Donato and Salvati - [2011] FMCAfam 1535

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DONATO & SALVATI

[2011] FMCAfam 1535

FAMILY LAW – Parenting – mother’s contact with child reinstated – conditional on mother continuing to see psychiatrist and abide by court orders – restrictions on grandmother’s contact.

Family Law Act 1975, Part VII

Goode & Goode (2006) FLC 93-286

Applicant:

MR DONATO

Respondent:

MS SALVATI

File Number:

SYM 7919 of 2006

Judgment of:

Altobelli FM

Hearing date:

23 December 2011

Date of Last Submission:

23 December 2011

Delivered at:

Sydney

Delivered on:

23 December 2011

REPRESENTATION

Counsel for the Applicant:

Ms Friedlander

Solicitors for the Applicant:

Kells the Lawyers

Solicitors for the Respondent:

Mr Woods

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

All previous Parenting Orders be discharged.
The Father have sole parental responsibility for the child [X], born [in] 2005, subject to the following:
(a)The Father consult the Mother about major long term decisions relating to the child but
(b)If the Father and Mother are not able to reach agreement about the same within a reasonable time frame having regard to the nature of the decision to be made, the Father’s decision will be final.
The child live with the Father.
Commencing from Term 1, 2012, the Mother spend time with the child after school each Wednesday to before school each Tuesday each alternate week.
Between now and the commencement of the school term 2012 and subject to the Orders for special time below, the Mother is to spend time with the child as follows:
(a)For the first 2 weeks after the making of these Orders from after school, or 4pm if she is not at school, each Wednesday to 4pm on Friday; and
(b)Thereafter until the commencement of the school term from after school, or 4pm if she is not at school, each Wednesday to 10am on Saturday each week.
The Mother also to spend time with the child:
(a)On Mother’s Day between 10am and 4pm if the Mother is not otherwise spending time with the child on that day;
(b)On the Mother’s birthday between 4pm and 6pm if it is a school day and 2pm and 8pm if it is on a weekend if the Mother is not otherwise spending time with the child on that day;
(c)During odd numbered years on Christmas Eve from 12 noon to Christmas Day at 12 noon and during even numbered years on Christmas Day at 12 noon to Boxing Day at 12 noon;
(d)Commencing from the Easter school holidays, 2012, for one half of each school holiday period, and if the Mother and the Father are unable to agree as to which half, during the second half of each school holiday period; and
(e)The Mother’s time with the child be suspended:
(i)In the Father’s half of all school holiday periods;
(ii)On the Father’s birthday between 4pm and 6pm if it is a school day and 2pm and 8pm if it is on a weekend when the child would be with the Mother; and
(iii)On Father’s Day between 10am and 4pm if it is on a weekend where the child would be with the Mother.
Where changeover pursuant to these Orders does not take place at the child’s school then the Mother is to collect the child from the Father’s residence at the commencement of her time with the child and the Father is to collect the child from the Mother’s residence at the conclusion of her time with the child.
The Mother be restrained from allowing the child to spend time with the maternal Grandmother MS S whilst the child is in her care.
Both parties be restrained from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative offensive or unpleasant fashion in the child’s hearing;
(b)Discussing the proceedings or the relationship between the Mother and the Father or any other party in the presence or hearing of the child or permitting any other person to do so; and
(c)Allowing any contact or communication between the child and the maternal Grandmother.
The Mother be reviewed by Dr H on a three monthly basis with the first review to be conducted no later than 23 March 2012, and with the Mother to provide Dr H with a copy of Dr K’s report dated 16 December 2011.
The maternal Grandmother Ms S is to spend time with the child for two hours per fortnight at a supervised contact centre or in another supervised setting as agreed between the parties, such time to continue until:
(a)The maternal Grandmother has caused a report from Dr K (or if he is unwilling or unable to assist, a consultant psychiatrist nominated by the Independent Children’s Lawyer) at her own cost to be written indicating the paternal Grandmother is not suffering from a psychiatric disorder, or she is being treated appropriately and the child is not at risk of emotional or psychological harm if the child spends time with the maternal Grandmother unsupervised.
(b)The report in 11. a. as above is to be provided to the Mother, the Father and the Independent Children’s Lawyer before any proposed change to the time the maternal Grandmother spends with the child.
(c)The Mother is to ensure the maternal Grandmother is to spend with the child following the report is only to be as agreed between the parties, or by Order of the Court.

