Fiedler & Vitale (No 2)

Case [2024] FedCFamC1F 584

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Fiedler & Vitale (No 2) [2024] FedCFamC1F 584

File number(s): NCC 983 of 2018
Judgment of: SMITH J
Date of judgment: 23 August 2024
Catchwords: FAMILY LAW – PARENTING – Final Hearing – Oral reasons for decision - Best interests of child – Where neither parents household is sufficiently safe – Where the Department of Communities and Justice (NSW) (“DCJ”) repeatedly decline to intervene - Where Court must make a decision - Where child to live with the mother – Where child to spend limited time with father – Where mother to exercise sole long term decision making for child - Where no criticism of DCJ who work with limited information and resources – Where Reasons for Decision to be provided to DCJ for consideration of possible assistance to mother’s household or other action they deem fit.
Legislation:

Evidence Act 1995 (Cth) Pts 3.3, 3.7, 3.10, 4.1, ss 79, 108C, 128, 140.

Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CC, 65DAAA.

United Nations Convention on the Rights of the Child (“Convention on the Rights of the Child”) Article 12

Division: Division 1 First Instance
Number of paragraphs: 326
Date of hearing: 15-19 July 2024, 16 August 2024
Place: Newcastle
Counsel for the Applicant: Ms Adams-Nash
Solicitor for the Applicant: McNeilly Lawyers
Counsel for the Respondent: Mr Graham
Solicitor for the Respondent: Lindeman Lawyers
Counsel for the Independent Children's Lawyer: Mr Gallimore
Solicitor for the Independent Children's Lawyer: Stevens Family Law & Mediation

ORDERS

NCC 983 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR FIEDLER

Applicant
AND:

MS VITALE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

23 AUGUST 2024

THE COURT ORDERS THAT:

1.That all previous Orders be discharged.

2.For the avoidance of doubt, the undertaking made by Ms J on 20 October 2022 be discharged.

Parental responsibility and decision making to the mother

3.That Ms Vitale (born in 1985) (“the mother”) shall have parental responsibility for the child, X (born in 2016) (“the child”) and sole decision making authority in respect of all decisions concerning major long term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the child.

Live with the mother

4.The child is to live with the mother.

Time with the father

5.The child will spend time with Mr Fiedler (born in 1978) (“the father”) as follows, and not otherwise:

(a)Commencing 1 September 2024, on the first Sunday of the September being Father’s Day, from 10.00 am until 2.00 pm; and,

(b)Commencing Sunday 20 October 2024, on the third Sunday of each month, other than September and December, from 10.00 am until 2.00 pm; and,

(c)On Boxing day, 26 December, each year from 10.00 am until 2.00 pm.

Location of time with the father

6.The child’s time with the father will occur only in public places but not in any private residence or isolated location.

Prior Engagements

7.The mother…

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AGLC
Fiedler & Vitale (No 2) [2024] FedCFamC1F 584
Case
[2024] FedCFamC1F 584
Decision Date

