Cattini and Hunt

[2013] FamCA 30

FAMILY COURT OF AUSTRALIA

CATTINI & HUNT [2013] FamCA 30

FAMILY LAW – CHILDREN – Interim parenting order

Family Law Act 1975 (Cth)

APPLICANT: Mr Cattini

RESPONDENT: Ms Hunt

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 9573 of 2010

DATE DELIVERED: 4 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bayliss

SOLICITOR FOR THE APPLICANT: Powell Bayliss Lawyers

COUNSEL FOR THE RESPONDENT: Ms Cooke

SOLICITOR FOR THE RESPONDENT: Tolhurst Druce & Emmerson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr O’Connell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McCormack & Co

Orders

1. That all outstanding applications be adjourned to 10.00am on 19 July 2013 for further submissions as to the future conduct of the proceedings.

2. That all extant parenting orders are discharged.

3. That until further order, the mother have sole parental responsibility for the children J born … May 2001, T born … December 2002 and R born … December 2004.

4. Until further order, the children live with the mother.

5. Until further order, the father spend time with the children as follows:

   (a)on each alternate weekend commencing on 8 February 2013 from the conclusion of their school day and from their school until 5.00pm on the following Sunday afternoon whereupon they shall be returned to the Town C Landmark D to the mother or her agent; and

   (b)for four days in the first and second term school holidays from the conclusion of school on the last day of the term until 5.00pm four days later with the commencement occurring at the school and the conclusion at the Town C Landmark D.

6. That until further order, the mother be restrained by injunction from being at the school at the time that the school day is concluded for the purposes of these handovers.

7. That the father return the children to the mother if he is not able to be in attendance at any time during the alternate weekends or school holidays.

8. That the father contact the mother at a telephone number to be provided to him if he has to return the children early.

9. That each of the weekend periods pursuant to these orders is suspended during school holidays and shall resume on the first weekend after school resumes in the term.

10. That the father be restrained by injunction from consuming any alcohol from the moment that the children are in his care until he returns them to the mother’s care.

11. That a copy of the reasons to be delivered concerning these orders be provided to family consultant Ms B.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cattini & Hunt 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 MELBOURNE

FILE NUMBER: BRC 9573  of 2010

Mr Cattini

Applicant

And

Ms Hunt

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These are the reasons for making the interim parenting order which I did on Friday 1 February 2013.

2. This case has had previous orders and judgments, the most recent of which was on 23 January 2013 when I ordered that the father spend time with the children J aged almost 12, T aged 11 and R aged 7. I relisted the proceedings to hear final submissions about the future parenting orders but also to see whether the January orders had been successful.

3. Each party was represented by counsel and filed a further affidavit as to what had happened in the intervening days since the January order. The father viewed the time as having been successful, the mother said that the children had reported being very unhappy about the time and in fear of their father, not wanting to go back.

4. The father also filed an affidavit by his brother but it added little to the picture.

5. The Independent Children’s Lawyer had no new objective evidence and made submissions based upon what each party had said was the outcome.

6. The positions of the parties in this case have fluctuated wildly since this Court became involved and those may be seen not only in the documents but in the reasons I have previously given for the orders made. I have been openly critical of the state of the evidence and I again expressed concern about the approach of the father.

7. This case has to be seen in the context of a family consultant’s expert view that these children should be removed from the mother and placed with the father. That theme has remained constant in the consultant’s evidence which has spanned 12 months. The reason why I reject the advice as to the outcome is that I have little confidence that the father has the capacity to fulfil all of the requirements needed to parent these particular children. It may be in the fullness of time that may change but on the evidence set out below, I currently do not have that confidence. To complicate matters further and notwithstanding the father sat through at least two hearings where the family consultant gave evidence, his counsel expressed the view that his client was satisfied with the proposal of the Independent Children’s Lawyer. That was at odds with the recommendation of the family consultant which was the immediate removal of the three children for a period of about 2 months.

8. The Independent Children’s Lawyer proposed that there be a review period after the second school term holidays and that until then, the father care for the children each alternate weekend from after school on the Friday until the commencement of school on the Monday. In addition, he said there should be an equal sharing of the children during the school holidays for terms one and two. As indicated earlier, having heard it, the father “adopted” that position.

