Fasolo and Fasolo

[2014] FCCA 3025

FEDERAL CIRCUIT COURT OF AUSTRALIA

FASOLO & FASOLO [2014] FCCA 3025

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – best interests of the children – three children aged nearly 13, 11 and 10 years – whether father’s time with the children should be increased prior to the final hearing – where final hearing scheduled to commence on 22 April 2015 – where Family Report supports increased time for the children to spend with the father.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applicant: MR FASOLO

First Respondent: MS FASOLO

File Number: SYC 3760 of 2013

Judgment of: Judge Scarlett

Hearing date: 17 December 2014

Date of Last Submission: 17 December 2014

Delivered at: Sydney

Delivered on: 19 December 2014

REPRESENTATION

Counsel for the Applicant: Mr Othen

Solicitors for the Applicant: Solari & Stock

Counsel for the Respondents: Mr Cairns

Solicitors for the Respondents: McCabe Partners Lawyers

Counsel for the Independent Children's Lawyer: Ms Picker

Solicitors for the Independent Children's Lawyer: Tiyce & Lawyers

ORDERS

UNTIL FURTHER ORDER

1. Order 1 made on 28 April 2014 is discharged.

2. The children [X] born [omitted] 2001, [Y] born [omitted] 2003 and [Z] born [omitted] 2004 are to live with the Respondent mother and spend time with the Applicant father as follows:

   (a)Each alternate weekend during the school term from 10:00 am on Saturday until 4:00 pm on Sunday; and

   (b)In the alternate weekend, being the fourth weekend in a four week cycle from 10:00 am until 4:00 pm on the Saturday.

3. The father is to collect the children from the mother at the commencement of his time with the children and the mother is to collect the children from the father at the conclusion of the father’s time with them.

4. During the New South Wales Christmas school holiday period in 2014 the children [X], [Y] and [Z] are to spend time with the father as follows:

   (a)For a block period of one week commencing on 2 January 2015; and

   (b)For a further period of three (3) days in the final week of the school holiday period not including the weekend immediately prior to the resumption of school, that period to be notified by the father to the mother with fourteen (14) days’ notice.

5. Notwithstanding any other order the children are to spend time with the parties during the Christmas/Boxing Day period as follows:

   (a)with the mother from 9:00 am on Christmas Eve until 3:00 pm on Christmas Day; and

   (b)with the father from 3:00 pm on Christmas Day until 5:00 pm on Boxing Day.

6. The father is at liberty to communicate with the children while they are in the care of their mother on Mondays and Wednesdays on a mobile telephone number provided by the father for use by the children and the father is to ensure that the phone is kept in credit and the mother is to ensure that the phone is charged and available to facilitate this telephone communication upon the children’s return from school or during weekends.

7. The parties must comply with all of the recommendations of the children’s paediatrician and dietician and the mother must within seven (7) days from the date of these Orders provide the father with a dietary regime for the children while they are in his care.

8. The parties are restrained by injunction from denigrating or criticising the other party in the presence or hearing of the children or from permitting the children to remain in the presence or hearing of any third person who engages in such behaviour.

9. Within seven (7) days of the date of these Orders the mother is to provide the father with written notice through her solicitor of the identity and the address and telephone number of the children’s general practitioner and the father shall, upon receipt of that information, make contact with the general practitioner for the purpose of arranging a meeting to discuss the children’s medical needs and on that attendance the father is to confirm through his solicitor his attendance upon that general practitioner.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3760 of 2013

MR FASOLO

Applicant

And

MS FASOLO

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application in a Case by the father of three children, a boy and two girls, aged almost 13, 11 and 10 years old, seeking to vary earlier interim orders so as to increase the amount of time that the children spend with him. The Application is brought in the shadow of the final hearing, which is scheduled to commence on 22 April next year and run for three days.

2. The father has amended his proposal so that it accords with the orders proposed by the Independent Children’s Lawyer in a Minute of Proposed Orders handed up in Court on 17 December this year, the day of the hearing.