CaseChat Overview and Summary

Mr Fiedler and Ms Vitale appeared before Smith J in the Federal Circuit and Family Court of Australia, where they sought a final determination regarding the parenting arrangements for their child, X. The parents had previously lived together briefly before the birth of X, but had not lived together since. They had been in dispute since the breakdown of an informal arrangement in 2016. The Court had previously made consent orders for the child to live with the mother and spend time with the father, which orders were in place at the time of the hearing. The father sought for the child to live with him and for the mother to have limited time with the child, while the mother sought for the child to live with her and for the father to have limited time with the child. The Independent Children's Lawyer, the mother, and the father all made submissions. Smith J considered the best interests of the child, including the safety of the child in each household, the views of the child, and the history of the parents. Smith J found that neither household was sufficiently safe for the child to live with either parent, but that the child's safety was slightly greater in the mother's household than the father's household. Smith J found that the child's views were genuine when he expressed his views in the first Child Impact Report, but that his views were infected by family violence when he expressed them in the second Child Impact Report and to the Independent Children's Lawyer. Smith J found that the mother had a history of mental health issues, suicidal ideation, and neglect, and that the father had subjected the child to family violence. Smith J found that the Department of Communities and Justice had repeatedly declined to intervene and that the Court must make a decision. Smith J found that it was in the best interests of the child for the child to live with the mother, for the mother to exercise sole long term decision making for the child, and for the child to spend limited time with the father. Smith J did not criticise the Department of Communities and Justice, who work with limited information and resources, and directed that the Reasons for Decision be provided to the Department of Communities and Justice for consideration of possible assistance to the mother's household or other action they deem fit. Smith J made orders for the child to live with the mother, for the mother to exercise sole long term decision making for the child, and for the child to spend limited time with the father. Smith J made orders to protect the safety of the child, including restraining the parties from allowing or permitting the child to spend time or come into contact with certain persons, from physically disciplining or assaulting the child, and from using illicit substances in the presence of the child. Smith J made orders for the mother to ensure the child's attendance at school and to attend all recommended medical appointments and therapies, and for the mother to provide a copy of the Orders and the Reasons for Judgment to the child's educational providers, treating medical practitioners, and the Department of Communities and Justice. Smith J made orders for the parties to communicate by text message only and for the parties to liaise and the child to be collected from school by the mother or her nominee and conveyed to the mother's residence by 4.30 pm on Friday 23 August 2024. Smith J made orders for the father to arrange to convey the child's clothes and other possessions in his care to the mother by 5.00 pm Sunday 25 August 2024.

Orders

Orders of the court

NCC 983 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR FIEDLER

Applicant

AND:

MS VITALE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

23 AUGUST 2024

THE COURT ORDERS THAT:

1. That all previous Orders be discharged.

2. For the avoidance of doubt, the undertaking made by Ms J on 20 October 2022 be discharged.

Parental responsibility and decision making to the mother

3. That Ms Vitale (born in 1985) (“the mother”) shall have parental responsibility for the child, X (born in 2016) (“the child”) and sole decision making authority in respect of all decisions concerning major long term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the child.

Live with the mother

4. The child is to live with the mother.

Time with the father

5. The child will spend time with Mr Fiedler (born in 1978) (“the father”) as follows, and not otherwise:

(a) Commencing 1 September 2024, on the first Sunday of the September being Father’s Day, from 10.00 am until 2.00 pm; and,

(b) Commencing Sunday 20 October 2024, on the third Sunday of each month, other than September and December, from 10.00 am until 2.00 pm; and,

(c) On Boxing day, 26 December, each year from 10.00 am until 2.00 pm.

Location of time with the father

6. The child’s time with the father will occur only in public places but not in any private residence or isolated location.

Prior Engagements

7. The mother may suspend this time to ensure that the child does not miss out on a prior engagement, such as a school camp or other engagement, or during school holidays if the child will be away, on condition that the mother provide at least 7 days’ notice and that make-up time is provided on a Saturday or Sunday within a period of 4 weeks before or after the missed date.

Changeovers

8. Changeovers shall occur at the mother’s home with the mother to remain on the front veranda and the father to park at the end of the mother’s driveway and remain in the car.

Communication with the father

9. That the child shall have a video call with the father (or phone call if needed):

(a) each Wednesday at 4.30 pm for no more than 30 minutes; and,

(b) on the child’s birthday at 4.30 pm for no more than 30 minutes; and,

(c) on the father’s birthday at 4.30 pm for no more than 30 minutes; and,

(d) and for the purpose of this order the father will place the call to the mother’s nominated device and the mother will ensure the phone is switched on, charged with appropriate phone service and will ensure that the child is available to answer the call.

Authority to communicate and obtain information

10. That these orders be sufficient authority for the father to obtain all information about the child from his school, including but not limited to newsletters, circulars, reports, school photos, behavioural management plans, at his own cost, but not to interfere in the child’s educational decision making which resides solely with the mother, and may be provided to any school.

