Defazio and Defazio and Anor

[2020] FCCA 2957

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEFAZIO & DEFAZIO & ANOR [2020] FCCA 2957

Catchwords:
FAMILY LAW – Parenting – interim hearing – two children aged 5 and 3 years – where the children currently live with each of the parents on a four-day about arrangement with the father’s time supervised by the paternal grandparents – where the mother seeks for the children to live with her and spend time with the father each alternate weekend supervised by the paternal grandparents – where the father seeks for the children to continue to live in a four-day about arrangement without the requirement for his time to be supervised – where the paternal grandparents seek for the children to live with each of the parents on a week-about basis without supervision - where the parties agree that the mother does not pose a risk to the children – where there are significant concerns regarding the father’s mental health and issues relating to family violence – interim orders made as proposed by the mother.

Cases cited:

Goode & Goode (2006) FLC 93-286

Deiter & Deiter [2011] FamCAFC 82

Applicant: MS DEFAZIO

First Respondent: MR DEFAZIO

Second Respondents: MR B DEFAZIO & MS C DEFAZIO

File Number: ADC 1335 of 2020

Judgment of: Judge Kari

Hearing date: 12 October 2020

Date of Last Submission: 12 October 2020

Delivered at: Adelaide

Delivered on: 12 October 2020

REPRESENTATION

Counsel for the Applicant: Ms Dickson

Solicitors for the Applicant: Barnes Brinsley Shaw Lawyers

Solicitors for the First Respondent: Ms Sabou of Stanley & Co Lawyers

Counsel for the Second Respondents: Ms Tinning

Solicitors for the Second Respondents: Lee Kelly Legal

Counsel for the Independent Children’s Lawyer: Mr Lewis

Solicitors for the Independent Children’s Lawyer: Legal Services Commission of South Australia

ORDERS

1. That paragraphs 2, 3, 4, 5, 6, 7, 9, 10, 11 and 12 of the Orders made on 2 June 2020 be discharged.

2. That until further order the children X (born in 2015) and Y (born in 2017) do live with the mother.

3. That until further order the said children shall spend supervised time with the father:

   (a)Each alternate weekend from the conclusion of school or child care on Friday (or 3:30pm if a non-school day) until the commencement of school or child care on Monday (or 9:00am if a non-school day) commencing 23 October 2020 PROVIDED HOWEVER that during the school holidays the time shall commence at 10:00am on Friday and conclude at 4:00pm on Monday.

   (b)Each intervening week from the conclusion of school Thursday and in respect of Y from 2:30pm until the commencement of school or child care on Friday or (8:40am if a non-school day) with such time to commence on 15 October 2020 PROVIDED HOWEVER that during the school holidays the time shall commence at 10:00am on Thursday and conclude at 4:00pm on Friday SAVE AND EXCEPT that on 25 December 2020, time shall conclude at 11:00am.

4. That the father’s time with the children at all times be supervised by the paternal grandparents or the paternal aunt Ms D NOTING that the father is required pursuant to his bail conditions to be in his home at Suburb E between the hours of 10:00pm and 6:00am each evening.

5. That the father be restrained and an injunction is granted restraining the father from spending time with the children at the home of his partner, Ms F at G Street, Suburb H.

6. That all handovers take place at the children’s school or child care SAVE AND EXCEPT:

   (a)That handover for the child Y at 2:30pm take place at the Suburb J McDonalds;

   (b)That handovers on a non-school day take place at the commencement of the father’ time at Suburb J McDonalds and at the conclusion of the father’s time at the McDonalds on the corner of K and L Streets.

7. That paragraph 5 of the Orders made on 21 July 2020 be discharged.

8. That the parents be restrained until further order and an injunction is granted restraining each of them from:

   (a)Cutting or shaving their hair to less than 2 inches in length or bleaching his/her hair;

   (b)Using any chemicals or treatments on her/his hair other than commercially available shampoo and/or conditioner.

9. That no later than 7 days prior to the adjourned date the paternal grandparents file and serve any Amended Response for final orders.

10. That the parties and their legal representatives attend a Family Dispute Resolution Conference at the Legal Services Commission of South Australia on 9 February 2021 at 9:30am.