9. Notwithstanding that in January, the mother suggested that there should be time but that its commencement be delayed, at this hearing, she proposed that until such time as the father had dealt with his alcohol “issues”, attended a parenting program and sorted out the hygiene questions in his home, any time should be supervised at a contact centre.

10. As I indicated in discussion, I rejected all of those proposals and my reasons are as follows.

11. I do not intend to canvas the history of this case. That can be seen from previous written judgments. Suffice to say, there were serious allegations of violence made against the father and equally serious questions raised about the mother’s parenting capacity despite an absence of concern expressed by the Department of Human Services.

12. I have also previously set out the evidence of the family consultant and her concerns about the mother and lack of concerns about the father. There was also evidence from a psychiatrist who expressed concerns about the mental health of the mother.

13. I intend to approach this case from the perspective that I have expert evidence from the family consultant to say that there should be a relationship between the children and their father notwithstanding the open opposition of the children. The difficulty lies in making any form of relationship work. The mother’s proposals of a contact centre would not assist in determining whether the father is a risk to these children nor would sending him to attend a variety of courses assist either. Whilst self-help courses are important, I am not at all clear in this case what they would or could achieve.

14. On 23 January 2013, I ordered that the three children who had been brought to the child minding facility of the Court leave it with their father at a time when the mother had already left. That order was made over opposition of the mother. The order provided that the children were to be returned to the mother a few days later but that if a sibling of the three children was not with them for the entire period, the oldest of the three children was to be returned to the mother. Even that did not occur and the circumstances about why that sibling was not present left me concerned. In addition, I ordered that if a child became inconsolable, he or she was to be returned to the mother. The father said that problem did not arise.

15. On last Saturday, the three children were returned by the father to an unknown male friend of the mother who was accompanied by another sibling of the children.

16. At the hearing on 1 February, I gave each party an opportunity to cross-examine the father about what he said had occurred and to submit what should occur thereafter. There was consensus that the Court could not at this stage, make a final parenting order.

17. What follows is the evidence of the parties as to what occurred in the intervening period.

18. The mother relied heavily upon what she said the children told her. She said that when they were collected at the conclusion of the contact, they were tired, pale, crying, unkempt and wearing dirty clothes. She said they told her the time was “horrible” and they were exhausted. They explained that the house was dirty, there was no food in the house but “hot dog” sausages, they did not brush their teeth for three days, slept in makeshift bedding in the lounge room, had to have the father buy them clothing but he did not buy underwear, that one child had a blood nose and vomited and that the father drank “Jim Beam” from a bottle and later drove them in a car.

19. Importantly, the orders I made were (in part) conditional upon the attendance of a 16 year old sibling of the children named N. The mother said that N told her that he had refused to go to the father’s house.

20. It is timely to remark that this evidence was not tested in cross-examination and that, leaving aside the issue of how the clothing of the children smelled and looked and their obvious signs of tiredness, it was a second hand version of what occurred.

21. Unsurprisingly, the father had a very different version in relation to which, he did submit himself to cross-examination.

22. He said that although the children were reticent when he collected them from the Court, they settled and the things about which they complained did not occur.

23. In a chronological narrative, the father set out what he did each day and how the children dealt with things. At paragraph 11 of his affidavit, he set out the bedroom and sleeping arrangements and, having regard to the chronological narrative, the inference was that the children were bedded down accordingly. However, it was only in the witness box that it emerged that the mother’s version as relayed to her by the children about sleeping on the floor of the lounge room emerged as correct. When asked why the children slept there, he said that he let them decide so that if they wanted to, they could be together. That was inconsistent with the inference in the affidavit. I bear in mind that a lawyer drew this affidavit.

24. The father also said that he “became aware” that N could not attend so he contacted the mother’s solicitor and explained that J was not distressed so he could stay. Leaving aside that being contrary to my orders, it was only in cross-examination that a different (perhaps a more comprehensive) picture emerged. The father said that before the orders were made, he spoke to N’s father and was told “sure, we’ll come around”. That was the basis upon which the father exuded confidence that N would be available. The father said that having returned home, he again spoke to N’s father who said that N had arrived home from work, was tired and had gone to sleep but he would come to the father’s home later. When that did not occur, the father said he rang for a third time only to be told that N did not want to come around because he was afraid it might affect his relationship with the (and his) mother. It was put to the father by counsel for the mother that he had misled the Court. I am not convinced that was so but the events thereafter do not give me much confidence in the husband as a responsible person. None of that picture was portrayed in the affidavit and it was only when cross-examination occurred that the full story emerged. Thus, I have little confidence in the father’s evidence. That is all the more significant because of two things. First, I have consistently urged the father to put proper evidence before the Court to support a proposal that might resemble the recommendations of the family consultant. The father failed to do so notwithstanding he was represented by a lawyer. Secondly, the father’s credit has always been in issue and he must have known that the hearing was going to be an examination of how the short contact had worked.