THE COURT FURTHER ORDERS THAT:

The matter be adjourned to 19 April 2012 at 9:30am for mention in Sydney with the parents to whether any further Orders are needed in this case.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA

AT SYDNEY

SYM 7919 of 2006

MR DONATO

Applicant

And

MS SALVATI

Respondent

REASONS FOR JUDGMENT

Introduction

I provide the following ex tempore reasons in the matter of Donato & Salvati. By way of preamble, I note that these ex tempore reasons are being given at 1.40 pm on 23 December, and I have two other urgent parenting matters that I need to deal with this afternoon. Of necessity, these ex tempore reasons will need to be as brief as the circumstances so permit. This case is about [X]. [X] is six years old, has started school - presumably in Kindy this year and will move on to year 1 next year.
On 28 August 2009, I handed down reasons for judgment in this case. It is a 59-page, 99-paragraph judgment that sets out relevant background and history, issues and findings, all of which, I think, are quite exhaustive. I will not traverse that territory again. I believe that an appeal was filed but whether it was discontinued or dismissed, I don’t recall. In any event, the orders stand. Today, I must decide whether, and if so, how I should vary those orders in view of events that have occurred since the 2009 orders were made.
Issues have arisen about the mother’s compliance with the orders, requiring her to see a psychiatrist – and that was order 3, made on that date. Orders were also made relating to the maternal grandmother and her contact with [X] and they are referred to, as well. The mother’s compliance with order 3 was very late in coming – if indeed it can be treated as compliance. The report that is contemplated by order 3 arrived today.
The delay necessitated considerable variation to the parenting orders that were originally contemplated, albeit those variations were on an interim basis and indeed this must be the third or the fourth interim judgment that I have given in this case since the final reasons. Today, the mother proposes that the original orders be adopted, subject to some variations but, in addition, she proposes that she be restrained from allowing the maternal grandmother to have any contact or communication with [X].
The effect of the mother’s proposal, for all practical purposes, is to return to the orders I made on 28 August 2009. Her case is that, in effect, she has complied with order 3. She says that the contact that was contemplated in the orders and the reasons that should happen as such. She also agrees to obtain further psychiatric treatment. Today, the father proposes a quite substantial modification to the original orders. Thus, for example, he seeks unfettered, unconditional sole parental responsibility.
He clearly contemplates the continuation of these proceedings because he seeks an Independent Children's Lawyer. He seeks an order that the mother obtain more psychiatric assistance and in the meanwhile have limited and supervised contact with [X]. Clearly, the father does not accept Dr K’s report, to which I will shortly refer. There is a big difference in approach between the mother and the father. In effect, the mother is saying, “Let’s pick it up from the reasons for judgment back in 2009”. The father says, “No, there are unresolved problems so let’s make some changes on an interim basis.”
Much hinges on Dr K’s report. It’s dated 16 December, but apparently only became available yesterday. It is probably not strictly in compliance with order 3 made in August 2009, but I accept that in the end result it does provide the critical evidence that the court needs in order to decide about [X]’s contact with her mother. There are a number of key parts of the report that I intend to incorporate in these reasons, but rather than reading them, I will simply incorporate them via reference. I incorporate lines 79 to 85, 119 to 124, 220 to 251, and then 252 to 284.
Dr K recommends no contact with the maternal grandmother until she does certain things. There’s actually no dispute about this. The existing orders, in my opinion, adequately cope with the maternal grandmother. I will say as part of my reasons what I said during submissions, and that is that one of the great tragedies in this case is that [X] cannot have a relationship with her maternal grandmother because the maternal grandmother won’t do certain things that are required of her. That is [X]’s loss, but that is something that can be controlled by the maternal grandmother.
In relation to the mother, and that is the focus of this afternoon’s application, Dr K advises that contact should be suspended unless the court can be “absolutely sure” that [X] would have no contact with the maternal grandmother. He also recommends that the mother continue to see her treating psychiatrist, Dr H, and the mother agrees to do this.

