GATTINI & GATTINI

[2020] FCCA 1609

FEDERAL CIRCUIT COURT OF AUSTRALIA

GATTINI & GATTINI [2020] FCCA 1609

Catchwords:
FAMILY LAW – Parenting – interim hearing – prior orders children live with mother and spend time with father – father retains children – mother says father is exaggerating her mental health condition to retain children and change prior orders – mother alleges father and real estate agent, her security consultant, removalist, cleaner, her prior GP, her friends and her family are all engaged in a conspiracy to stalk her and set her up to look like a prostitute – father alleges mother’s prior mental health condition has deteriorated and that she is suffering paranoid delusions and is an unacceptable risk – police record multiple complaints from mother about many people but cannot investigate as she will not provide information – mother complains to police of people following her into police station then were identified by police as being there to report for bail – police note mother appears paranoid – father says police advised him to retain children – police notes do not explicitly support father’s version of events of police telling him to retain children – uncertainty of police event reference notes – mother tells school she knows she sounds like she is paranoid but the situation is real – police tell school they could not see a way to schedule mother – mother’s treating psychiatrist’s evidence is that he has not made any formal diagnosis of Bipolar Affective Disorder, psychotic episodes or ADHD – doctor has assumed fact that mother’s complaints are credible – doctor’s process of reasoning not exposed – ipse dixit – no weight placed on treating psychiatrist’s opinion – independent psychiatrist available to examine and report within 8-10 weeks – children to live with father and spend supervised time with mother.

Legislation:

Family Law Act 1975 (Cth), ss.68L, 69ZL , Part VII, Part VII div 5, 64B, 65D,

60CA, 65AA, 60CC(2), 60CC(3)

Evidence Act 1995 (Cth), s.78

Cases cited:

Mazorski & Albright (2007) 37 Fam LR 518

Banks & Banks [2015] FamCAFC 36

Goode & Goode (2006) 36 Fam LR 422

Marvel & Marvel [2010] FamCAFC 101

Eaby & Speelman (2015) FLC 93-654

Deiter & Deiter [2011] FamCAFC 82

SS & AH [2010] FamCAFC 13

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

Dasreef Pty Limited & Hawchar [2011] HCA 21

Padanowska & Padanowski [2020] FamCAFC 97

Cimorelli & Wenlack [2020] FamCAFC 58

B & B (1993) FLC 92-357

Applicant: MR GATTINI

Respondent: MS GATTINI

File Number: SYC 4533 of 2018

Judgment of: Judge B Smith

Hearing date: 4 June 2020

Date of Last Submission: 4 June 2020

Delivered at: Sydney

Delivered on: 11 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Campton S.C.

Solicitors for the Applicant: Branston Neville

Counsel for the Respondent: Ms Dart

Solicitors for the Respondent: Swaab Attorneys

ORDERS

1. The proceedings are transferred to the Family Court of Australia at Sydney to be listed for directions before a Registrar on 28 September 2020 at 9:30am.

2. Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer be appointed for the children X born in 2008, Y born in 2011 and Z born in 2013.

3. The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the children.

4. The Court advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of NSW of this order forthwith.

5. Each party make available to the Legal Aid Commission of NSW (Sydney Office) forthwith copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

6. The parties facilitate the attendance upon his/her representative of the children at times and dates requested by that representative.

7. Leave be granted to the Independent Children’s Lawyer to issue more than five subpoena.

8. Liberty is granted to the Independent Children’s Lawyer to relist the matter on short notice if the Independent Children’s Lawyer considers it necessary.

9. Pursuant to Part 15 Rule 9 of the Federal Circuit Court Rules, that Dr A be appointed as Single Expert Witness (hereafter referred to as “the Expert”) to enquire into and report upon matters relating to the welfare of the child and that in providing this report to the Court, to consider the following matters:

   (a)Whether the child is at risk of being exposed to any physical or psychological harm or from being subject to or exposed to abuse, neglect or family violence;

   (b)any views expressed by the child and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views; 

   (c)the  relationship of the child with  each of the child's parents and any other relevant person;

   (d)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (e)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other person with whom the child has been living;

   (f)the capacity of each parent and any other person to provide for the needs of the child, including emotional and intellectual needs;

   (g)the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents (or any other relevant person);

   (h)The effect on the child of any family violence to which they may have been exposed;

   (i)The effect on the child of spending equal time, or substantial and significant time, with each parent having regard to the parent’s current and future capacity to:

   (j)Implement such an arrangement; and

   (k)Communicate with each other and resolve difficulties that might arise;

   (l)The mental state of both parents in so far as it relates to parenting issues;

   (m)The mother’s capacity to give instructions;

   (n)The Expert’s opinion concerning the allegations of abuse of the child; and

   (o)Any other matter the expert considers relevant.

