were now to seek the final orders as set out in the mother’s application initiating proceedings.  The letter also noted that the matter was listed today for the interim hearing.

8. Accordingly, I am satisfied that the father is aware of the proceedings on today and, although given short notice of the application for the final relief, he was on notice and has not appeared, even to seek an adjournment. 

9. Accordingly, it is appropriate to proceed with the matter ex parte.

The mother’s application 

1. The mother has led evidence from herself and from her sister that the children have become increasingly unwilling to spend time with their father.  The children have said things such as: ‘I am not going’, ‘You don’t understand’, ‘I don’t want to see him’, ‘He’s going to yell at me’.

2. The child, M, in particular becomes extremely distressed saying to the mother, ‘I can’t breathe’ and ‘he’s going to hurt me’.

3. Changeovers have become more difficult with both children holding on tightly to their mother and at times kicking and biting in effort not to be sent to spend time with their father.

4. The children have been the subject of a report from Ms J who is a clinical psychologist.  The report of Ms J has been tendered and is Exhibit ‘B’.  There is no affidavit with it that complies with the Family Law Rules as to the giving of expert evidence and, in particular, the statements that an expert witness must give.  The report must be seen in that light.

5. The children have told Ms J that the father will often not converse with W when the children are spending time with him and the father does not inquire about his friends or interests.  M says that on occasion, in response to this, W will hit or bite her and the father always responds by smacking W and neither the father nor M then comfort him.  The father has made threats to manage W’s behaviour with aversive means such as using hot chilli.

6. The children have been undergoing therapy with Ms J.  She also noted that there is evidence that the father is somewhat obsessive in relation to bathing the children, and will pay excessive attention to the genital area, although it is not suggested that there is something overtly sexual in relation to that. 

7. In conclusion, Ms J said:

   It is my opinion that [W] and [M] require more protection from their Father that is currently in place.  Neither the Father nor Grandparents have demonstrated behaviour towards [W] and [M] that is nurturing or supportive.  Furthermore, it is likely that the Father lacks insight into the impact of his behaviour, namely his rigidity, control, verbal abuse and threats, is having towards the children.  Consequently, continued overnight stays in father’s Family home will have detrimental effects on both children.

   Therefore, it is recommended that contract with their Father be supervised, where an independent and responsible adult is present so the Father cannot continually subject the children to fear and anxiety.

   (As per original)

8. As already has been seen, the father is not prepared to agree to supervised time.

Conclusion 

1. Accordingly, on the material before the court, it is appropriate to suspend the time the children are presently spending with the father.  Such an order is in the best interests of the children.  Such an order fulfils the need to protect the children from psychological harm from being exposed to abuse or neglect from their father.  It gives expression to the views of the children and recognises that, on the evidence, the father presently lacks the capacity to provide for the emotional needs of their children, at the least.

2. The order in relation to sole parental responsibility is somewhat more difficult.  The mother has annexed to her affidavit text messages from the father that suggest that communication between the parties is difficult.  The changeovers presently take place at a police station.  There is a real difficulty in the communication between the parties.

3. Taking those matters into account, and the matters already referred to, it is in the children’s best interests that the mother have sole parental responsibility for the children.

4. In the ordinary course it is in the interests of the children for both parents to play a role in relation to the long-term decision making concerning the children and the children have the benefit of the input from both parents in their lives.  Given the attitude shown by the father, which is that he is only prepared to see the children on his terms, given his behaviour towards the children, and the difficulties with cooperating towards the mother, the best interests of the children favour the making of the order sought by the wife. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 24 February 2014.

Legal Associate: 

Date:  21 March 2014