3. The mother opposes the Application. In her Response, which should technically be a Response to an Application in a Case, the mother seeks the following orders:

   1.  That the husband’s Application in a Case filed on 29 September 2014 is dismissed.

   2.  That Order 1.1 of the Interim Consent Orders dated 28 April 2014 be varied as follows:

   (a)     That the child [X] born [omitted] 2001 spend such time with the father as he requests.

   (b)     That the children [Y] born [omitted] 2003 and [Z] born [omitted] 2004 spend time with the father from 10:00 am Saturday to 4:00 pm Sunday on alternate weekends.

   (c) That during overnight time with the father the children and the father stay at the home of the paternal grandparents.

   3.  That the father pay the mother’s costs incurred in response to his Application.

Background

1. The mother was born on [omitted] 1968. She is now 46 years of age.

2. The father was born on [omitted] 1969. He is 45 years of age.

3. The parties were married on [omitted] 2000. They separated under the one roof from the middle of March 2011 until 17 August 2012, when the father left the matrimonial home and moved to his mother’s house.

4. There are three children of the marriage:

   a)[X], who was born on [omitted] 2001;

   b)[Y], who was born on [omitted] 2003; and

   c)[Z], who was born on [omitted] 2004.

5. The children live with their mother and spend time with their father in accordance with orders made by this Court first on 15 October 2013 and, more recently, on 28 April 2014.

6. The father has re-partnered.

7. The father commenced proceedings by filing an Initiating Application on 5 July 2013. The Application was returnable on 19 August 2013.

8. On the return date of the Application the parties were directed to attend a Child Dispute Conference in respect of parenting issues and a Conciliation Conference in respect of property issues.

9. On 15 October 2013 the parties entered into interim consent orders providing that:

   a)the children would live with their mother;

   b)the children would spend time with their father from 10:00 am to 5:00 pm each Saturday; and

   c)the children would communicate with their father each Wednesday and Monday by mobile telephone between the hours of 4:30 and 5:30 pm.

10. The Court made an order for the appointment of an Independent Children’s Lawyer to represent the children’s interests.

11. On 19 November 2013, the Independent Children’s Lawyer having appeared, the Court ordered a Family Report under the provisions of section 62G of the Family Law Act 1975 (Cth).

12. The Family Report, prepared by a Family Consultant, Ms B, was released to the parties by order of the Court on 21 March 2014.

13. On 28 April 2014 the parties again entered into interim consent orders, this time providing that the children would spend overnight time with their father on a weekend. The orders provided that:

    a)the children would spend time with their father from 10:00 am on Saturday to 4:00 pm on Sunday; and

    b)during overnight time with their father the children would stay at the home of their paternal grandparents.

14. The consent orders also provided that:

    a)the mother would authorise the child [X]’s school to provide the father with information about the child;

    b)the parties would attend upon the children’s gastric/diet specialist, Dr K, to obtain recommendations about the children’s dietary requirements; and

    c)the mother would not contact the father whilst he is spending time with the children.

15. The parties attended a Legal Aid mediation in August 2014 but the matter did not resolve.

16. The current application was commenced by the father’s solicitors filing an Application in a Case on 29 September 2014. The Application was returnable on 19 November 2014.

17. The Application in a Case sought a variation of the earlier consent orders in ways that differed in a number of respects from the Orders that the father now seeks, but, essentially, the father seeks:

    a)increased time with the children; and

    b)a relaxation of the requirement that the children’s overnight time should be spent at the home of the children’s paternal grandparents, as the father now has other accommodation.

18. The Application in a Case was adjourned to 17 December 2014 for hearing.

Evidence and Submissions

1. The father relied on the following documents:

   a)his Application in a Case;

   b)his affidavit of 26 September 2014; and

   c)the Family Report.

2. The mother relied on:

   a)her Response filed on 14 November 2014;

   b)her affidavit of 7 November 2014;

   c)her supplementary affidavit of 18 November 2014; and

   d)the Family Report.