   I DIRECT that, upon completion, the expert report be forwarded to the Court via [email protected].

10. The father is to pay for the Expert Report in the first instance.

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1. The Orders of 6 August 2018 be temporarily suspended pending further Orders.

2. The children are to live with the father.

3. The children are to spend time with the mother at times agreed between the parties, or failing agreement:

   (a)Each Sunday for a period of 4 hours as agreed, or failing agreement from 10am-2pm, and

   (b)Each Wednesday after school for a period of 2 hours.

4. The mother’s time is to be supervised by:

   (a)The existing supervisor / nanny, if the parties agree;

   (b)B Contact Centre, or of such other professional supervision service as the parties agree.

5. The parties shall share equally in any cost relating to supervision.

6. The parties shall forthwith do all things and sign all documents necessary to retain the services of a professional supervision service.

7. Each party and their servants and agents are restrained by injunction from denigrating the other party in the presence of the children, or discussing these proceedings with or in the presence of the children.

AND THE COURT NOTES THAT:

(A)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4533 of 2018

MR GATTINI

Applicant

And

MS GATTINI

Respondent

REASONS FOR JUDGMENT

1. These are short form oral reasons for decision pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”) in an interim application for parenting orders within Part VII of the Act. Whilst written reasons are always preferable, the delay that would be involved and the urgency of the matter mean that in my opinion it is more appropriate to deliver short oral reasons now than to wait to be able to provide a decision in writing.

2. The short factual background of the matter is that it involves Ms Gattini and Mr Gattini, both now 38 years of age.  They commenced cohabitation about 2004, married in 2004, separated in January 2017, and divorced on 9 August 2018. 

3. They have three children:  X, Y, and Z.  X was born in 2008 and is 11; Y was born in 2011 and is 9; and Z was born in 2013 and is 7. 

4. The parties had Consent Orders which were entered into in 2018.  However, the matter comes before the Court because of events that occurred on about 17 April 2020 when the children were, in effect, kept by the father, and where he says they should now stay and live with him because the mother poses an unacceptable risk.

5. Before I go into the factual matrix, I will quickly consider the legal principles that bind me, noting that this is an interim application and noting that the parties have agreed there should be an assessment by a psychiatrist, Dr A, which is available to occur within about the next eight weeks. What we are looking at today is not what should happen to the children for the next 10 years or even 12 months, but what should happen for the next three to five months whilst the parties further investigate the issues. 

6. I note the parenting orders which I will make today are as defined in Part VII division 5.  I note section 64B and the Court’s powers in 65D.  The paramount consideration is to the best interests of the children.  I note sections 60CA and 65AA, and that the primary considerations to be taken into account when determining the best interests of the children are set out in section 60CC. 

7. First and foremost, my duty as a judge of this Court is to protect the children from any physical or psychological harm or from being subjected or exposed to abuse, neglect, or family violence.  Secondly, it is to look to the benefit to the children of having a meaningful relationship with both parents.  The statute requires that greater weight be given to the first of those principles, which is the obligation to protect the children, and in this case, to protect them from the risk of physical or psychological harm.  These are the twin pillars referred to in Mazorski & Albright (2007). 

8. There are an extensive set of additional considerations set out in section 60CC(3).  However, it is for the parties, as it was said in Banks & Banks, to define the issues, and as in so many interim applications, the large list of additional factors were not relied upon by the parties. 

9. Here, the question is risk, on the one side, and the question of whether the father holding the children was merely a forensic attempt made in bad faith to advance his desire to now have the children live primarily with him on the other. 

10. I note that the difficulty that faced me on, effectively, a first return of the application has been one that faces decision makers in this Court and in the Family Court often.

