Deseo & Pavia - [2022] FedCFamC2F 769

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Deseo & Pavia [2022] FedCFamC2F 769

File number: MLC 4776 of 2021

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 15 June 2022

Catchwords: FAMILY LAW – parenting orders – interim defended hearing – orders for family therapy – mature teenage children with strong views against therapy – consideration of child expert reports and the wishes of the children.

Legislation: Family Law Act 1975 (Cth) ss 13C, 60CA, 60CC.

Cases cited:
Boyd & Sage [2020] FamCA 482

Eaby & Speelman (2015) FLC 93-654

Goode & Goode (2006) FLC 93-286

Division: Division 2 Family Law

Number of paragraphs: 82

Date of hearing: 21 March 2022

Place: Melbourne

Counsel for the Applicant: Mr S. Fuller

Solicitor for the Applicant: Rodriguez Family Lawyers

Solicitor for the Respondent: Whyte Just & Moore

Counsel for the Independent Children's Lawyer: Ms H. Bonney

Solicitor for the Independent Children's Lawyer: Victoria Legal Aid
ORDERS

MLC 4776 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS DESEO

Applicant

AND:
MR PAVIA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

15 JUNE 2022

THE COURT ORDERS THAT:
1.Until further order the children, X born in 2005 and Y born in 2007 (collectively 'the children') live with the Father, Mr Pavia.
2.The parents do all acts and things to cause and ensure the children and the parents are forthwith enrolled into, and attend and participate as directed by Dr B, Dr B's 4 day intensive family therapy program (Dr B’s therapy) and such therapy be subject to therapeutic confidentiality.
3.Further, for the avoidance of doubt, for the purpose of Dr B's therapy, the parents follow all directions of Dr B, including when and how the parents or either of them cause and direct the children or either of them, and including when and how the child Z born in 2012, attends and participates in Dr B’s therapy.
4.The cost of Dr B's therapy be paid for by the Mother in the first instance.
5.The Independent Children's Lawyer be at liberty to provide to Dr B, and any psychologist or therapist of the parents, with a copy of Dr C’s report dated 16 March 2022 and copy of these orders and reasons and such other document as Dr B requests.
6.The parties be at liberty to apply.
7.The matter be listed for a Mention Hearing on 23 January 2023 at 10.00am.

AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Deseo & Pavia

Details

AGLC: Deseo & Pavia [2022] FedCFamC2F 769
Case: [2022] FedCFamC2F 769
Decision Date: 15 June 2022

CaseChat Overview and Summary

In the matter of Deseo & Pavia, the applicant, Ms Deseo, sought an interim parenting order for the children of the relationship, X, Y and Z, to attend a four-day intensive family therapy program. The children were aged 17, 15 and 10 years old at the time of the hearing. The case was heard by Judge O'Shannessy in the Federal Circuit and Family Court of Australia. The central issue before the court was whether the court should order the children to attend the proposed therapy, despite their strong opposition to it. The court considered the expert reports of two child psychologists, Dr B and Dr C, as well as the wishes of the children. The court found that the children were of sufficient age and maturity to express their views and that their opposition to the therapy was genuine and based on valid reasons. However, the court ultimately decided that the therapy was in the best interests of the children and ordered that they attend the program. The court also ordered that the cost of the therapy be borne by the mother initially, and that the Independent Children's Lawyer be at liberty to provide the therapist with relevant reports and documents. The court made clear that the parties were at liberty to apply for further orders and listed the matter for a mention hearing. The orders made by the court reflect a careful consideration of the evidence and the wishes of the children, while ultimately prioritising their best interests.

Orders

Orders of the court

MLC 4776 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS DESEO

Applicant

AND:

MR PAVIA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

15 JUNE 2022

THE COURT ORDERS THAT:

1. Until further order the children, X born in 2005 and Y born in 2007 (collectively 'the children') live with the Father, Mr Pavia.

2. The parents do all acts and things to cause and ensure the children and the parents are forthwith enrolled into, and attend and participate as directed by Dr B, Dr B's 4 day intensive family therapy program (Dr B’s therapy) and such therapy be subject to therapeutic confidentiality.

3. Further, for the avoidance of doubt, for the purpose of Dr B's therapy, the parents follow all directions of Dr B, including when and how the parents or either of them cause and direct the children or either of them, and including when and how the child Z born in 2012, attends and participates in Dr B’s therapy.

4. The cost of Dr B's therapy be paid for by the Mother in the first instance.

5. The Independent Children's Lawyer be at liberty to provide to Dr B, and any psychologist or therapist of the parents, with a copy of Dr C’s report dated 16 March 2022 and copy of these orders and reasons and such other document as Dr B requests.

6. The parties be at liberty to apply.

7. The matter be listed for a Mention Hearing on 23 January 2023 at 10.00am.

AND THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

B. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

D. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	MLC 4776 of 2021
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	15 June 2022
Catchwords:	FAMILY LAW – parenting orders – interim defended hearing – orders for family therapy – mature teenage children with strong views against therapy – consideration of child expert reports and the wishes of the children.
Legislation:	Family Law Act 1975 (Cth) ss 13C, 60CA, 60CC.
Cases cited:	Boyd & Sage [2020] FamCA 482 Eaby & Speelman (2015) FLC 93-654 Goode & Goode (2006) FLC 93-286
Division:	Division 2 Family Law
Number of paragraphs:	82
Date of hearing:	21 March 2022
Place:	Melbourne
Counsel for the Applicant:	Mr S. Fuller
Solicitor for the Applicant:	Rodriguez Family Lawyers
Solicitor for the Respondent:	Whyte Just & Moore
Counsel for the Independent Children's Lawyer:	Ms H. Bonney
Solicitor for the Independent Children's Lawyer:	Victoria Legal Aid

MLC 4776 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS DESEO Applicant
AND:	MR PAVIA Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	15 JUNE 2022