Catoggio and Reece

[2013] FamCA 248

FAMILY COURT OF AUSTRALIA

CATOGGIO & REECE [2013] FamCA 248

FAMILY LAW – Children – final orders – consent – best interests of children

Family Law Act 1975(Cth)

APPLICANT: Ms Catoggio

RESPONDENT: Mr Reece

INDEPENDENT CHILDREN’S LAWYER: Mr Purcell

FILE NUMBER: TVC 40 of 2013

DATE DELIVERED: 28 March 2013

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 21 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fellows

SOLICITOR FOR THE APPLICANT: Ruddy Tomlins & Baxter

SOLICITOR FOR THE RESPONDENT: Ross Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWER Purcell Taylor Lawyers

Orders

1. The children, B born on … September 2012 and C born on … September 2012 live with the mother;

2. The mother and the father have equal shared parental responsibility for the major long-term issues in relation to the children.

3. The children spend such time with the father as may be agreed between the parties.

4. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation

5. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Catoggio & Reece 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

FILE NUMBER: TVC 40/2013

Ms Catoggio

Applicant

And

Mr Reece

Respondent

REASONS FOR JUDGMENT

1. This matter concerns parenting orders in relation to twins, B and C, born in September 2012 (hereinafter “the children”).  At the time of these reasons they are approximately 6 months of age.

2. The matter first came before me on 30 January 2013, when the mother sought  interim orders for the recovery of the children.  The circumstances which gave rise to that application are largely uncontentious.

3. The mother and father, save for about 7 days, had never lived together, and whilst there is a dispute as to whether they had sex on one or more occasions, do not seem to have had any sort of significant relationship.

4. The children were born 5 weeks premature, in consequence of which they remained in D Town Hospital for some weeks, until 1 October 2012.  Between then and 8 October, both the mother and father lived in the mother’s home.  The father returned there again on 12 October, and lived there until 14 October.  He thereafter regularly spent time with the children.

5. The parties agreed that the children would spend time with the father over Christmas, and to that end agreed that he would take them to E Town to be with his mother and sister.  Whilst driving from D Town to E Town, the father says he stopped in to his former address in H Town, and was given two letters from the Department of Child Safety (“the Department”) dated 28 August and 12 September.  The letters are identical in their terms, and relevantly identified that the, then of course unborn, children either had been, or were at risk of being, harmed, and specifically that this was due to an unacceptable risk of physical and emotional harm caused by the mother’s failure to protect the children from neglect.

6. By para.8 of his unsworn affidavit (I will explain the circumstances of that in due course) the father said that when he read the letters, he was extremely shocked that prior to the birth of the children, the mother had been found by the Department as causing an unacceptable risk of harm to the children. 

7. In that unsworn affidavit, the father identified that the mother was a drug user, and he asserted that he had personally seen her injecting drugs after the children’s birth.  I infer that it was the mother’s drug use which, in the light of the Department’s correspondence, caused him concern.

8. In consequence of his concerns, the father ultimately, and without consultation with the mother, decided to not return the children to the mother, contrary to what had previously been agreed.  He eventually advised her of this by text message on 8 January 2013.  His evidence was that he had been legally advised that he “should not take any action until the mother filed for a recovery order”.  By that I understand that he was advised he need not seek any orders either in this Court or the Federal Magistrates Court regularising the children living with him unless and until the mother formally challenged that arrangement.  That advice was, of course, poor to say the least.

9. On 18 January the mother commenced these proceedings.  By the time the hearing of the mother’s interim application came on before me on 30 January, the father, who was still in E Town, had been effected by the flooding of that city, and was in an evacuation centre.  Ms. Paul, the duty solicitor on the day, was able to confirm that the father was, as he asserted, in receipt of legal aid, and helped organise to have the grant of aid transferred to a D Town practitioner.  That was necessary because the relevant E Town practitioner had the misfortune to have her office flooded.

10.The matter was adjourned until 1 February to enable the father to prepare material in opposition to the mother’s application.

11.By 1 February the father’s new solicitor had taken instructions sufficient to draft the father’s affidavit, but because of the flood situation, it had not been possible to have it sworn by the father.  I permitted the material to nonetheless be admitted into evidence, given the extraordinary situation at the time.

12.At that interim hearing, a Ms F was called to give evidence by counsel for the mother.  She is the Department’s team leader in G Town, and in that capacity had overall responsibility for the Department’s dealings in relation to the children.  Her evidence was that the Department had involvement with the mother in relation to two of her other children, who were the subject of a Protective Supervision Order, which was then due to expire on 17 February 2013, and I assume has now expired. 

13.In relation to the notification which led to the letters of 28 August and 12 September, Ms F gave evidence that the Department had conducted two unannounced visits to the mother’s home on 19 October and 8 November, which had, in substance, allayed the Department’s concerns, in consequence of which there was no intention to take the matter any further.  I should say that both letters of 28 August and 12 September 2012 contemplated that the Department would be “holding a Family Group Meeting to develop a case plan to ensure that [the children’s] ongoing care and protection needs are being met.”  However there is no evidence that such a meeting transpired, but rather there is only evidence of the two home visits.