11. As it was said in Goode & Goode (2006):

    In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and dispute between the parents as to what constitutes the best interests of the child.

12. It was also noted that:

    In interim proceedings, there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.

13. I note that I have indicated I do not intend to make findings as to parental responsibility at the moment, and it was not suggested to me that was inappropriate, so I will not consider that question at the moment.  I note what I said earlier, and I repeat what was said in Marvel & Marvel (2010) about an interim hearing and the orders I will make today, that these are:

    A necessary but temporary measure until all the evidence can be tested, evaluated, and weighed at a final hearing.

14. I also note that because of that fact, while I have had affidavits and some documents put before me, there was no chance to have independent expert evidence and no chance to see the parties examined and cross-examined.

15. I also note that the parties have not had a chance to investigate matters in detail, that this can only be a preliminary consideration, and for that reason, any factual finding to be made at this interim hearing must be:

    …couched with great circumspection.

16. And indeed while the Court is, weighing likelihoods rather than making findings at this stage, as was said in Eaby & Speelman (2015):

    That does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

17. In a case such as this where there are so few agreed facts that rings particularly true.  The obligation to protect the children from risk of harm is at the centre of this case, and I will come to that in more detail, but in assessing risk of harm, and in the approach the Court should take at an interim hearing, this Court is bound by what the Full Court said in cases such as Deiter & Deiter (2011), as one example, where they said:

    The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

18. And as was said in SS & AH (2010):

    Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

19. And those principles, which I am bound by, are particularly relevant to this case, given the very significant differences between the parties as to what the true facts are. 

20. There was a lot of material put before me, but when I looked to what must happen in the next months, it is really about risk, and there are, in effect, two competing case theories put before me on this interim application.  The father’s case is that the mother, who has suffered even on her own case from long-term mental health issues – and which he says these have worsened recently – have developed into what are, in effect, paranoid delusions. 

21. The essence of his evidence in at paragraph 35 of his first affidavit.  In summary on 17 April 2020 he received a voicemail message from a Constable Mr C from the NSW Police, asking him to contact her urgently with respect to the mother.  He says that they had a phone conversation and that the police officer asked him as to his knowledge and view of the mother’s mental health. 

22. Now, of course, we have not heard from this constable.  We have some notes which I will come to in a moment, but one thing that has been said on many occasions is that police event notes are not meant to be a full statement of evidence.  They are not an affidavit.  It is not the considered note someone makes when preparing to go to court.  What they are is a running summary of things that occur at a police station and on duty.  Not everything can be noted, and sometimes errors creep in, so the police material is incomplete on any view.

23. But in any event, the father says that the police officer informed him that the police held grave fears for the mother’s mental health and recommended that he not return the children to the mother. 

24. The mother’s case is that the father wanted to change the existing orders, which have the children live with her primarily and spend time with him, and that he has, it appears she is saying, fabricated this conversation (I will come to the evidence about that in due course) and that the father is overstating her mental health concerns.

25. Her case is that whilst she has some mental health concerns, they are no more severe than those of many in the community who live normal lives and work and that they pose no risk to the children. 

26. As I have said, this case falls very clearly into the kind of cases referred to in the authorities I mentioned, where there are very few agreed facts and where we have a situation where it is difficult to know – indeed, I will say it is impossible to know the truth at the moment, so the Court can only weigh the competing possibilities.

27. Now, the mother, in her additional submissions, makes the case that the father, in paragraph 35 of his affidavit, gave evidence that the police had advised him to retain the children and not return them to the mother on the date. 

28. Her submissions state that:

    The document produced by the Police juxtaposes the sworn evidence of the father, such that, either: the father’s evidence in this matter is a calculated deception or recklessly misleading and grossly inaccurate, or the Police documents are inaccurate. 

    The mother’s submission continued:

    It is critical that the father has at all times said that it was on receiving the firm advice of the Police that he retained the children.

29. I will deal with that issue now, because during the course of argument, I asked senior counsel for the mother what difference it made to my risk assessment on an interim basis and to the orders I was to make if, in fact, it turns out that it is not an inaccuracy in the police documents or a lack of completeness in the police documents, but what if the father, in fact, decided, without that input from the police, to keep the children, based upon the material I will consider. 

