Cattini and Hunt (No. 2)

[2013] FamCA 82

FAMILY COURT OF AUSTRALIA

CATTINI & HUNT (NO. 2) [2013] FamCA 82

FAMILY LAW – CHILDREN - Interim contact – urgent orders – unsatisfactory state of the evidence – mother resisting any contact – order made.

Family Law Act 1975 (Cth)

APPLICANT: Mr Cattini

RESPONDENT: Ms Hunt

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 9573 of 2010

DATE DELIVERED: 29 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bayliss

SOLICITOR FOR THE APPLICANT: Powell Bayliss Lawyers Pty Ltd

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 for final orders are adjourned to 10.00am on Friday 1 February 2013 for submissions to be made by all parties as to what further interim orders should be made pending the final determination of all matters.

2. That the children J born … May 2001, T born … December 2002 and R born … December 2004 live with the father from the moment of these orders until 10.00am on Saturday 26 January 2013.

3. That the children be collected by the father this day from the childcare centre in the Melbourne Registry of the Family Court of Australia and returned to the mother at the Town C Landmark D at 10.00am on Saturday 26 January 2013.

4. That the mother forthwith leave the Family Court of Australia building and its precincts without having the opportunity to say goodbye to the children.

5. That the family consultant Ms B explain to the children the nature and extent of these orders.

6. That the mother be restrained from having any contact with the children other than as otherwise provided by these orders.

7. Notwithstanding the orders above, if at any stage until 26 January 2013, the child N is not present in the household of the father, the child J be immediately returned to the mother by the father by arrangement organised by telephone but to the Town C Landmark D.

8. Notwithstanding the foregoing orders, if any child becomes distressed to the point that the father requires either assistance to care for them or to restrain that or any child from running away from him, that child or those children, are to be forthwith returned to the mother in the same way as the foregoing order.

9. That 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.

10. That reasons for these orders be delivered as soon as practicable.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cattini & Hunt (No. 2) 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 reasons explain the orders that I made at 5.10pm on 23 January 2013 in this parenting dispute.

2. Under those orders, I have removed the three children from their mother in circumstances where she has had a long-standing and primary care role in their lives and where their father’s role has been negligible for the best part of the last two years.

3. It is trite to say that any orders affecting children are serious but more so where the consequences of those orders even on an interim basis, are unknown and even potentially risky.  I have carefully considered the evidence in this case and am satisfied that it is in the best interests of the children that these short term interim arrangements be made.  I appreciate that this will cause anxiety for the mother, stress for the father and potentially distress for the children but I do so on the basis of the evidence before me including in particular, the evidence of the expert Ms B who is a family consultant.

4. It is not relevant for these reasons that I explain the long and unfortunate background of the case.  Suffice to say that I have given reasons in a number of instances in the past few months.  The evidence of the father has been far from satisfactory and the mother’s approach has been that the reintroduction of the children into the life of their father should be done through a counselling and therapeutic process rather than simply by court order fixing the times. 

5. It is important to note that the evidence is not in a satisfactory state to make permanent orders.  The delays have no doubt exacerbated the dilemma in endeavouring to create a relationship between the father and the three children.  The mother acknowledged that things have to change but, on the basis of the evidence of Ms B, I am not convinced that will occur satisfactorily in the foreseeable future.

6. An examination of the mother by a psychiatrist was unsatisfactory.  It would not be unkind to say that the psychiatrist was unable to do his task properly.

7. Ms B has been the family consultant involved in this case on a number of occasions and twelve months ago, when she interviewed the children, she recommended to the Court that the children be removed from their mother’s care.  Notwithstanding that, orders were made to the contrary and contact was to take place with the father.  It did not happen.

8. Prior to Christmas, orders were made for a further family report but that also did not happen because of the mother’s conduct.  Ms B gave evidence expressing frustration about trying to get to the bottom of the problem.

9. The Department of Human Services has been invited to intervene and declined to do so.  Their history with the mother in particular, has resulted in a determination that there was no protective issue.

10. Today, the children were brought to the Court pursuant to my order and they were placed in the childcare centre with the father and observed by Ms B. 

11. Ms B gave evidence that she had read the affidavit material of both parties and the Department file.  In fairness to her, she only had a cursory glance having regard to the time she had available to her.

12. Ms B said she did not interview the children but observed them at play.  She said they initially ignored their father but after five minutes they began responding to him.  At various times in the period of observation, they described him as being mean to them and a liar.  All of these complaints were consistent with what they had said over a year ago.  Interestingly, and to his credit, Ms B noted that the father diverted their attention from those complaints about him and did it successfully.

13. The major problem however occurred with the oldest child J.  She said he became upset and wanted to leave and to return to his mother.  That eventually occurred but after observing the initial distress, J was able to settle and again engaged with his father and was conversing with him.  The distress of J however returned and with it, so did the distress of the two younger children.  J then left the playroom with another family consultant and the remaining children then settled.  Those children however still made similar accusations but again, the father was able to divert those in conversation.  Ms B described the interaction between the father and those two children as good. 

14. Upon leaving the 35 minute observation, the youngest child R said to the father that she hoped he went to gaol and hoped that he died. 

15. Despite all of that doom and gloom, Ms B said that she was surprised at the changes in the children because 12 months ago they just huddled together and refused to interact.  Now there is some semblance of recognition. 