3. I comment in passing that it is difficult to understand why some practitioners fail to appreciate that the Court will only parties to rely on one affidavit per witness in interim proceedings. It is unacceptable to file a plethora of affidavits from each witness for the purpose of an interim hearing.

4. Counsel for the father, Mr Othen, submitted that the additional time sought by the father was now in accord with the proposal by the Independent Children’s Lawyer. The block time sought by the father was that proposed jointly by the father and the Independent Children’s Lawyer. The Family Consultant recommended that overnight time should commence. The risks that the mother claimed have not materialised.

5. Mr Othen submitted that it was difficult to see what ongoing purpose was being served by insisting on the presence of the father’s parents when the children were spending time with their father. No risk of harm had been demonstrated. The supervision had been imposed by the mother without there having been a hearing. The father claims that he has been very careful to follow the food list provided for the children. It was conceded that the children do suffer from irritable bowel syndrome but there is no call for the paternal grandparents to be involved in supervision of the children’s time with their father.

6. Mr Cairns of Counsel, who appeared for the mother, submitted that the status quo should remain until the final hearing in April. The only independent evidence is the Family Report, which does not support block contact.

7. Further, the mother’s affidavit evidence is that the children complain about spending overnight time with the father. The sisters should not be subject to cross-examination by the father or his partner. The Court should not arbitrarily alter the orders to which the father has previously consented.

8. Mr Cairns submitted that the mother had no difficulty with Orders 1, 7, 8, 9 and 10 proposed by the Independent Children’s Lawyer. As for the proposed Order 5, about the children spending time with the father on Christmas Day, the mother would only agree to an order that the children spend time with their father from 3:00 pm to 8:00 pm on Christmas Day, rather than the time submitted by the Independent Children’s Lawyer, which would include overnight time on Christmas Night and extend to 5:00 pm on the afternoon of Boxing Day.

9. Counsel for the Independent Children’s Lawyer, Ms Picker, submitted that on the material the children are not spending much time with their father.

10. The girls’ dietary requirements should be followed, as it is clear that they suffer from irritable bowel syndrome. The Court only has independent evidence from the Family Report and from the Independent Children’s Lawyer. It is noteworthy from the Family Report that the Family Consultant does not have any concerns about the father’s ability to look after the children.

The Family Report

1. The Court is in the fortunate position of having a Family Report available, which is not always the case at an interim hearing.

2. For the purposes of the Report, the Family Consultant interviewed the following:

   a)the father;

   b)the mother;

   c)all three children;

   d)the mother’s adult daughter by a previous relationship, Ms M; and

   e)the father’s new partner, Ms F.

3. The Family Consultant observed the children [X] and [Y] together in the presence of their father and later with Ms F. On a separate occasion, the Family Consultant observed the youngest child [Z] in the presence of the father and Ms F, and then in the presence of her mother.

4. The Family Consultant recorded that the eldest child, [X], spoke of missing his father and wanting to spend more time with him, including staying overnight. However, the child stated that he only wished to stay overnight in the company of his sisters and only at the home of the paternal grandparents.

5. The child [Y] expressed willingness to trial overnight time with her father, but only at the home of the paternal grandparents. The youngest child, [Z], also expressed some enthusiasm about staying overnight with her father but, again, only at her paternal grandmother’s home.

6. In her evaluation, the Family Consultant noted that there were “few, if any, examples of cooperative parenting since separation, and…serious conflict and acrimony (between the parents)…[1]. However, all three children have consistently wanted and needed to spend regular time with each parent, and all three children love both parents. The Family consultant went on to observe:

   However, since separation, the ongoing development of the children’s relationships with their father appears clouded by the underlying conflict between the parents and the unresolved issue as to the father’s ability to recognise and meet the children’s health and dietary needs.[2]

   [1] Family Report, pages 23-24, paragraph [74]

   [2] Ibid

7. The Family Consultant also noted that:

   a)the mother does not believe that the father can appropriately care for the children;

   b)the mother has a lack of trust and confidence in the father, which is not lost on the children;

   c)there is no doubt the mother loves and cares well for the children and provides for them; and

   d)the mother appears not to have supported the children’s relationships with their father “as effectively as she could have” but the children clearly have a relationship with them.