30. That was not ultimately something which I believe was addressed in the mother’s submissions, so I will indicate that although I am not satisfied – and, indeed, it is a question, in fact, and I could not make a finding – I am not satisfied the evidentiary issues raised by the mother would sustain a finding that the father was intentionally being deceptive.

31. I have formed the view, without making a finding against him, that even if the father was not being honest about that, even if the father was told by the police they could not advise him, even if no one made any comment as he says saying, “You should keep the children”, then nevertheless it is for me to consider the risks based upon the material I have, and to consider what is in the best interests of the children.

32. That is, this is rather than to consider whether the father has acted deceptively in that respect.  If he formed the view that the children were unsafe, and I reach the same conclusion, then it makes no difference, assuming I think he was right to keep the children, whether in fact the police told him to keep them or not, and while that may be something that affects his credit at a final hearing, again, this is an interim hearing.

33. There was voluminous evidence allowed on this interim because of the nature of the contest.  Much of it may be relevant to a final hearing, but much of it cannot assist me to determine the critical issue of risk on an interim hearing to make orders for the forthcoming months. 

34. It seems clear to me that the critical evidence starts with the police material produced pursuant to section 69ZW.  That material, and, in particular, the event reference ... report dated 17 April 2020, which seems to have been created by the Constable Mr C, referred to previously, on 3 May 2020 at 1927 hours across two different narratives – narrative 1 of 2 and narrative 2 of 2, seems to me to be critical. 

1. I would not usually read onto the record the entirety of police notes, but I think in this case, it is essential that I do so.  It was recorded there that:

   On Friday 17 April 2020, the PR, Ms Gattini, attended the D Street police station to report the PN, Mr Gattini, and other PNs listed above for the following: tapping and disabling her phone, tracking her car and whereabouts, breaking into her home.  The PR started with reporting the PN, Mr Gattini, was having people watch her and set her up to look like a prostitute so she looks bad during her family law proceedings.  The PR was all over the place, saying she made reports to Suburb E police, ... relates and D Street police ... relates. 

   These reports have similar report content.  While speaking to the PR, she was very paranoid, looking around the station and checking for recording devices.  A member of the public would walk in to report for bail.  The PR told police the person was following her.  The PR did this several times.  The PR was rambling on all about the place with her story with what was occurring and when and who she thought was following her and tapping her phone at home. 

   Once an interview room was available, police took the PR into the secured room.  Whilst in the room, the PR refused to take her mobile phone into the interview room as she said it was tapped and she did not want those people to hear our conversation.  The mobile phone was left outside the interview room.  During the interview, the PR would stand up and look out of the viewing window to see if people were watching.  The PR stated she attended her children’s school and spoke with the principal … about people watching her and setting her up to look like a prostitute.  Suburb E police attended. 

   The PR made the following allegations … and PN2 building manager was setting her up to look like a prostitute.  On several occasions, Mr Gattini stalked the PR and entering her home at during the night when she was at home or out. Mr Gattini would move items about the house, put food into the coffee maker, and blend coffee in her blender.  He would move things from their normal spot around the house.  Mr Gattini deactivated the PR car keys.  This would turn her wipers and headlights on at odd times. 

   Mr Gattini disabled the PR mobile phones.  The PR was advised by an IT consultant to change phones and Mr Gattini disabled the new phone as well and hacked into the PR email account.  Mr Gattini would move the PR car from one spot to another whilst the PR was shopping.  She would find the car at the other end of the car park.  The PR woke up naked in the bath early one morning.  The PR was woken up with thumb sized bruises on her arms and she does not know how they got there.  The PR suspects Mr Gattini. 

   On 25 February 2020, the PR was shopping at Suburb F.  The PR boyfriend (PR refuses to give a name) resides in a unit on top of the shops.  The PR saw a male following her around the shops and the paediatrician.  He was driving a motor vehicle 1…. PR has the photo of male. PR told police her boyfriend was also concerned that the male was following her.  On 13 April 2020, the PR went shopping at … Suburb F between 9.30 am and 10 am.  A male followed her around the store, filming her. 