16. Ms B was conscious of the fact that J was the leader.

17. The previous evidence has been of the involvement in these children’s lives of two other children K and N.  They are not children of this relationship but they are the mother’s children.  N is now 16 years of age and is engaged in an apprenticeship.  It would appear that he has a very significant influence and the children see him as some form of security blanket.  He has a good relationship with the father and sees him irregularly.  I am not sure what N’s relationship is like with his mother but he does not live with her. 

18. Ms B indicated that if N was present, it was conceivable that the other children and in particular, J, might settle.

19. In cross-examination, Ms B was quick to acknowledge that without evidence that the father has a support system, her recommendation of a removal of the children immediately from their mother was risky.  It follows that the greater the absence of support for the father, the greater the risk.

20. Ms B initially recommended that the children be removed from the mother and that she not see them for some months.  The father was quick to pick up on that recommendation and made that his proposal.  In my view, it should be rejected.  He has not provided any serious evidence to show that his employer will give him the time away from work and thereafter keep a job and his mother was not on affidavit.  Quite inappropriately, statutory declarations were attached to the back of the father’s affidavit.  These affidavits were prepared by a lawyer.  The first declaration was by the father’s brother.  In its chatty style, it indicated that he was willing to be a witness and he portrayed the background of the father.  He described him as a reliable and competent father.  A second declaration was by the father’s sister.  It was also background material and maintained that the family was a close one.  This witness (if she was to be one) indicated that she was qualified in an education role for young children.  A third declaration was provided by a person who seems to simply know the father.  He pontificated that he did not believe that the mother was performing her role as a responsible parent and that in his view, the father should be granted custody of the children.  Lawyers who put that sort of material together and attach it to an affidavit should know better.

21. A fourth declaration was from the father’s mother.  She referred to the fact that she had been a foster parent and was well-equipped with advice and strategies to assist her son in coping with his own trials as a parent.  She believed he was capable of providing his children with a safe and loving home.  She said she had always been there to assist in any capacity.  She described herself as a very hands-on grandmother.  It would have been more helpful if that material had been put into an affidavit form and she had been present for cross-examination.

22. Ms B was cross-examined by the mother’s counsel about whether the absence of material heightened the risk and she conceded that it probably did.  I am not at all sure whether it is material that I could rely on for an interim hearing. 

23. On 23 January 2013, I heard briefly from each party’s representative.  The Independent Children’s Lawyer said that the evidence supported a short period of contact in which the children would be cared for by the father.  The father then adopted the Independent Children’s Lawyer’s position notwithstanding his affidavit indicated that the children should be removed from the mother for a period of two months.

24. Counsel for the mother eloquently put her client’s case on the basis that the mother had to and would, change and that the father could have contact for the weekend commencing on Friday 1 February 2013 and in the intervening period, the mother would encourage the children to have a relationship with him; thus, the necessary supports could be put in place.  I conclude from that concession that the mother has the necessary capacity and control to convince the children that they should spend time with their father notwithstanding his absence from their lives and the statements of complaint about him which the children made.  She was prepared to consent to an order that they spend at least two nights with the children but in a week’s time.  The crux of her argument was that she needed that time to convince the children to go with the father.  Even if that is an optimistic view of things, she seemed to have sufficient confidence to put that proposal.  That has to be contrasted with her counsel’s cross-examination of Ms B in which it was put that it was essential for these children to undergo a therapeutic program and counselling.  It is not possible to see that sort of program having any effect let alone starting before 1 February 2013. 

25. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides that an order relating to parenting issues must have the best interests of the children as the paramount consideration.

26. The issue associated with the order for equal shared parental responsibility does not arise in this case notwithstanding the mother was prepared to agree to it because this is an interim arrangement and I could not be satisfied on the evidence that I have heard, the parties could have any possible arrangement for negotiating the long-term issues associated with the children.  It was one of the proposals of the mother that the father undergo anger management.  That clearly indicates that she has no trust or confidence in him and even on the issue of where the children were to be handed over, she strongly resisted his attendance at her home and ultimately decided that the Town C Landmark D was the appropriate place. 

27. The principle of the best interests of the children is guided by the mandatory principles set out in s 60CC of the Act. Those principles consider the question of the capacity of a parent and the ways in which they have acted responsibly or otherwise. I am not in a position to make any findings nor should I in respect of this evidence. The critical question is whether or not it is in the best interests of the children that a step forward be made. The mother’s position was that that step forward should not commence until a week or more from now. Ms B’s position was that the children should be immediately removed notwithstanding the risk. She said there was a possibility that the distress will cause the children to run away. I can protect the children for the purposes of s 60CC by ensuring that in the event that their safety blanket in N is not present, at least J can be returned to the mother. In the event that the children become distressed such that the father requires the assistance of his mother, pre-supposing she is available to him, then those children should be returned to their mother. That will be difficult in any event because the mother wants the children to be handed over at the Town C Landmark D and seems to resist any personal contact with the father.

28. I am satisfied on the evidence to the requisite standard that it is in the best interests of these children that a step be taken to reintroduce them to their father.  I do not have the confidence that unless the Court steps in and forces that pace, having regard to the evidence of Ms B it will occur.  The concession of the mother that it should be delayed indicates that at least she has some confidence that she will be able to convince the children to stay.  I have directed that Ms B explain the orders to the children and that they will be returning to their mother on Saturday morning.  I will carefully examine how the next few days unfold and whether each of the parents is responsible during that period of time.

29. These are the reasons why the orders have been made.

I certify that the preceding Twenty Nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 January 2013.

Associate: 

Date:  29 January 2013