Domizia and Cappella

FAMILY COURT OF AUSTRALIA

DOMIZIA & CAPPELLA

[2009] FamCA 537

FAMILY LAW – CHILDREN – Best interests

APPLICANT:

Mr Domizia

RESPONDENT:

Ms Cappella

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

11321

2007

DATE DELIVERED:

27 February 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

27 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Ms P. Leslie

SOLICITOR FOR THE RESPONDENT:

Kenna Teasdale Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER

Mr J. Bult

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER

McClusky’s Lawyers

Orders

IT IS ORDERED BY CONSENT OF THE MOTHER AND INDEPENDENT CHILDREN’S LAWYER AND NOT OPPOSED BY THE FATHER:

That all previous Orders including the Order appointing the Independent Children’s Lawyer be discharged.
That the mother have sole parental responsibility for the care, welfare and development of the child … Domizia born … February 2003.
That the said child live with the mother.
That the father be restrained from spending time or communicating with the said child.
That the child … DOMIZIA be now known as … CAPPELLA and it is requested that the Registry of Births, Deaths and Marriages be requested to give effect to this change in name.

IT IS ORDERED:

That the independent children’s lawyer serve a sealed copy of this Order on the husband’s solicitors.
That the reasons for judgment of this day be transcribed and that copies be made available to the parties.
That all outstanding applications are dismissed and the proceedings are removed from the Active Pending Cases List.
That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11321 of 2007

MR DOMIZIA

Applicant

And

MS CAPPELLA

Respondent

REASONS FOR JUDGMENT

(ex tempore)

