Ellul & Castelli
[2024] FedCFamC2F 1592
•8 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ellul & Castelli [2024] FedCFamC2F 1592
File number(s): PAC 3112 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 8 November 2024 Catchwords: FAMILY LAW – PARENTING – Short form reasons – Urgent oral interim application for parenting orders – Immediate change of residence – Whether there is an unacceptable risk to the child Legislation: Family Law Act 1975 (Cth) ss 60CC, 69ZL Division: Division 2 Family Law Number of paragraphs: 25 Date of hearing: 8 November 2024 Place: Parramatta Counsel for the Applicant: Ms Trad Solicitor for the Applicant: Legal Aid NSW Counsel for the Respondent: Mr Vizzone Solicitor for the Respondent: Supreme Justice Lawyers Counsel for the Independent Children's Lawyer: Mr Schroder Solicitor for the Independent Children's Lawyer: Shedden & Associates ORDERS
PAC 3112 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ELLUL
Applicant
AND: MR CASTELLI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
8 NOVEMBER 2024
THE COURT ORDERS ON AN INTERIM BASIS:
1.That all prior parenting Orders be discharged.
2.That Q born in 2012 (‘Q’) live with the mother Ms Ellul (‘mother’).
3.That the mother attend the school of Q at W School at Suburb T with a sealed copy of these Orders and collect Q from his school today. The mother shall provide a sealed copy of these Orders to the school to facilitate her collection of Q from the school.
4.That the mother have sole responsibility for decision making in relation to the education issues of Q.
5.The father, Mr Castelli (‘father’), is restrained from contacting any school of Q or attending any school of Q until further Order of the Court.
6.In the event that Q is not at his school today, then the father shall do all things and take all steps to deliver Q to the mother’s residence by 6:00 pm this afternoon.
7.Pursuant to section 67U of the Family Law Act 1975 (Cth), in the event that the father fails to return Q to the mother Ms Ellul’s residence in accordance with these Orders, then the Marshall of the Court, all Officers of the Australian Federal Police, and all State and Territory Police Officers are requested to find Q (male) and deliver Q to the mother Ms Ellul, and for that purpose to stop and search any vehicle, vessel, or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that Q may be found.
8.Other than as authorised by these Orders, the father be restrained from attending the mother’s home pending further order of the Court.
THE COURT FURTHER ORDERS THAT:
9.The matter is listed for Mention at 9:30am on 13 November 2024.
10.The Independent Children’s Lawyer is granted leave to have the matter relisted on 24 hours’ notice.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are short-form reasons pursuant to s 69ZL of the Family Law Act 1975 (Cth) in respect of an oral application for urgent interim parenting orders which is brought by the Independent Children's Lawyer (‘ICL’) during the course of the final hearing and supported by the mother of the child, Q born in 2012 (‘Q’). The proceedings, of course, concern Q, who is the only child of the parties, who has been living with the respondent father since April 2019 and who has not spent any time with the mother since December 2022 despite interim orders providing otherwise.
Today is the fifth day of oral evidence in the final hearing which commenced on Monday this week. The father, who is the respondent, is currently under cross-examination. He has throughout these proceedings been represented by a solicitor and counsel. The Child Court Expert is yet to give evidence, as are the two supporting witnesses in the father's case. The proceedings will likely take at least another day of evidence, and if closing submissions are to be done other than in writing, then there will be an additional day for closing submissions. So that will mean that the proceedings may take up to two further Court days.
This morning the father advised the Court through his solicitor that he was not feeling well, or certainly not well enough to attend Court, that he was stressed by the proceedings, and that he thought he might be having a heart attack. The father has subsequently not attended Court, and after going to see his general practitioner this morning at approximately 10am he has since been taken by ambulance to Y Hospital. The Court understands that the father is undergoing some tests as we speak.
The father is on notice of the urgent interim application, and he has been able to provide instructions to his solicitor and counsel about opposing the application.
During the oral evidence over the course of the last two days the father expressed, a number of times, difficulties in being able to remember things, including his own evidence, at times given minutes prior, and he has also indicated that he has been very stressed as a result of the proceedings and that is why he has not been able to remember things. He denied having general difficulty with his memory.
Before the Court in the interim application, as part of Exhibit B, are various reports from the father's psychiatrist which indicate that the father has had a major depressive illness which is longstanding, and which predates the parties' relationship. Exhibit B refers to the father having impaired judgement and decision-making, albeit said to have been consequent to the stress imposed on him following recent dealings with his legal team and what he describes as false allegations made against him.
The father has another child in his care, P, Q's half-sister, who is approximately 13 years old and who has lived with the father and Q since about 2020. Q and his sister are very close, and any change in residence will have some impact on that sibling relationship.
The father makes some very serious allegations against the mother in these proceedings, he alleges that she has sexually abused Q and that he is at an unacceptable risk of harm in the mother's care.
The alleged disclosures are contained in the father's affidavit in the final proceedings, and those disclosures are very vague not only as to the time as when they were made – particularly the disclosure said to have been made in late 2017/early 2018 – but also as to what the alleged sexual abuse is alleged to be. The disclosures are contained in [42] and [49] of the father's affidavit filed on 7 June 2024.