11. If the parties are seeking legal aid funding to attend at this conference, the solicitors for the parties do forward a request for an extension of funding to the relevant assignments officer at the Legal Services Commission of South Australia within 24 hours of the date of this Order.

12. The solicitors for the parties each forward to the Legal Services Commission of  South Australia, Family Dispute Resolution Unit, within 7 days of the date of this Order the following:

    (a)A copy of the said Order; and

    (b)The contact details of their client (including current postal and telephone details).

13. The solicitors for the parties each forward to the Legal Services Commission of South Australia, Family Dispute Resolution Unit, at least 28 days prior to the date of the Conference, a copy of all documents filed with the Court on behalf of their respective clients.

14. That no later than 7 days prior to Family Dispute Resolution Conference both parties provide to the other of them (include the Independent Children's Lawyer if there is an Independent Children's Lawyer) a memorandum of the specific Interim (if relevant) and Final Orders upon which they intend to commence their negotiations at the Family Dispute Resolution Conference.

15. That the proceedings be listed for Mention only to 10:00am on 2 March 2021.

IT IS NOTED that publication of this judgment under the pseudonym Defazio & Defazio & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1335 of 2020

MS DEFAZIO

Applicant

And

MR DEFAZIO

First Respondent

And

MR B DEFAZIO & MS C DEFAZIO

Second Respondents

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings come before me in relation to the parties' two children: X, born in 2015, who is five and a half years of age, and Y, born in 2017, who is three years of age. 

2. The proceedings commenced before me not all that long ago, when the mother filed her Initiating Application on 3 April 2020.  The proceedings were commenced by the mother shortly after the parties separated and within weeks of the same, the parties having separated on or about 15 March 2020.

3. The parties were in a relationship from 2012, when they began living together, and they married in 2013.  At the time that the parties separated on 15 March 2020, the father retained the children in his care and there was an incident of family violence. 

4. On or about 16 March until 21 March 2020, the father was admitted to the Region M Centre. 

5. On or about 28 March, there was an alleged assault involving the parents.  That alleged assault resulted in an interim intervention order being made, naming the mother as a protected person.

6. That incident occurred on the expressway.  The mother says that she had been followed by the father, after returning the children to the father at the paternal grandparents' home.  She says that the father followed in his car and there was a discussion between the parties over their pet animal.  The mother says that she pulled over on the expressway and that the father chased her around the vehicle.  The mother says that she flagged down an ambulance and that police ultimately attended and the father was charged with an assault upon her.

7. When the mother filed her Initiating Application, she did so on an urgent basis, seeking the delivery up of the children.  The proceedings have proceeded before me since that time and, as I indicated to the parties during the course of the hearing today, in its short life, there is now voluminous affidavit material before the Court and the Court file is now some two volumes.  A significant focus of the affidavit material between the parties has been in relation to their lifestyle and their sexual preferences.

8. There is much in dispute between the parties around that topic.  From the mother's perspective, she asserts that the father was coercive and controlling of her and that he forced her into having an alternative sexual lifestyle with him that involved swinging and multiple partners, together with use of drugs and, at some point, alcohol.  The father, for his part, denies that he forced the mother into any such behaviour.  He asserts that the mother consented at all times from his perspective and that from his perspective their lifestyle was consensual.  He deposes that he was blindsided by the parties' separation. 

9. The mother also deposes that the relationship was punctuated by family violence in relation to the parties' sexual lifestyle.  She says that the father would punish her, if she did not engage in sexual acts that he was wanting her to engage in.  They are not matters that I am able to determine at this stage. 

10. As I have long said to all of the parties in these proceedings, the sexual predilections of the parties are not matters with which the Court is necessarily concerned.  Those matters only become a concern to the Court if, and only if, there is a risk of harm to the children.

11. While throughout these proceedings there has been much deposed by all of the parties, and it continues to be so, as to the parties' sexual lifestyle, what is now implicit and has been made explicit by the submissions made on behalf of the father and the paternal grandparents is that neither of them are concerned, given the injunctions that already remain in place for both parents, that the mother poses a risk to the children as a consequence of her sexual preferences.  That must also be said with respect to the paternal grandparents' attitude towards the father's sexual preferences and lifestyle, given the orders that they now promote.