Mr Woods, for the mother, says that the Court can be absolutely sure that the mother will not bring [X] into contact with the grandmother and proposes an order in this regard.
He submits there is little evidence to suggest that the mother has in fact done so, and that the evidence of the mother and her two witnesses do provide reassurance in this regard. Ms Friedlander, for the father, says the Court cannot be absolutely sure, as Dr K requires. The history of this matter raises concerns about this. Both the mother and the maternal grandmother’s actions or failure to act, to be more precise, in accordance with the original orders throw doubt on this.
But ultimately, when pressed, it does seem that the only evidence of [X] being brought into contact with the maternal grandmother is [X]’s own evidence, or the limited admissions of the mother herself. This is, strictly speaking, an interim application. The evidence has not been tested. The evidence advanced in the father’s case comprises of his affidavits and an affidavit of Ms M. The precise orders sought by him are contained in a minute of order provided by his counsel, which I incorporate into these ex tempore reasons.
The mother’s evidence is her affidavit and the affidavit of Mr R and

Ms H, and the precise order that she sought is contained in a minute prepared by Mr Woods, and I incorporate that into these reasons.
There can be no question that the applicable law is contained in Part VII of the Family Law Act, and that I have to make a decision that is in [X]’s best interests. The Full Court’s decision in Goode & Goode (2006) FLC 93-286 has much to say about Part VII of the Act and how it should be interpreted and how such cases should be dealt with.
It should be noted that this is a little different. The matter has a long history in my docket. I have issued several judgments and the substantive judgment after a hearing enabled me to make findings about both parents. I think one of the first issues is whether [X] has in fact been exposed to the maternal grandmother. The father’s evidence is principally what [X] says to him. What [X] says to the mother or father is inherently unreliable. Surely that must be one of the lessons of this case for the parents.
There are limited admissions by the mother about limited accidental contact and telephone communication with the maternal grandmother. But taking an objective look at all of the evidence, it would not be possible for me to be satisfied, on any standard, that [X] was deliberately brought into contact with the maternal grandmother, other than the telephone calls which even the mother proposes will cease pursuant to the orders that she seeks. I accept Dr K’s report. The mother does as well; the father is cautious about it.
Dr K says that unless I can be absolutely sure that [X] would have no contact with the maternal grandmother, then contact should be supervised. Now, “absolutely sure” is not a standard of proof known to the Court. I can be satisfied that the mother will not bring [X] into contact with the maternal grandmother on the Briginshaw standard, having regard to the extensive evidence I had back in 2009, and the findings I made in 2009.
Whilst I accept that there is an unacceptable risk of abuse to [X] if she is brought into contact with the maternal grandmother, I am not satisfied that there is an unacceptable risk that the mother will allow this to happen. The stakes are far too high for the mother. She knows what the Court will do if she brings [X] into contact with the maternal grandmother. She has experienced the Court drastically limiting her time with [X].
I accept Dr K’s evidence that she has moved a long way from believing that [X] has been abused by her father. She is 95 per cent there, according to the mother. In the circumstances of this case, one might be prepared to excuse the parent for some doubt, but that comment should not in any way detract from the obligation of the mother to continue psychiatric treatment. Subject to the mother continuing to receive the psychiatric treatment as contemplated by Dr K at lines 277 to 283 of his reasons, I believe it is time to move on and try to put this litigation out of [X]’s life.
The 2009 orders were carefully framed. Any change to them should, in my opinion, be minimalist. The mother’s proposal is much more closely attuned to maintaining the integrity of the original orders than the father’s. As for the father’s proposal, I see no evidence to warrant modification of parental responsibility, or at this stage, for the appointment of an Independent Children's Lawyer, or for further restriction of contact. It is time that he too puts this litigation behind him. I have no doubt that he has been hurt by this litigation, but for the sake of [X], it’s time for both parents to move on.
My biggest concern for [X] is a transition from spending little time with her mother to spending the time contemplated by the 2009 orders. And thus, for example, if we simply reverted back to the 2009 orders, [X] would go straight back into a three-week block with her mother, because of school holidays. Now, that is too much, too quickly, and [X] needs to be eased into the changes in her life. The orders I make will address this issue.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Date: 4 April 2012