The father has already been cross-examined about those matters, and the Court has heard his oral evidence about that. The father took Q to the police to report the matter in early 2020, and before the Court in the interim application as Exhibit C is the COPS entry relating to the reporting in early 2020 by Q to the police of the alleged sexual abuse. In the substantive proceedings, the Court has before it the record of interview between the child and the police, as well as some Department of Community and Justice (‘Department’) notes in respect of the alleged disclosure.
The outcome of the report to police is that there was a provisional Apprehended Domestic Violence Order made for the protection of Q which was withdrawn after police investigations and approximately one month after it was granted. The police have taken no further action in relation to the alleged allegations of sexual abuse by the mother against Q, and it appears from the evidence that the police came to the view that the disclosures were vexatiously made, and that the complaint was a vexatious complaint by the father. Certainly, the complaint was not substantiated, and no further action was taken by the police or the Department in respect of those disclosures.
Q has seen a psychologist in late 2021, after the alleged disclosures in late 2017/early 2018 and the disclosures in 2020 were said to have been made. No disclosures were made to the psychologist in late 2021.
According to Exhibit D, Q made some vague references of being touched on his private parts, and being touched inappropriately to Dr Z, Q's paediatrician. Those disclosures are, at best, vague.
What Exhibit D discloses though, in support of the submission that the father has engaged in systems abuse, is evidence of the father, in essence, doctor shopping. So, for example, in mid-2022 the father has indicated to Dr Z that:
[He] is in search of a psychiatrist as he believes one will offer him a higher care than a psychologist
[Q] has seen a psychologist recently, but did not have a good rapport with her
Q had been having monthly sessions with his psychologist for 18 months prior to mid-2022. As noted earlier, there is no evidence that in any of those sessions with his psychologist Ms AA, Q has disclosed any allegations of sexual abuse.
The Court has to consider in coming to a determination as to what is in Q's best interests, including on an interim basis, the matters set out in section 60CC of the Act.
Primarily, it is the risks which the parents are said to pose to Q that the Court needs to determine, having regard to the matters that have been raised in these proceedings. The Court is particularly concerned as to what arrangements would promote the safety of the child and of each person who has the care of the child, including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm.
The Court has serious concerns that Q is at significant and unacceptable risk of psychological and emotional harm in his father's household. The Court has serious concerns that he is at significant and unacceptable risk of harm of family violence in terms of coercive and controlling behaviours that are the subject of evidence in the mother's case and also are the subject of evidence in the substantive proceedings, including through oral evidence of the father.
The Court is not of the view that the mother poses an unacceptable risk of harm, by virtue of the allegations of sexual abuse or otherwise, if Q was to live with her or spend time with her, certainly not on an interim basis. This is notwithstanding the very strong views that have been expressed by Q in the family report about refusing to be observed with his mother, about the evidence of the child's reluctance to spend time with his mother in accordance with the interim orders, and by virtue of the fact that the child has, in fact, not spent any time with the mother for a period of approximately two years.
The Court has significant concerns about the father's parenting capacity and his ability to meet the needs of the child. In particular, his psychological, emotional and developmental needs, but also his cultural needs. There is no evidence before the Court that the father has taken any steps in respect of engaging the child in any matters which might support his cultural heritage, being Country BB on the mother's side. Certainly, the father has displayed significant impairment in his parenting capacity in being able to meet Q's psychological, emotional and developmental needs in that he has not facilitated a relationship between Q and his mother, in that he has stood in the way of that relationship by placing demands on the mother in terms of how time is to be spent, where time is to be spent and, indeed, insisting that time be spent in his presence prior to the Orders of June 2022.
The mother also makes very significant allegations of coercive and controlling behaviour by the father, including that the father has required her to engage in sexual intercourse with him before he would permit time between Q and the mother. The Court is satisfied, notwithstanding that the evidence has not yet closed, that the father did engage in such coercive and controlling behaviour, and that he did require the mother to have sexual intercourse with him so that he would facilitate time between the mother and Q.
The Court finds that the mother is fearful of the father as a result of his coercion and control. And the Court finds, notwithstanding that the evidence has not yet closed in the final proceedings, that the father has engaged in family violence against the mother, including threatening her and her safety, as is evident from Exhibit 8 in the final proceedings being the audio-visual recording of the father threatening the mother while speaking at her for, a period of some 15 minutes.
The relationship between the child and the father to date is of concern to the Court in the manner that has been disclosed in the family report, that is, the child being somewhat reserved in the father's presence and only being observed to be acting in a relaxed manner when he was with his sister P.
The orders which the ICL seeks are, in one sense, draconian in that they require an immediate change of residence, and that also, there is no provision for time between the father and the child. The Court is however satisfied that such orders are required in order to ensure Q's safety, both in the short term and the long term, pending the final determination of these proceedings.
For those brief reasons I am satisfied that the orders as sought by the ICL and the mother are to be made.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Obradovic. Associate:
Dated: 13 November 2024
0
1