Cattini and Hunt (No. 2)

[2012] FamCA 1101

FAMILY COURT OF AUSTRALIA

CATTINI & HUNT (NO. 2) [2012] FamCA 1101

FAMILY LAW – CHILDREN - interim adjournment - change of residence refused despite advice of family consultant recommending it.

Family Law Act 1975 (Cth)

APPLICANT: Mr Cattini

RESPONDENT: Ms Hunt

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 9573 of 2010

DATE DELIVERED: 12 December 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bayliss

SOLICITOR FOR THE APPLICANT: Powell Bayliss Lawyers

COUNSEL FOR THE RESPONDENT: Ms Swart

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 are adjourned to 10.00am on 23 January 2013 for a further interim hearing.

2. That a transcript of this day’s evidence of the family consultant together with her evidence of 27 November 2012 along with my reasons for judgment this day be obtained and released to all parties as soon as practicable and the Independent Children’s Lawyer be at liberty to provide a copy of those documents to the relevant officer of the Department of Human Services.

3. That the father have leave to file and serve a further affidavit by 21 December 2012 along with any other affidavits upon which he intends to rely and upon receipt of those affidavits by the Independent Children’s Lawyer, he be at liberty to provide copies to the relevant officer of the Department of Human Services.

4. That the mother have leave to file and serve any further affidavit material upon which she intends to rely by 4.00pm on 14 January 2013 and the Independent Children’s Lawyer be again at liberty to provide copies of that material to the relevant officer of the Department of Human Services.

5. Pursuant to s 91B of the Family Law Act 1975 (Cth) the Department of Human Services be invited to intervene in the proceedings and participate and for that purpose, the relevant officer have liberty to inspect the court file and any documents produced under subpoena.

6. That on 23 January 2013, the mother bring the children to the child minding centre of this Court by 9.45am and leave them there until further order.

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. This is an application on the afternoon of what is the third day of this case involving three very young and vulnerable children.  It is sometimes said that there comes a point in this court’s function where it can do little.  This case points to a serious welfare problem, but on what I have heard today, the Department of Human Services seems satisfied that the children are being protected.  To that extent, the Department does not seem to be particularly inclined to intervene.

2. The acceptable standard of care of children for the Department is different to the one that I have to determine a case on.  Section 60CA requires me to only make a parenting order if it is in the best interests of the children that I do so.  I have serious concerns about what is happening here and how this case is progressing. 

3. The mother has not done anything to assist in the resolution of this matter.  I understand very clearly from her affidavit material what her position is.  Having today, in her absence, heard the evidence of a family consultant who has now seen this family three or four times over a space of two years, it does not leave much imagination to say that the Court has very few options open to it.  They are the same options that I canvassed on the last occasion.

4. Counsel for the mother this afternoon has requested that I adjourn the proceedings for some time to enable the Court to hear, if the Department is so inclined, some evidence to indicate just what is happening in the mother’s household.  The evidence of Ms B, the family consultant this morning, is very concerning, and were it not for the fact that I think that I have no option as to where to put the children if I remove them from the mother, I certainly probably would have.  I say that without having had the opportunity to test the evidence in any way, and in respect of that, the mother has created a problem.  On the evidence that I have heard on an interim basis, I feel that I would be less than responsible if I did not take the children from that environment.

5. The problem is that I adjourned the proceedings until today to give the father an opportunity to present a position which would give rise to the option open to me.  His evidence is minimal.  He simply says that he has a working arrangement with his employer so that he can have “the maximum time” off, and although the evidence does not say it, his counsel says from the bar table that he can have the next eight weeks off from work.  That is not corroborated by any evidence whatsoever.  I know a little bit about his living circumstances because he says he has a house with some bedrooms, and he thinks that things will settle down if the children are put into his care.  That is really optimistic.

6. These children are unashamedly, according to the family consultant, effectively parenting their mother.  Their mother is emotionally dependent upon the children, and the children, when spoken to by the family consultant, were resistant to any relationship with their father.  It would be irresponsible to give the children, even on an interim basis, to their father where there is such a resistance, no current relationship for some years, no indication as to how that changeover would go, no indication as to how the care would be provided, no indication as to whether the proposed care would be assisted by any family member.  In other words, I have no evidence as to the environment I would be putting the children into.

7. It is one thing to put children who are happy and contented into a relationship which has troubles but it is an entirely different thing to put them into a relationship where there are serious problems.  On that basis, I feel, as much as the resources of the Court are being stretched, I have no choice but to adjourn the proceedings in the hope that the Department of Human Services can provide some answers.  It may be that, as a result of the notification to the Department and what I propose to give them by way of the transcript of today’s hearing, they may remove the Court’s jurisdiction by taking the matter to the Children’s Court.  On the other hand, I can only make a plea to the Department to try and shed some light on why a very experienced family consultant is seeing things that the Department is not terribly concerned about.

8. On that basis, I propose to adjourn the matter for a relatively short period of time to January, and I do so not because that is the request of the mother but because I think this issue needs to be resolved before the children return to school next year.  If it be that they are to be removed from their mother, then I want to know what type of household they are going into and how the father would organise their schooling.  At the moment, the evidence is completely silent on those sorts of subjects.  Accordingly, I propose to grant the application of the mother and adjourn the proceedings.

RECORDED : NOT TRANSCRIBED

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 December 2012.

Associate: 

Date:  7 January 2013