8. In particular, the Family Consultant had this to say:

   Some decisions Ms Fasolo appears to have taken – resulting in there being limited or no contact with their father – have been explained by reference to [Z]’s and [Y]’s dietary and health needs. That is all very well and no one would argue with that as a proposition in itself, but that it not to say children do not have other needs, particularly to sustain and nourish their relationships with their father, and ideally balance needs to be struck to ensure that these are also given priority. However, it seems likely that the mother will continue to constantly look at the children and their health and behaviour to find reasons as to why the father is not good enough and their time together should be limited. This has enormous potential to undermine any future parenting arrangement, particularly if an arrangement is ordered that Ms Fasolo does not agree with.[3]

   [3] Family Report pages 25-26, paragraph [78]

9. The Family Consultant recommended that:

   a)The parties should have equal shared parental responsibility for the children;

   b)If the Court is satisfied as to the father’s capacity to cope with the children’s health and dietary needs, consideration should be given to the children spending time with their father on alternate weekends from 10:00 am on Saturday until 4:00 pm on Sunday and in the other week from 10:00 am to 4:00 pm on Saturday;

   c)The children would benefit from an order that both parents agree to comply with the directions and recommendations of the children’s paediatrician; and

   d)Both parents should be restrained from denigrating the other parent in the presence of the children.

The relevant law in regard to parenting applications

1. When the Court is considering making parenting orders, whether final orders or orders until further order (i.e. interim orders), it must have regard to various sections of the Family Law Act 1975 that are to be found in Part VII of the Act. In particular, it should have regard to the provisions of:

   a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, which requires the Court to regard the best interests of the child, or the children in this case, as the paramount consideration;

   c)Section 60CC, which sets out the way that the Court determines what is in children’s best interests;

   d)Section 61DA, which deals with the presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them; and

   e)Section 65DAA, which requires the Court to consider equal time or substantial and significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the children.

2. All of those matters have been considered, so far as they are relevant. The matters in sections 60CC, 61DA and 65DAA will be discussed in some detail.

Relevant matters in section 60CC of the Family Law Act

1. The Full Court of the Family Court in Goode & Goode[4] has held that a Court at first instance should consider the matters in s.60CC of the Act that are relevant and, if possible, make findings about them, noting that:

   …in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.[5]

   [4] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

   [5] [2006] FamCA 1346 at [82]; (2006) 36 Fam LR 422 at 445 [82]

2. The primary considerations in s.60CC(2) are, on the one hand, the benefit to the children of having a meaningful relationship with both parents, and, on the other hand, the need to protect the children from physical or psychological harm from abuse, neglect or family violence. Subsection 60CC(2A) requires the Court to give greater weight to the latter consideration.

3. There does not seem to be much in the way of evidence to show that the children are at risk of harm from abuse, neglect or family violence when in the care of their father. The mother may not trust the father to look after the children properly, but the father has told the Family Consultant that he is doing his best to follow the children’s dietary guidelines and the father’s new partner, Ms F, has told the Family Consultant that she herself suffers from irritable bowel syndrome.

4. The evidence seems clear that the children love both parents and want to spend more time with their father. It appears that there is a benefit to the children in having a meaningful relationship with both of their parents, which points to the need for the children to spend more time with their father.

5. There does not appear to be an unacceptable risk of harm to the children in the father’s care. Why, then, should there not be overnight time with the father and what is the need for that overnight time to be spent only at the paternal grandparents’ home?

1. The children’s views, as reported by the Family Consultant, are that they want to spend more time with their father but only at their grandparents’ home, but they are still quite young children and the Court will not necessarily place a great deal of weight on their views.