12. The issue in dispute before me today is what orders should be made for the children's living arrangements on an ongoing basis. 

13. From the time that these proceedings have been before me, the parties have been able to reach agreement about the children's arrangements.  Indeed, I was provided with an order that I made by consent on 20 April 2020 that provided for the children to live in a four-day about shared care arrangement between the parents.  That came about as a consequence of an informal conference that had occurred.

14. What I now understand is that that conference occurred in circumstances, which the father deposed in his affidavit filed on 29 May 2020, that the paternal grandparents engaged in that informal conference on the father's behalf. 

15. What I also understand is that some three days prior to that conference, there was a serious mental health episode involving the father.  That occurred on 17 April 2020, and as I understand it, and there appears to be no dispute, that the father attempted suicide on that occasion, that he was admitted to the N Hospital and ultimately moved to O Hospital and that the father sent the mother a concerning video regarding suicide through social media.

16. As a consequence of what unfolded on 17 April, which was not known to the Court when the orders were made on 20 April, ultimately the paternal grandparents were joined as parties to these proceedings and ultimately, again by consent, orders were made for the children to live on the same four-night rotation between the mother and the paternal grandparents.  Those orders were made on 2 June 2020. 

17. At that juncture, and it may be an issue for another day now, the paternal grandparents advanced a position that they were not aware of the full extent of the parties' lifestyle choices and the children's exposure to those choices and that was why they were coming forward, when they did, to intervene in these proceedings.

18. The orders made on 2 June 2020 for a four-day-about arrangement are the arrangements that continue to be in place for these children.  Those orders also provided for the father to spend time with the children, supervised by the paternal grandparents, on the weekdays after school until 7.30pm and for a period of eight hours during the weekends, when the children were in the care of the paternal grandparents. 

19. The matter next came before me on 21 July 2020 and I made very extensive orders that day, so as to progress the matter firstly towards a section 62G report, but also towards today's hearing, so that I could determine the interim-living arrangements for these children.  The mother's position, lest it not be clear, has always been that the children return to her primary care. 

20. For today's purposes, the positions of the parties are as follows.  The mother says that it is now time for the children to live primarily with her.  She advances a position that the children spend time with their paternal grandparents each alternate weekend, from the conclusion of school on Friday until the commencement of school on Monday and in each intervening week from the conclusion of school Thursday, or 2.30pm for the child, Y, until the commencement of school at 8.40am on a Friday.  The mother says that the father can spend as much time with the children during the time they are with their paternal grandparents.  I think it is fair to say as a consequence of discussions between the bench and the mother's counsel that the mother's position is effectively that the father's time be as I have just summarised, but that at all times it be supervised by the paternal grandparents.

21. A significant factor in that matrix is that the father is currently subjected to a bail agreement which requires him to be in either his home or the home of his current partner between the hours of 10.00pm and 6.00am.  The mother says that in those circumstances and given the infancy of the father's new relationship and that the children do not know his new partner, it would not be appropriate at this juncture for the children to be introduced to the father's new partner and for time to occur in her home. 

22. As a consequence, the mother says that the overnight time spending period must take place in the father's residence, which is the former matrimonial home and she acknowledges that the paternal grandparents have indicated that they are prepared to continue to supervise the father's time and to sleep at the father's home if the Court considers that arrangement and supervision is appropriate. 

23. From the father's perspective, he advances a continuation of the current four-day-about arrangement, but that the arrangement take place as and between the parents, and by that I mean that there be no orders for the children to spend time with the paternal grandparents.  The father's position is that neither parent presents a risk to the children and that there is no need for his time with the children to be supervised. 

24. The position of the paternal grandparents is, to some degree, in support of the father.  Their primary position is that there be a week-about arrangement, but they assert that in the alternative, if the Court is not prepared to move to a week-about arrangement, then they advance a continuation of the four-day-about arrangement as and between the parents in the terms promoted by the father.

25. The paternal grandparents, however, say that if the Court considers that supervision of the father's time is necessary, then the orders as currently in place should remain; namely, the four-day-about arrangement as and between the mother and the paternal grandparents, with the father at liberty to spend time in accordance with those orders with the children when the children are in the care of the paternal grandparents.