11. That these orders be sufficient authority for the father to obtain all information from the child’s medical providers at his own cost, but not to interfere in the child’s medical decision making which resides solely with the mother, and may be provided to any treating medical provider.

Communication between the parties

12. That parties will communicate by text message only except in cases of emergency.

13. The parties will only communicate in relation to the child and no other issue.

14. All text message communication will be civil.

Restraints and injunctions on parties

15. That each party be restrained by injunction pursuant to s 68B and or s 114 of the Family Law Act 1975 (Cth), for the safety of the child from:

(a) Allowing or permitting the child to spend time or come into contact with, or have communication with, Ms D or her children; and,

(b) Allowing or permitting the child to spend time or come into contact with, or have communication with, Mr E; and,

(c) Allowing the child to live with, or in a household with, or spend overnight time with, Mr G; and,

(d) Allowing or permitting the child to be in the unsupervised company of Mr G; and,

(e) Denigrating the other party, their family or friends in the presence of hearing of the child or permitting the child to remain in the presence or hearing of any third party doing so; and,

(f) Physically disciplining or assaulting the child (either by using their hand, another body part, or an object), or allowing anyone else to do so, and must immediately remove the child from the presence of anyone physically disciplining the child or attempting to do so; and,

(g) Permitting the child to be exposed to Family Violence or remaining in the presence of any person engaging in family violence, and shall immediately remove the child from the presence of anyone engaging in family violence behaviour; and,

(h) Using illicit substances in the presence of the child or whilst they are responsible for his care, or within 48 hours prior to the child spending time in their care; and,

(i) Discussing these proceedings or any other litigation involving the parents in the presence or within the hearing of the child.

16. The father be restrained by injunction pursuant to s 68B and or s 114 of the Family Law Act 1975 (Cth), for the safety of the child from consuming alcohol in the presence of the child or whilst he is responsible for the child’s care, or within 48 hours prior to the child spending time in his care.

Mother to ensure schooling

17. The mother must ensure the child’s attendance at K School on all days that the child is required to attend school, or must forthwith:

(a) do all acts and things and sign all documents necessary to enrol the child into his locally zoned public primary school; and,

(b) ensure that the child attends that school on all days that the child is required to attend school; and,

(c) notify the father of which school the child has been enrolled in.

Mother to ensure treatment

18. The mother will ensure the child attends upon all recommended medical appointment and therapies until discharged by the service provider.

Keeping informed

19. Each party shall keep the other party informed of their current residential address and a text number which may be used for communication.

20. The mother shall notify the father of the names and addresses of the child’s school and treating medical practitioners from time to time.

21. Should the child be injured or become ill and require emergency medical attention whilst in the father’s care he shall notify the mother immediately.

22. Should the child become seriously injured or ill or require hospitalisation the mother shall notify the father within a reasonable period.

Provision of orders to school

23. The mother is required to provide a copy of these Orders to the child’s educational providers.

Provision of orders and Judgment to medical and allied health treaters

24. The mother is required to ensure that the child has, at all times, a current treating general practitioner and, if and for so long as recommended by the general practitioner, a current treating paediatrician.

25. The mother must provide a copy of these Orders and the written Reasons for Judgment to the child’s current treating general practitioner and current paediatrician Dr L, consultant paediatrician, and to any new practitioners if there is a change.

26. The mother may provide a copy of these Orders and the written Reasons for Judgment to the child’s treating psychologist, counsellor or other practitioner.

DCJ - provision of Orders and Judgment

27. A copy of these Orders and the written reasons for Judgment are to be provided to the NSW Department of Communities and Justice (“DCJ”) in relation to the child, his siblings and paternal cousin.

Informing the child of these orders

28. A copy of these Orders and this Judgment is to be provided to the Court Children’s Service and to the Court Child Expert.

29. Court Children’s Service and the Independent Children’s Lawyer are requested to liaise, and to explain the effect of these orders to the child in an age appropriate manner.