25. Much was made by the mother about the father’s drinking so there was cross-examination on that point. The father denied that he drank at all but then endeavoured to explain that he was simply a social drinker and did not have a problem. I was conscious that the mother had alleged alcohol was a factor that concerned her. It so concerned her that it was a matter that came to the attention of the psychiatrist who examined the father. To the psychiatrist, the father said that he had a conviction for drink driving in which he had lost his licence for 6 months. To the Court he minimised the seriousness of the issue by saying that it had been ten years before. It did him no credit to say that he had drunk wine and waited until he thought he was okay but in any event, the mother was with him and J was a baby. He failed to see the significance of the fact that as a “P” plate driver, he was required to have a “nil” blood alcohol level. Despite the fact that counsel for the mother endeavoured to be critical of the father for this apparent irresponsibility, it was not lost on me that the mother went with him in the car at the time.

26. For a “social drinker”, the father told me that what he had told the psychiatrist about drinking 24 beers and a bottle of spirits had occurred early in the year last year. The inference I drew from that evidence was that it had been some time before the psychiatric examination and things had changed. However, when examined closely, the examination was on the Tuesday of a week just two days after the weekend when this drinking occurred. He explained that it had been shared with his then girlfriend and by the time one took into account the fact that not all the spirits was drunk, he had not had much to drink at all. This was in the context of an allegation by the mother as expressed to her by the children that the father had cans of “Jim Beam” in the house. The father’s evidence about all of this was most unsatisfactory and gave me great cause for concern about his level of responsibility bearing in mind that there were allegations made against him and he was endeavouring to rebuild a fractured relationship with three resisting children.

27. Having expressed that negative impression, I must acknowledge that there was also evidence to show that on a number of matters, the father was “child focussed”. Consistent with what I said in my previous reasons, the father has made a significant start but the duration of his time with the children leaves me uncertain.

28. On the best evidence I have, there has been a good start to the reintroduction of the children to their father and that should be continued. There is not sufficient evidence for me to require a supervised arrangement because that would not be ideal for the children nor test any of the parenting criticisms made by the mother. On the father’s evidence, the experience with the children and for them was good. It needs to continue.

29. I am concerned that the Independent Children’s Lawyer’s proposal would have the children returning to school without their mother knowing what has happened to them and indeed, whether they are properly dressed and prepared. The solution to that is to return them on the Sunday afternoon.

30. Similarly, half of the school holidays at this stage is too long bearing in mind the evidence of both parties. I think 4 days seems to be about the limit of the children at this stage.

31. All periods can be reviewed later in the year after two school terms and two lots of holidays.

32. I was also urged to make an order for another family report but I declined to do so on the basis that the evidence needs to be clear first. The family consultant will only have limited information to work with and it seems to me that the parties should set out how they have perceived the success or otherwise of the arrangements. These reasons should be given to the family consultant.

33. I also have a very clear statement by both parties that they do not want the other to know anything about how and where they are living. The father began his evidence saying that he did not want his address known. This is the address at which the father would have the children live and about which the mother said there were criticisms of the father’s hygiene. The mother too would not provide her telephone number for communication by the father even in circumstances where the children might need to be brought back early. An intermediary is apparently a solution but the position of each party means that even if it was appropriate to contemplate an order for equal shared parental responsibility, I could not find that it was in the children’s best interests because the parents have no concept of communication and could not comply in any way with the requirements of s 65DAC of the Act.

34. I have previously set out the requirements of Part VII of the Act and will not repeat them. I have again contemplated all of those requirements and made my findings within the shadow of s 60B, S 60CA and S 60CC.

35. In my view, these orders are in the best interests of these children.

36. I also record that despite my reticence, I have made an order that the father not consume any alcohol when he has the children. I doubt the efficacy of such an order but at the urging of all parties including the father, I have made the order.

I certify that the preceding Thirty Six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 February 2013.

Associate: 

Date:  4 February 2013