26. The position of the Independent Children's Lawyer (‘ICL’) today is that the ICL supports the grandparents stepping away from the arrangements and that the time progress between the parents.  The ICL's view, reluctantly, is to support the ongoing four-day-about arrangement, particularly in circumstances where a section 62G report has been ordered and is due for release on 11 December 2020.  The ICL acknowledges that the four-day-about arrangement is disruptive and that it is not the optimum or the arrangement that the ICL is likely to support in the long term, but says that there should not be significant changes between now and the release of the report.

27. Having said that, the ICL's view is that the mother does not pose a risk to the children and that if the Court was minded to consider the mother's proposal, then that would be one that the ICL supports;  namely, that the children move into the mother's primary care.  The ICL is also clear that the concerns in relation to the father pertaining to his mental health, alleged drug use and family violence are not ones at this juncture which the ICL considers requires there to be ongoing and long-term supervision.  The ICL however does not go that far at this stage pending the release of the section 62G report. 

28. The nub of the issue between the parents today and the paternal grandparents is whether or not the father presents an unacceptable risk and/or a risk to the children as a consequence of his mental health, the family violence and/or illicit drug use.  As I say, it is the agreed position between all of the parties that with the current injunctions that are in place, the mother does not present a risk for the children.

29. When I made my extensive orders on 21 July 2020, among the raft of orders that were made were orders for the parties to undergo hair follicle testing and for the parties to obtain a psychiatric assessment from Dr P. 

30. Both of the parties have undertaken the hair follicle testing.  There is a complaint at the mother's end that the father's testing was delayed and did not take place until September.  There is an issue as to whether or not the father had a suitable length of hair for sampling within short compass of those orders being made, him having attended for testing, allegedly, on 24 July 2020 and being told that he did not have a long enough hair sample.

31. That is an issue that I am unable to get to the bottom of today, but I am concerned that there was a delay in the father presenting for testing, because, on any view, he could have presented again for testing much sooner than September when he did. 

32. Be that as it may, the more significant issues from my perspective, given the injunctions that are in place and that the testing by September of the father produced negative for all substances, the more significant issue from my perspective relates to the father's mental health and issues pertaining to family violence.

33. Significantly, they are matters which, to be fair to the father, he is addressing.  I am told that the father has been engaging with Ms Q.  Unfortunately, I do not have the benefit of a report from Ms Q at this juncture.  In addition, the father is engaging in a diversion program as a consequence of criminal proceedings with respect to the intervention order and the assault charges.  I have the benefit of a report dated 31 August 2020 in relation to the father's engagement in that program.  I will return to that report shortly.

34. As I said earlier, the additional orders that I made on 21 July 2020 were for the parties to obtain a psychiatric report from Dr P.  Both parties have done so.  I will not dwell on the mother's report, given the position of the father and the paternal grandparents is that she does not pose a risk in light of the injunctive orders that are to remain in place, other than to say that on the whole, Dr P does not raise any ongoing concerns in relation to the mother's mental health, other than suggesting that he does not believe that the relationship between the parents was as abusive as the mother has reported it to be.

1. Having said that, frankly, at this stage and in the absence of oral evidence and cross-examination of the parties, that is not a topic about which I can make findings, nor a topic about which I can accept Dr P's preliminary view at this stage.  I make it clear that I consider that to be a topic outside the ambit of that which Dr P was asked to comment about and about which he has expertise in light of the issues that he was being asked to determine and his experience and qualifications is limited.

2. Having said that, and turning to the report of Dr P in relation to the father, again, on the whole, Dr P appears to provide an opinion that suggests that the father is a safe and competent parent and that he does not show any current signs of disorder.  Much of the report from Dr P focuses on the father's history, the breakdown of the parties' relationship and the father's inability to cope with the breakdown of the relationship.  They appear to be matters that the father discussed with Dr P.  Dr P, in addition, had the benefit of having discussions with their father's treating professionals and, in particular, Ms Q with whom the father is engaged on an ongoing basis.

