CASANO & ANTIPOV

[2016] FamCA 548

FAMILY COURT OF AUSTRALIA

CASANO & ANTIPOV [2016] FamCA 548

FAMILY LAW – PRACTICE AND PROCEDURE – Provision of previous Reasons for Judgment and Orders to Police and the Department of Family and Community Services.
APPLICANT:	Mr Casano

RESPONDENT: Ms Antipov

FILE NUMBER: PAC 3528 of 2012

DATE DELIVERED: 7 March 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 7 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Katsinas

SOLICITOR FOR THE APPLICANT: Just Defence Criminal And Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Guterres

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW Sydney Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Rowley & Associates

Orders

1. The Independent Children’s Lawyer is to provide to the police officer who has carriage of the investigation, Detective Acting Sergeant P, the Orders made on 16 September 2015 and the Reasons for Judgment of 16 September 2015.

1. The Independent Children’s Lawyer has leave to provide to Department of Family and Community Services a copy of the Reasons for Judgment and Orders of 16 September 2015.

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 Casano & Antipov 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 PARRAMATTA

FILE NUMBER: PAC 3528  of 2012

Mr Casano

Applicant

And

Ms Antipov

Respondent

REASONS FOR JUDGMENT

1. First of all I will indicate that I will make, and do make, the following order:

   1. The Independent Children’s Lawyer is to provide to the police officer who has carriage of the investigation, Detective Acting Sergeant [P], the Orders made on 16 September 2015 and the Reasons for Judgment of 16 September 2015.

2. My reasons for making that order are as follows.

3. It would appear that there is currently an investigation into complaints made by the father with respect to matters in which it is alleged that the mother and her partner, Mr F, have harmed the child. The issue of the impact upon the child of the father’s ongoing allegations and, in particular, investigations as a result of those allegations, is a matter that is quite central to the orders that I made on 16 September 2015 and is material that the police would not otherwise be aware of.

4. Earlier during the day, I indicated that it may not necessarily be the case that the child would be interviewed as part of the investigation and referred to the mother having sole parental responsibility. Upon reflection, it must be the case that police are and, in fact, I am confident that they are able to interview children who are the subject of such allegations without the consent of a parent. However, in making a decision whether to interview a child, obviously, the more information available to police to assist them in that, the better.  It is not in any way to suggest that the police should do other than all that they would ordinarily do in investigating a matter, but it would, in my view, greatly assist them if they had that information which, as I say, they would not receive otherwise.

5. It is the case and is revealed in the interim judgment, and this is not a matter that is in dispute between the parties, that the father has previously presented the child to hospital on many occasions. Notwithstanding that he had a paediatrician request that a full evaluation of the his concerns about the child be carried out by the Child Protection Unit, in April 2013, the head of the Child Protection Unit expressed the view in an email that the case is extremely well known to the Unit, that the child has been presented on several occasions and that numerous reports have been made to Community Services. In particular, the head of the Child Protection Unit expressed the view that, “The main concern now being that the father’s behaviour may constitute abuse of the child” and “…concerns have been expressed about the father’s mental state.” 

6. The interim judgment sets out in summary form a number of the matters which, as I say, are not in dispute between the parties. They are, in fact, taking the father’s case at its very highest. Many of the things said upon which Dr G expressed his opinion and, in particular, in relation to the impact of constant investigations upon the child, are on the basis of the father’s evidence about matters, such as his own mental state and his own level of concern.  The issue of the numerous presentations made by the father to health professionals is not a matter in dispute and it is a matter upon which Dr G said, even on the father’s own evidence, raises concern that the behaviour of the father is very damaging to the child’s developmental experience.

7. It would be most unfortunate if police were unaware of these matters which are not in dispute and opinions that have been expressed by people who are highly qualified in this area.  As I say, it is still a matter for police how they wish to proceed, but I would have thought, bearing in mind that the child’s best interests are central in this matter, that the police have as much information as possible.  I do not propose providing them with the affidavits of the parties which the father referred to because it could not be expected that police should go through a fact-finding exercise. 

8. It is not up to police to determine those sorts of matters and I reiterate that my interim judgment was made on the basis of matters within the father’s own case.  In my view, it would be most helpful for the police to be provided with that material.  I also wonder, given that decisions about investigation in these matters usually proceed as a result of cooperation between both police and the Department of Family and Community Services, whether the Department of Family and Community Services also ought to be provided with a copy of the judgment. 

9. The Department certainly was involved and expressed a view some time ago but may not be aware of the more current events and, in particular, the interim orders and the current circumstances.  I will not just make that order suddenly without having asked the parties again whether they wish to say something but given the close relationship between police and the Department, if the leave is not also given to the Department, the police would not actually be able to show that judgment to the Department.

   [Interchange between counsel and the bench not transcribed]

10. For the same reasons as previously given, and especially where it may reasonably be expected that any police decision about further investigation and the way in which that investigation is to proceed may reasonably be expected to be made with consultation with the Department of Family and Community Services, I also make the following order:

    2. The Independent Children’s Lawyer has leave to provide to Department of Family and Community Services a copy of the Reasons for Judgment and Orders of 16 September 2015.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 7 March 2016.

Legal Associate: 

Date:  8 July 2016