Donato and Salvati
[2011] FMCAfam 1197
•26 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DONATO & SALVATI | [2011] FMCAfam 1197 |
| FAMILY LAW – Contravention. |
| Family Law Act 1975, ss.70NEB(1)(d), 70NEC |
| Applicant: | MR DONATO |
| Respondent: | MS SALVATI |
| File Number: | SYM 7919 of 2006 |
| Judgment of: | Altobelli FM |
| Hearing date: | 26 October 2011 |
| Date of Last Submission: | 26 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 26 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Friedlander |
| Solicitors for the Applicant: | Kells The Lawyers |
| Solicitors for the Respondent: | Hilton King Lawyers |
ORDERS
THE COURT ORDERS BY CONSENT THAT:
Pursuant to rule 13.04 of the Federal Magistrates Court Rules 2001, Orders be made in accordance with the document titled, “Consent Order”, dated 26 October 2011, signed by the parties and their legal representatives.
THE COURT FURTHER ORDERS THAT:
The matter be adjourned to 23 December 2011 at 10am for possible Interim Hearing in Sydney.
Dr K be provided with a copy of:
(a)My reasons for judgment;
(b)The Father’s Affidavits in relation to the Contravention application;
(c)The Mother’s Affidavit of 6 September 2011;
(d)Ms S's Affidavit of 7 September 2011;
(e)Mr R's Affidavit of 6 September 2011; and
(f)All Orders made since the reasons for judgment.
The solicitor for the Respondent is to attend to providing the said documentation to Dr K within 14 days.
The Mother be entered into a bond for a period of 2 years without surety on condition that she comply with parenting Orders that are in force.
Costs be reserved.
I DIRECT the Father to file and serve a document summarising the legal fees that he has incurred in this matter to date no later than
16 December 2011.The Mother is to file and serve a sworn Financial Statement no later than 16 December 2011.
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
EX TEMPORE
REASONS FOR JUDGMENT
In the matter of Donato & Salvati the applicant father’s Contravention Application filed 8 June 2011 came before me for hearing this morning. The father alleges in the application that the mother, without reasonable excuse, contravened a number of orders that were made by me, specifically orders 3, 4 and 10 made on 20 August 2009.
When the matter commenced before me the applicant father withdrew his allegations of breaches of orders 4 and 10 and the mother, through her solicitor, conceded the contravention of order 3 and that the same was without reasonable excuse. The issues that remained for me to determine were firstly, what penalty should follow from the acknowledged breach without reasonable excuse, and secondly, to what extent I should vary firstly, the interim orders that provide for [X] to spend time with her mother, and secondly, to what extent I should vary order 3 made on 20 August 2009.
The issue of [X]’s time with her parents was resolved by consent on an interim basis, though my impression is that this was a compromise and that the mother’s preferred position would be to simply revert to the orders I made on 20 August 2009 and the father’s preferred position would be something else. In any event, the matter having been adjourned to 23 December, I am satisfied that whilst other things happen that [X] will have the benefit of regular time with her mother, albeit supervised.
The mother proposed, however, that order 3 be varied in such a way that the obligation it creates for her to attend on a consultant psychiatrist be satisfied by virtue of a report dated 20 October 2011 prepared by Dr H. That document was in evidence. I am going to mark it exhibit R1. Dr H’s report states that there is no formal psychiatric diagnosis and that there is no evidence of psychotic beliefs or delusional ideations. He noted that the mother’s intelligence was in the average to low range and that her understanding of legal and psychological matters and processes was limited. On behalf of the mother it was asserted that this document satisfies the intent of order 3. It establishes that there are no reasons to be concerned about the mother’s mental health and that there’s no reason not to simply revert to the orders made on 20 August 2009.
Ms Friedlander, of counsel, appears for the father, and she argues that there are significant deficiencies in Dr H’s report and in particular the fact that he has not had regard to a number of very significant documents, including my reasons for judgment and the evidence in support of the contravention application.
She points to a number of statements in paragraph 4 on the first page of Dr H’s reports that clearly signal that Dr H did not have the full picture. I accept the concern in this regard. In one sentence in paragraph 4
Dr H says, “There was no evidence that Ms Salvati was psychiatrically unwell or that her contact with her daughter was harmful.” Whilst he had Dr K’s report he didn’t have my reasons for judgment and if he did have my reasons it’s hard to understand how he could state that there was no evidence that the mother’s contact with the daughter was harmful.
In addition the last sentence of that fourth paragraph states, “That as a result of the report [X] has apparently resided with her father for the last two years and Ms Salvati’s contact has been very limited and supervised.” I’m not sure that that is a fair summary of the events that have transpired since the final hearing and the orders I made on
20 August 2009. I think there are sufficient concerns about Dr H’s report to render the weight that I would give to it negligible.
The benefit of proceeding in accordance with order 3 is that the mother goes back to Dr K, who has had a much more detailed involvement in this case. I have made directions for him to be provided with further documents that will ensure that he has a much more complete picture that what has happened since the date of his report. Referring the mother back to Dr K, I think, is actually not only in [X]’s best interests, but in the mother’s best interests as well. It will put to bed once and for all time any concerns about her mental health.
Accordingly, order 3, made 20 August 2009, will simply remain in place, even though the period of 12 months therein has expired. I note that appointments are available on 16 December and I am going to note that the mother will comply with that order such that she attends Dr K on 16 December. I bring the matter back before me on 23 December, which is my last sitting day for three months thereafter, and I trust that the issue of the mother’s mental health will be apparent in a report that Dr K provides.
The remaining issue is what penalty to impose given the acknowledged contravention in relation to order 3. The mother asserts, through her solicitor, that it should be treated as a less serious breach, and it is certainly a first breach. The father asserts that, when everything is viewed in context, the mother’s actions constitute a more serious breach. On behalf of the father it is submitted that I should order a bond for the mother to comply with the parenting orders in force from time to time, without surety for a period of two years. For the mother it is asserted that I should order her to attend a post-separation parenting course.
Section 70NEB provides powers to the court in a situation where a contravention without reasonable excuse is established, but there is a less serious contravention. It provides in paragraph (d) of subsection (1) that I may make an order requiring a person to enter into a bond pursuant to s.70NEC. I have decided that the imposition of a bond is appropriate. It will require the mother to comply with parenting orders in force from time to time.
I have not heard anything that would, in my mind, provide a reasonable explanation as to why the mother has not complied. Even making allowance for the fact of the filing of the appeal, for the fact that the mother was self-represented, for the fact that Dr H believes that the mother struggles to understand the consequences of proceedings, the impression I formed is that the mother did not accept my original order and still continues to struggle to accept that, even when all it requires her to do is to attend upon a psychiatrist in the hope and expectation that it provides her with a clean bill of health from a mental health perspective. This clearly justifies the imposition of a bond and I think that that is the appropriate penalty.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 26th October 2011
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