3. Dr P, however, did not have the benefit of the report from the intervention order program.  That, in my view, is a significant factor.  It is a significant factor, because on my reading of that report, there is a very significant concern raised and that concern relates to the father's mental health and his mental health struggles.  The father has attended eight sessions in the Diversion program at the time that this report was written, significantly, the report records that the father felt shame around his mental health struggles and that he would hide this from the mother, being the protected person.

4. There has been some significant conjecture today whether that sentence relates to a historical reporting by the father of his presentation and behaviour and attitude towards his mental health or whether it presents and records the ongoing concerns as a consequence of his engagement with the Diversion program.  As I indicated to the father's solicitor today, that is not something about which I am able to determine with any accuracy today.  It is not clear to me from the report whether it is a record of the historical concerns or whether it records the ongoing concerns as a consequence of the father's engagement in the program. 

5. In my view, because I am unable to be clear about those matters, I must err on the side of caution.  It is of significant concern to me that the father has historically attempted to hide, on his own admission, his mental health struggles from the mother, and on the basis of this report, that he may continue to do so in the future.  That extends to the father, in my view, being more inclined to paint a more positive picture around his mental health to the Court and to professionals engaged to date. 

6. Unfortunately, I do not have the benefit of Ms Q's report. Clearly, that would have given me a much clearer indication of where the father is tracking.  From my perspective, in light of those matters, and in light of the events that took place certainly in April of this year, which are acknowledged by the father, it is my view that the father does present a risk to the children as a consequence of his mental health. 

7. As the Full Court identified in the decision of Deiter & Deiter [2011] FamCAFC 82 at paragraph 61:

   The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

8. In answer to the first question posed by the Full Court in the assessment of risk, there is no doubt that a very serious mental health episode took place in April of this year.  To the father's credit, he does not shy away from those events.  To the father's credit, he is engaging both in the Diversion program and with Ms Q.  The issue, as I have made clear already, is that in the absence of two things, firstly a report from Ms Q and, secondly, a final report from the Diversion program, I am unable to be clear as to whether those factors present an ongoing risk or not and the extent to which they do.  That is why I consider it appropriate to err on the side of caution. 

9. These proceedings are nuanced by the involvement of the paternal grandparents.  The paternal grandparents, to their credit, have stepped up to the plate and provided assistance to both of these parents, not just their son, at times and throughout these proceedings when they considered it appropriate that they do so to protect the children from harm and to ensure that they are safe.  The paternal grandparents are to be commended for having done so.  The paternal grandparents' position, however, on an ongoing basis, unambiguously, is that they wish to step back from playing an active and primary parenting role for these children.

10. Curiously, however, they are only prepared to do so if the father obtains the maximum amount of time possible.  In circumstances where the paternal grandparents acknowledge that the mother does not pose a risk for the children with the safeguards in place by the injunctions, I am somewhat surprised that they are not prepared to step back now if the Court was minded to make the orders that the mother promotes.  I frankly do not understand the position of the paternal grandparents, other than to opine that it is tactically taken to ensure that the children spend as much time with the father as possible.

11. Frankly, if that is their motivation, on one level, it is unsurprising and they cannot be criticised for wanting the best outcome for their son in terms of his relationship with the children.  However, in circumstances where they do not suggest that the mother poses a risk to the children, I am struggling with a position that does not see the children move into the mother's primary care now. 

12. While I accept that there is a chance that arrangements may change again following the receipt of the family report, in my view, the time has come, in light of all of the evidence before me today, for the Court to move the arrangements to ones between the parents and to ones that the mother promotes on the basis that the father's time with the children be supervised at all times pursuant to the regime that she has promoted.

13. I have had regard to the legislative pathway identified by the Full Court in Goode & Goode (2006) FLC 93-286 and I have attempted to adopt that pathway in these reasons. While there is already an order made by consent for the parties to share parental responsibility, in my view, the orders promoted by the mother, being alternate weekends and overnight time in the intervening Thursday is certainly substantial and significant time for the father to spend with the children. It involves weekend time, it involves overnight time and it involves midweek time, enabling the father to have a meaningful relationship with the children and to engage fully with them.

NOTE: These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to make the orally delivered reasons easy to read.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of Judge Kari

Associate: 

Date: 30 October 2020