This matter comes before me in the Magellan duty list.
The proceedings between Mr Domizia, the applicant father, and Ms Cappella, the respondent mother, are sought to be finalised in the terms of minutes of orders to which both the mother and the independent children's lawyer consent and which are not opposed by the father.
There is no appearance by or on behalf of the father today. He is incarcerated in prison. On 11 February 2009, a notice of discontinuance was filed on his behalf purporting to discontinue an application for final orders filed on 11 October 2007.
Ms Leslie, solicitor, appears for the mother. Mr Bult is the independent children's lawyer and is at court. The father was called at the door of the court and there was no appearance by or on his behalf.
The proceedings concern the parties’ son, born in February 2003. He is six years of age.
The proceedings were commenced by the father filing an application on 11 or 12 October 2007 in the Federal Magistrates Court seeking parenting orders. The mother's response was filed on 28 February 2008. In the meantime, the father had filed an amended application on 30 January 2008. Notwithstanding the discrepancy in dates, I regard the father as having withdrawn his amended application and currently having no application before the court.
The mother and father commenced a relationship in 2000 and separated in 2006. The father had three children from a prior marriage who reside with their mother.
The relationship between the mother and the father in this proceeding ended following charges against the father in respect of the mother's three daughters from her prior relationship. The allegation was that the father had abused the mother's daughters from approximately 2002 until the parties' separation in 2006.
There is one child of the mother and the father and that is the subject child. The parties separated when the child was approximately three years old.
This matter was accepted into the Magellan list of cases following the mother filing a notice of risk of abuse on 28 February 2008. Subsequently a report was received from the Department of Human Services dated 14 May 2008. At that time the father had been charged but not convicted of any offence. The report from the Department of Human Services (DHS) did not identify any specific protective concerns with respect to allegations of abuse of the child. The DHS report did proffer the view that it would be inappropriate for any time to be spent between the child and the father pending the trial, or into the future, on the basis that:-
a)the child did not identify the father as his father in a psychological sense and,
b)any time spent between the father and the child would necessarily impact upon the child’s care and connectiveness with his family.
In approximately November 2008, the father was convicted of various offences and sentenced to 12 years' imprisonment with a minimum of nine. It is thought he would be eligible for parole in approximately 2016. There was an appeal pending regarding his sentence. I am not informed about the outcome of that appeal.
In February 2009, Ms H, family consultant, prepared a report. I have read the report. It is comprehensive and very well reasoned. Ms H saw the child, the mother, the child’s sisters and attended an interview with the father at the prison on 22 January 2009. She also had reference to various items of documentary evidence which is in the possession of the court.
As indicated, the report is comprehensive. Ms H concludes as follows:-
43.[The child] aged nearly six is at the centre of a dispute before the Court concerning what communication, if any, he should have with his father, Mr [Domizia], who pled guilty to a number of charges involving the sexual assault of [the child’s] sisters. He was sentenced to 12 years in prison and is due for parole in 2016. [The father] seeks for [the child] to stay connected to him via letters and photos. [The mother] and her daughters are in a difficult process of trying to recover from [the father’s] behaviour and [the child] is the focus of the tension between these two positions. [The child] is clearly very closely attached to his mother and older sisters and they enjoy loving and warm relationships with each other. [The child] does not appear to know who his father is or have any recognition of [Mr Domizia] and this, along with other significant factors, remains a major barrier to [the father] communicating with his son.
44.To date, information from Mr [C’s] report suggests that [the father] remains at risk of reoffending and there is no information to suggest that [the father] has any insight into the impact of his abuse on [the child] or his sisters. That he cannot articulate his thoughts in relation to their experience of him is indicative of someone not able to reflect on the impact of their crimes and is more consistent with the type of cognitive distortion and denial required to perform violent acts of a sexual nature on children. There is no indication that [the father] has any real empathy for the victims of his crimes and he is not able to understand that [the child’s] wellbeing and protection is inextricably linked to that of his sisters and mother. The Family Consultant assessed that [the father] presents as a significant risk to [the child’s] wellbeing.
45.[The father’s] proposal of [the child] receiving letters and photos from him at the age of 5 ½ without any input or influence from those around [the child] also highlights the compartmentalisation featured in [the father’s] relationships with his wife, [the mother] and [the child’s] sisters. The dynamics present in his reported relationships are tightly controlled to meet his needs. That each of [the child’s] sisters had no knowledge that the other was being simultaneously abused requires considerable manipulation and control. That he maintained a marriage and an ongoing intimate relationship with [the mother], keeping each separate and “functional” requires a high degree of forethought and dishonesty. Placing [the child] at the centre of those dynamics exposes him to [the father’s] distorted thinking and behaviour around relationships and there is a very real risk that [the father] will attempt to isolate [the child] from his family. [The child] is not old enough to understand these patterns or have the necessary self protective skills to discern, particularly in the context of communicating with someone who on the surface, [the child] may feel a pull toward.
46.[The child’s] capacity to recall his father and/or carry a memory without ongoing face to face contact is limited by his age, the absence of [the father] as a permanent figure in his life pre disclosure and the lack of ongoing communication and awareness post disclosure. His mother and his sister’s reports appear to be accurate and on the available information [the child] has no recognition in relation to [the father]. This lack of recognition is encouraged by his mother and sister by omission. [The father’s] name is not mentioned in the home and there are no photos or reminders of him. In view of the family’s early stage of recovery, this would seem appropriate however some information for [the child] will be required and [the mother] was assessed to have the necessary skill to separate her own experience of [the father] from that of [the child] and provide him with information that meets his needs. To date she has demonstrated this by not exposing [the child] to her views of his father. The restraint on her part and that of [the child’s] sisters deserves recognition.
47.The trauma experienced by the girls as a result of being violently sexually abused by [the father] remains very real, it is at the forefront of their minds and still largely drives the modifications of their day to day behaviour. They remain fearful he will take [the child] away and they are unable to hear his name. Their responses to the abuse will intensify and modify over time particularly at significant moments developmentally. They need to recover from what has occurred and control how and when [the father] enters their world. Forcing [the father] into their lives at this point, however distant, is not a proposition they can be expected to join around. Allowing [the child] to share [the mother’s] surname may also afford some protection to [the child] and his sisters, particularly as he enters the more public arena of school.
48.[The father’s] proposal clearly requires the active support and cooperation of [the child’s] mother. Her stated position is that she is not able to cooperate with any proposal that is driven by [the father] and concerns the children. [The mother] is trying to demonstrate to her children that she is protective and will not ensure that their safety is compromised in future. No doubt she is also being assessed by those around her who are looking to ensure she remains a highly protective parent. Permitting [the father] to communicate with [the child] may also compromise [the mother’s] protective capacities and destabilise her psychologically.
49.It may be more appropriate for the issues before the court to be reconsidered when [the father] has been paroled and has completed the sex offender treatment program. This would certainly provide some, although not all, clarity around the risk he poses to children. By that stage [the child] will be around 13 years old and this would seem like an appropriate time to consider whether he wants to explore a relationship, if at all, with [the father]. If that does occur it must be driven by [the child], who would have developed some sense of his own identity by then.
Ms H’s recommendations are that the mother have sole parental responsibility for the child; that the mother seek professional assistance in how, when and how much information she should share with the child about the father; that consideration be given to the child’s family name being changed from Domizia to Cappella; and, that the child spend no time or communicate with the father.
The guiding principles under the legislation are that children should have a meaningful relationship with both parents and that children require protection from physical and psychological harm. When deciding what parenting orders to make, it is the best interests of the children which are the paramount consideration. That is the test in relation to residence, time spent with a parent or the use of a family name. There is a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility. However, the presumption can be rebutted if:-
c)the court finds that equal shared parental responsibility would not be in the best interests of the child; or
d)that a parent has engaged in child abuse or family violence.
In this case, I am satisfied that the presumption is rebutted for both of the above reasons.
This is a court of private law. The father has discontinued his pending application. He does not seek to be heard today. I am satisfied that the father has notice of the orders which are sought. They are in the terms of the mother's response to an application for final orders which was filed in this court on 28 February 2008, at which time the father was legally represented in these proceedings.
I am satisfied that it is in the child’s best interests that orders are made in the terms of the minutes to which the mother and the independent children's lawyer consent. The minutes include that the mother have sole parental responsibility for the child and the child remain living with the mother. The minutes also provide that the child’s family name will be changed to Cappella which is the name used by the mother. I have considered the benefit to the child of having a meaningful relationship with the father.
I am satisfied that any psychological relationship between the child and the father would likely be to the child’s detriment rather than benefit and that will be the case into the foreseeable future. The father does not contend otherwise.
I am satisfied that all of those orders are in the child’s best interests, as is the fact that the proceedings can now be concluded.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate:

Date: 19 June 2009

[2009] FamCA 537

27 February 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Remedies

Procedural Fairness