Notifications to DCJ

30. Court Children’s Service are to consider these reasons for Judgment and to make such notifications to DCJ as are considered appropriate in relation to the child and to any child identified in the reasons for Judgment residing in either the mother’s household and the father’s household, and DCJ may be provided with, and have to access, to all affidavits, all evidence admitted, and all materials marked for identification, in these proceedings.

Change of residence

31. The parties are to liaise and the child is to be collected from school today by the mother or her nominee if possible, and if not possible is to be collected by the father or his nominee, and conveyed to the mother’s residence by no later than 4.30 pm Friday 23 August 2024.

32. The father is to arrange to convey the child’s clothes and other possessions in his care to the mother by 5.00 pm Sunday 25 August 2024.

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.

Background

Background to the litigation

Also, Court Children’s Service, as a mandatory reporter, may make such notifications as are appropriate to the Department in relation to all of the children in both the father's and the mother's households. In particular the child, the child's three half-siblings and also H, who lives with the father, who I find is likely a child who has also been exposed to the same family violence the child has.BACKGROUND The parents met in 2015. Their relationship lasted some months. It ended prior to the child's birth. They have never lived together. There was a dispute as to whether the mother informed the father she was pregnant, or whether the mother did not inform him she was pregnant until the child was an infant. It is common ground the father did not meet the child until the child was a number of months old. Prior proceedings The parties entered into an informal arrangement where the child lived with the mother and spent time with the father. They attended mediation in 2016 and agreed on time between the child and the father on the weekend and two days during the week. This agreement broke down. The parties disagree as to why it broke down. I do not need to make a finding. The father commenced the prior proceedings in about March 2018, after having not spent time with the child for a number of months. The mother says the father had stopped spending time with the child, and she was surprised he commenced proceedings. He says she was not complying with their agreement. Final consent parenting orders made on 26 February 2021 had the child live with the mother and spend time with the father each alternate weekend and for half of school holidays, with provision for special occasions that gave the mother sole parental responsibility with an obligation to notify, consult and consider, and included a range of relatively standard ancillary orders. I will come later to the fact that it is appropriate for the Court to have and to reconsider those final orders. In 2021, as a result of having become aware of an AVO between the father and his partner, Ms D, arising out of an incident also in 2021, which will be considered in some depth later, the mother ceased time contrary to those orders. Despite correspondence from the father's solicitors, the child did not spend time with the father between late 2021 and early 2022. In 2022, the mother called and texted the father. The father says that the mother advised that she had had a fight with the maternal grandmother, Ms J, with whom she was living and asked him to pick up the child. The father says that when they met and the mother told him that the maternal uncle, Mr G, had assaulted or attempted to assault the child and that when she, the mother, had intervened the maternal grandmother had yelled at her and threatened to call DCJ about her assaulting a child. The father says the mother told her that the maternal grandmother kicked her and her children out of her home which they were living in with the maternal grandmother and the maternal uncle, and the child and the other children.