2. The mother seeks an order that the eldest child, [X], should spend “such time with the father as he requests”. This is a heavy burden to place on a child only recently turned thirteen. It is the sort of order that the Court might expect to be sought in respect of a child aged seventeen rather than a child of this age. With respect, such an order would not be at all in this child’s best interests.

3. There does not appear to be any utility in maintaining this quasi-supervision order to which the parties previously agreed, requiring overnight time to be at the home of the paternal grandparents.

Equal shared parental responsibility and section 61DA of the Act

1. The Family Consultant recommends that the parties should have equal shared parental responsibility for the children. It is the case under s.61DA(3) of the Act that:

   When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

2. I do not consider that it would not be appropriate in the circumstances for the presumption to be applied when making these interim orders. It is not a case where there are reasonable grounds to believe that a parent of the children or a person who lives with one of the parents has engaged in abuse of the child or family violence (see s.61DA(2)).

3. There is no evidence that it would not be in the children’s best interests for the parents to have equal shared parental responsibility for the children sufficient to rebut the presumption (see s.61DA(4)).

4. In any event, the provisions of s.61DB should be considered:

   If there is an interim parenting order in relation to a child, the court must, in making a final parenting order, disregard the allocation of parental responsibility made in the interim order.

5. It is relevant that there is a final hearing scheduled to commence on 22 April 2015, only four months away, which means that the Court will consider afresh the allocation of parental responsibility.

6. I am satisfied that an order should be made until further order that the parents should have equal shared parental responsibility for the three children.

Section 65DAA of the Family Law Act

1. Section 65DAA of the Act requires the Court, when it has made an order providing that children’s parents should have equal shared parental responsibility for them, to consider equal time with each parent (s.65DAA(1)) or, failing that, substantial and significant time with each parent (s.65DAA(2)).

2. In making that consideration, the Court is required to consider whether it is both in the children’s best interests and reasonably practicable for such an order to be made.

3. Neither parent seeks an equal time order. I am not of the view that it is either in the children’s best interests or reasonably practicable to make such an order.

4. I am also not persuaded that an order for substantial and significant time is reasonably practicable at this stage, even if it were to be in the children’s best interests.

Orders that are in the children’s best interests

1. There is much to be said for the orders proposed by the Independent Children’s Lawyer, and it is significant that the father has decided to submit that those proposed orders are in the children’s best interests. There is agreement by the mother that the ICL’s proposed Orders 1, 7, 8, 9 and 10 should be made.

2. The proposed Order 1 provides that the children would spend time with their father on each alternate weekend from 10:00 am on the Saturday until 4:00 pm on the Sunday. That order is in line with the recommendation of the Family Consultant.

3. Proposed Orders 7 and 8 are also in line with the recommendations of the Family Consultant. Order 7 requires the parties to comply with all recommendations of the children’s paediatrician or dietician with the mother providing the father with a dietary regime for the children whilst they are in his care. Order 8 is a non-denigration order.

4. Order 10 requires the mother to provide the father with the identity of the children’s general practitioner and requires the father to make contact with the general practitioner to arrange a meeting to discuss the children’s medical needs. There is obvious good sense in that proposed order and I proposed to follow the recommendation of the Independent Children’s Lawyer, but with some additions.

5. That is not to say that I propose to make all of the orders proposed by the Independent Children’s Lawyer. The ICL’s proposed Order 9 is to my mind problematic, saying:

   That the father shall provide [X] with monies gifted to [X] and the parties shall permit the free flow of the children’s items including clothing, toys or activities between their homes.

6. It seems to me, with respect, that this proposed order would be very difficult to enforce. Counsel for the ICL suggested that the proposed order should be made as a notation instead, but that does not seem to me to make the situation any clearer. I propose not to make the order at all.

7. I am satisfied that there is sufficient evidence, notwithstanding that the Family Report is untested by cross-examination of the Family Consultant, that it is in the best interests of these children for the Court to make interim orders providing for them to spend more time with their father.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  7 January 2015