14.I was, of course, unable to resolve at the interim hearing the father’s allegation of drug taking by the mother, however I was of the view that, given that the father’s concerns had only being triggered by the Department’s letters, and that the Department no longer held any concern in relation to the children, that a recovery order was appropriate, and that until further order, the children ought live with the mother.

15.As of 1 February, the father’s intention had been to move to live in D Town, however the detail and timing of that move was unclear, particularly given the flood emergency.  I therefore reserved the question of the father’s contact with the children to a later Duty List in February.

16.Surprisingly, when the matter returned before me, I was advised by the father’s solicitor that the father had in fact moved to Perth in Western Australia, apparently under the misapprehension that he would not be permitted to have contact with the children.  I was further informed that he intends to stay there for at least the next three months to try and get together a sufficient capital sum to re-establish himself after the E Town floods, in which apparently he lost many of his possessions.  I was advised that he no longer opposed the mother’s orders and only sought that the children spend such time with him as may be agreed between him and the mother.  I clarified with his solicitor that his consent was to final orders, and was advised that it was.  The mother’s solicitor and the Independent Children’s Lawyer urged me to make final orders in the terms as agreed between the father and mother.

17.The relevant final parenting orders the mother seeks, and to which both other parties consent, are as follows:-

·That the children, B born in September 2012 and C born in September 2012 live with the mother;

·That the mother and the father have equal shared parental responsibility for the major long-term issues of the children.

·That the children spend such time with the father as may be agreed between the parties.

18.The parties consent, even when the proposed orders are supported by the Independent Children’s Lawyer, does not require the Court to make those orders.  The Court must exercise its discretion in accordance with the Family Law Act, not the parties’ agreement.  I therefore turn to the legislative provisions.

19.S.61DA(1) of the Family Law Act 1975 provides as follows:-

When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.

20.No party suggested that there were reasonable grounds to believe either of the two matters specified in s.61DA(2), such that the presumption would not apply, nor that the presumption was rebutted.  Therefore I will order equal shared parental responsibility.

21.Because I am being asked to make consent orders, and because the order that I will make will provide that the parents are to have equal shared parental responsibility for the children, by virtue of s.65DAA(6) I may, but am not required to, consider the matters referred to in s.65DAA(1)(a) to (c) or, if applicable, the matters referred to in s.65DAA(2)(c) to (e).  In this case, I do not propose to consider those matters because on no view, given the father’s present circumstances, is the prospect of the children spending equal time with each of the parents, or spending substantial and significant time with each of the parents, reasonably practicable.  The father’s future intentions are simply too fluid and unpredictable to enable that to occur.  I will therefore order that the children live with the mother.

22.That then leaves the question of what time the children should spend with the father.  The parties are in agreement that the father should spend such time with the children as may be agreed between them from time to time.  Such an order on a permanent basis is unsatisfactory, as potentially the mother may never agree to the father having contact.  The parties have sought to ameliorate such a concern by suggesting that in that event, the father could come back to this Court on the basis that the mother has indicated that she will not obstruct the children enjoying contact with the father.  That may or may not be a sufficient basis for disturbing final orders; that will be a matter for judicial determination if required, based on the evidence then before the Court.

23.However I cannot identify any other practical better alternative other than to make the order sought.  It is presently impossible to make any prediction as to where the father will live in the foreseeable future, and hence what days and time would suit him for the children to spend time with him.  Likewise it is presently impossible to contemplate school holiday contact arrangements, or contact for special events.  There is, simply, a factual vacuum.

24.I have given some consideration as to whether orders could be made to cover the eventuality that the father lives in the same locality as the mother, and conversely on the assumption that the father does not live within reasonable commuting distance of the mother.  However as Mr. Fellows, counsel for the mother identified, those orders may prove to be far from in the best interests of the children if it be some time between their pronouncement and time when the father first spends time with the children.

25.Plainly the father does not want to litigate further, and has, in substance, given in.  The mother ought not be forced to continue to litigate in those circumstances; it could not possibly be in the best interests of the children to have her engaged in stressful proceedings, merely in the hope that at some stage in the future, more concrete orders for contact might become possible.

26.Although I have given thought to adjourning the matter for a lengthy period, I do not think that is in anyone’s best interest either.  Particularly from the children’s perspective, it simply invites further disputation between the parties, who plainly want finality and are hopeful of amicable agreement going forward

27.I have also considered simply making no order as to the children spending time with the father.  In other words, if the parties can agree time in the future, then so be it.  However upon reflection I think that is marginally worse than the proposed consent order, because it affords no compulsion to the mother to produce the children to spend time with the father as agreed.  Given that the father may incur real expense in anticipation of spending time with the children, I think that it is best if any agreement between the parties is enforceable. 

28.Therefore, in all the circumstances, I will make an order on a final basis, that the children spend time with the father as may be agreed upon by the parties from time to time.          

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 28 March 2013.

Associate:

Date:  18 April 2013