Evidence

Evidence Before The Court

On 14 March 2024, the matter was set down for final hearing, commencing 15 July 2024. Trial and evidence The trial commenced on Monday, 15 July 2024, for five days in the Town Z Registry. All parties, including the ICL, were represented by counsel. The applicant father provided a court book (MFI 1) and relied upon:(1)Amended Initiating Application sealed 17 June 2024;(2)Notice of Child Abuse, Family Violence or Risk dated 12 April 2022;(3)Trial affidavit of the father filed 20 May 2024;(4)Affidavit of father’s partner, Ms D filed 22 May 2024;(5)Affidavit of the paternal grandfather, Mr O, filed 22 May 2024;(6)Submissions Bundle, including a minute of orders sought and written submissions, (MFI 10). He also supplied a tender bundle (MFI 2) from which various documents were tendered which will be referred to if relevant. The respondent mother provided a court book (MFI 3) and relied upon:(1)Further Amended Response filed 22 May 2024;(2)Trial affidavit of the mother filed 22 May 2024;(3)Submissions Bundle filed 9 July 2024, including updated minute of orders sought and written submissions (MFI 11). She also provided a series of tender bundles (MFI’s 4, 5 and 6) of potential documents. She also provided six social media videos made by Ms D and posted to her online account, which I will discuss later. The ICL filed a court book (MFI 7) and relied upon the following documents: (1)Child Impact Report of Ms B, dated 29 August 2022 (ICL 1);(2)Family Report dated 17 March 2023 (ICL 2);(3)Family Report Addendum dated 28 September 2023 (ICL 3);(4)Submissions Bundle filed 10 July 2024 (MFI 12). Virtually the whole first day of the trial was spent by the parties in negotiation. The parties then jointly proposed final consent orders, which were MFI 13. Those orders proposed, amongst other things, that the child live primarily with the father and that there would be joint decision-making, with time to be spent with the mother each alternate weekend from 5.00 pm Friday until 7.00 pm Sunday and for half school holidays. Exercising my obligation to the child, having read all the material, including the troubling material in the Family Reports which raised significant concerns in both households, but also, having noted what was said by the child in the first report, and significantly, having reviewed one of Ms D' social media videos, which was, in effect, her audio-visual diary, in which she claimed long-term ongoing family violence by the father, who she described as a narcissist, and in which she described, in some distress, her attempts to remove herself from that family violence situation, I declined to make the orders without hearing the evidence and testing the allegations of risk in the father's and the mother's household on the basis that whilst the proposed orders might yet be made, if I was satisfied they were appropriate, it seemed to me that this was a case that required a hearing before orders could be made, as sometimes occurs in this jurisdiction.

Decision

Reasons for decision

And on the other hand, there is the mother who has a history of mental health issues, suicidal ideation, will not engage with mental health services, will not accept help, does not admit the risks posed to the child by M or S, has limited parenting capacity, may use marijuana again to self-medicate, in the best circumstances is still likely to neglect the child, both educationally and medically, and as I have said, although she may not be morally culpable as her mental health issues may be why she cannot seek mental health help, none of those things makes the child any safer in her household.DECISIONBest interests of the child The obligation is to consider the best interests of the child under Part VII of the Act. The objects are (s 60B) (a) to ensure that the best interests of children are met, including by ensuring their safety; and (b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989. The Convention is picked up in a particular way by the way in which the Act is structured. Section 60CC Section 60CC provides the outline of how to determine the child's best interests. Starting with the general considerations, I am required to consider what arrangements would promote the safety, including safety from being subjected to or exposed to family violence, abuse, neglect or harm for the child in each person's care of the child. For reasons I have discussed, I consider the child's safety is likely to be slightly greater in the mother's household than the father's household, although the mother's household could not, on any reasonable view, be described as safe, given the risks posed to him by M in particular, also by S, and the risk, if not likelihood, of ongoing neglect by the mother. The child's views were set out in different expert reports. I consider the child's genuine views were those expressed in the first Child Impact Report, and that having made disclosures, which he did not wish to disclose to the father, when the father was made aware of those disclosures, it is clear the child was spoken to by both Ms D and by the father in circumstances where he was living with the father and being subjected to family violence. He then changed his position because he was rightly scared of maintaining it. It is one of the grave risks of seeking children’s views as required by the Act consistent with Article 12 of the Convention. To the extent to which the child's views expressed to the ICL through the meeting at school prior to the last day of trial, was said to be three days with his mother and four days with his father, I find that that was also likely infected by the fact that where he had made genuine disclosures, and asked that they not be told to the father, and they were told to the father, that he has likely suffered further family violence as a result of the disclosure. No weight can be given to the genuineness of his most recently expressed view, or limited weight. I do accept that the ICL and the mother, who would be best placed to know, do consider the child wants to maintain a relationship with the father. I have indicated that there are reasons why it can be appropriate, that this will stop the child thinking it is his fault, allow the child to understand the father better as he grows, to put context around the family violence he has experienced, to maintain a relationship with H.

Ratio Decidendi

Legal Principle Established

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