Gallato & Cellini & Anor

[2016] FamCA 233

FAMILY COURT OF AUSTRALIA

GALLATO & CELLINI AND ANOR [2016] FamCA 233

FAMILY LAW – CHILDREN – Parenting and machinery orders – mother’s mental illness justifies further alteration to orders.

Family Law Act 1975 (Cth)

APPLICANT: Ms Gallato

RESPONDENT: Mr Cellini

2^ND RESPONDENT: B Pty Ltd

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11073 of 2015

DATE DELIVERED: 11 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 11 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cummings

COUNSEL FOR THE RESPONDENT: Mr Parker

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

COUNSEL FOR THE 2^ND RESPONDENT

SOLICITOR FOR THE 2^ND RESPONDENT

Ms Lockie

Gadens Lawyer

COUNSEL FOR THE INDEPENDENT

 CHILDRENS’ LAWYER:

Ms Boymal

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

1.That the solicitors for the wife forthwith file a Notice of Address for Service.

2.That all outstanding interim applications are adjourned to the Judicial Duty List on 5 April 2016 to be consolidated with the proceedings listed that day.

3.That UNTIL FURTHER ORDER, the children B (female) born … 2009 and C (female) born … 2012 ("the children") live with the father.

4.That until further order the mother, her servants and/or agents be restrained from removing or attempting to remove the children, or either of them, from D School, or such other school at which the child B may be enrolled, and E Centre, or such other childcare facility at which the child C attends or is enrolled.

5.That the father is to continue to ensure that the children continue school enrolment and attendance at an early learning centre.

6.That in the event that the mother, her servants and/or agents remove or attempt to remove the children, or either of them, from their school or childcare as provided herein, the father have urgent liberty to apply for other orders and including a recovery order without notice to the mother.

7.That the objection by F Hospital to the production of documents under subpoena is adjourned to 5 April 2016 in the Judicial Duty List at 10.00am.

8.That the solicitor for the husband forthwith notify the objector of that return date.

9.That paragraph 8 of the orders made on 19 January 2016 is varied to read as follows:

(a)that between the hours of 10.00am and 1.00pm on Saturday 19 March 2016, the wife vacate the premises at G Street, Suburb H and not return there until 1.00pm; and

(b)the father have access to the said property for the purposes of collecting his clothes and personal effects together with such clothing of the children as he otherwise needs.

12.That the reasons this day be transcribed and be placed on the court file.

13.That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gallato & Cellini and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11073 of 2015

Ms Gallato

Applicant

And

Mr Cellini

Respondent

And

B Pty Ltd

2^nd Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1.This application was adjourned by the senior registrar on 9 February 2016 until today.  On any reason of those orders made that day and the reasons for judgment, it is a sad and most unusual case involving the children named in the order.  A number of things have happened today, one of which is that a solicitor is now acting for the mother.  As a result of discussions, he concedes, I think quite properly, that it is most likely that the mother will need a case guardian.  Obviously, without some evidence that would satisfy the Family Law rules it is not appropriate to make the order today, but he indicated he would endeavour to get instructions in relation to the issues about which there is still some controversy.  The case was stood down.

2.Upon returning to the court, it seems that the solicitor was unable to get instructions, and that is probably understandable, having regard to the matters that I have now read in a report tendered by consent of all parties prepared and dated on 3 March 2016 by psychologist, Dr I.  Dr I clearly is concerned about the mother’s presentation and about her mental health issues, and it is not necessary that I give any formal details.  The more important details can be seen in the way in which the senior registrar structured the orders back on 9 February.

3.In the absence of instructions from the mother, the court must take the matter as not consented to and, indeed, defended.  Absent the mother and any involvement by her, the matter can be treated as an undefended matter, but that still requires the applicant for any orders to prove the case.  Here, the issues are – and I shall deal with them sequentially – more or less, either enforcement of existing orders or variation of orders to give effect to what the senior registrar was endeavouring to deal with.  The first of the issues relates to a subpoena that was served upon the F Hospital and, in particular, the specific unit there which has been treating the mother.

4.The hosptial’s objection was filed with the court on 4 February 2016 and the senior registrar noted in his orders that it was adjourned until today.  There is nothing on the file to indicate that the objector has been given notice of that adjournment.  Mr Parker, on behalf of the husband, quite appropriately has indicated that if the objection is adjourned to the next return date, which is 5 April 2016 in the judicial duty list, he will bring the hearing to the attention of the objector and, to the extent they have a desire to be involved, they can then articulate their position.

5.The second matter relates to an order that the senior registrar made in paragraph 4 on 9 February 2016.  That particular order adjourned the proceedings and made a change, effectively, of residence of the two children only until today.  Having regard to what has now occurred, and the probability that there are serious mental health issues for the mother and, therefore, she is not in a position to care for the children, as she had been up until that time, it is appropriate that the order be altered to read, “Until further order.”  Accordingly, I propose to delete the words, “Until further order”, and also the words, “Whichever falls first”, and change paragraph 4 to read, “Until further order, the children (and their names) live with the father.”

6.On 19 January 2016 an order was made which gives rise to the third issue.  On that day a specific order was made, by consent of all parties, that the mother facilitate the attendance of the father at the property at G Street, Suburb H, for the purposes of enabling the father or his agent to collect clothes, personal property and motor vehicle.   It seems that the motor vehicle has now been repossessed, so, that is no longer relevant.  However, having regard to the mother’s current mental health state, the order, if it was to be enforced, may be problematic, having regard to its vague and general terms.

7.The basis of the power for the court to make the order for the mother to vacate for any time, lies in section 114(3) of the Act.  A court has the power to make any other order, including an order relating to access to particular premises, and in this case it seems to me that to give efficacy to the order, it should be abundantly clear.  I appreciate that the solicitor for the mother may have some difficulty explaining that order to her with her current state, but the father will no doubt be cognisant of the difficulties he may face if she does not give him access.  Rather than force the issue, it may be more sensible for the father to return to court and another method be then considered.  In those circumstances, I will otherwise adjourn the proceedings to 5 April 2016 in the judicial duty list where all matters will be consolidated in the list that day.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 March 2016.

Associate: 

Date:  14 April 2016