   The PR stated the sales assistant saw what was happening.  The police again asked the name of the witness.  The PR did not want to disclose her name as this would implement the sales assistant.  The PR said Mr Gattini hired people to follow and spy on her.  Whilst installing a security system at Suburb G address, PN 3 they have used a second-hand system.  The PR seems to think whilst the technician was installing the security system, he installed a camera in her downlights. 

   The PR accused PN3 of being perverts. PN3 would turn off the PRs security system through the day and night and change the PIN.  PN2 changed the locks on the PR front door and gave the keys and swipe cards out to other people.  The PR lost a swipe card to her building and someone left the two swipe cards in an envelope in her mailbox on her last day at the Suburb G address.  PN4, removalist, was sorting through the PRs belongings and somehow gained access to the Suburb G unit without the PR permission and they knew certain things about the PR life. 

   The PR does not remember disclosing any information to PN4.  They are spying on her.  PN5, the cleaner and carpet cleaner, knew the information about the PR she says she did not disclose to them.  The PR wanted police to help her with a tribunal case against real estate at Suburb H.  The PR was informed police do not get involved with civil matters.  PR stated to police she suffers from anxiety, depression, sleep deprived.  Last saw her GP and does not trust GP. 

   The PR stopped seeing a psychiatrist as the PR felt the psychiatrist was against her as she diagnosed the PR to have bipolar.  The PR is on medication Ritalin.  Police asked the PR if she needed assistance with seeking medical treatment for anxiety and depression.  PR replied, “No.  I just want you to investigate Mr Gattini.”  The PR and Mr Gattini share custody of three children:  Z, seven; Y, eight; and X, 11.  PR is primary carer during the school term. 

   Mr Gattini has custody during the weekends and midweek.  During the time of report, children were staying with their father, Mr Gattini, and had been since Easter Sunday as the PR was in the process of moving house.  The PR stated that they would stay with their father until she was ready.  The PR was unwilling to provide police with any witness details.  The PR was highly paranoid on the day … supervisor sergeant … appraisal of situation.  Advised to put allegations to Mr Gattini and possible child at risk for all children.  D Street.

2. And it continues in the next narrative:

   On 17 April 2020, police spoke to Mr Gattini, cautioned Mr Gattini, questions about the following.  Mr Gattini and PN2, the building manager were setting up to look like a prostitute.  On several occasions, Mr Gattini stalked the PR, entering her home at – during the day and night when she was at home and out.  Mr Gattini would move items around the house, put food in the coffee maker and blend coffee in her blender.  He would move things from their normal spot around the house. 

   Mr Gattini deactivated the PR car keys, would turn her wipers and headlights on at odd times.  Mr Gattini disabled the PR mobile phone.  The PR was advised by an IT consultant to change phones and Mr Gattini disabled new phone as well and hacked into the PR email account.  Mr Gattini would move the PR car from one car space to another whilst the PR was shopping.  She would find the car at the other end of the car park.  The PR woke up naked in the bathroom one morning. 

   The PR woke up with thumb sized bruising on the arms.  She did not know how they got there but suspects Mr Gattini.  Mr Gattini answered no to these allegations above and said his and the PRs relationship ended years ago, she has gotten worse.  The PR verbally abuses and his family every time they see each other.  Police enquired if the PR had any mental health issues he may know of.  Mr Gattini said, “No”.  Police asked Mr Gattini if the PR was a paranoid person and mentioned she was acting very paranoid when making the report. 

   Mr Gattini asked whether he should keep his children in custody.  Police advised him to speak to his solicitor in regards to custody issue.  Child at risk created for three children; Y, X and Z.  The PR solicitor also contacted police, asking advice re police children situation.  Police informed the PR and Mr Gattini’s solicitors this was not a police issue, all family law court related.  Report created for record only.  No further investigation.

3. The mother says that the father is stalking her, and unfortunately, that is something that this Court deals with on an all too frequent basis, and cyberstalking is becoming increasingly common.  This Court has to deal with people hacking emails and using phones to track other parties on an unfortunately regular basis. 

4. However, this police report is different to the standard ones that we consider, because the mother in this case says that not only is the father stalking her, she says he has enlisted in a conspiracy a variety of people, including the real estate agent, the security company – which, as I understand it she hired – the removalists and the cleaners. 

5. She says he has people following her and filming her, but she complained to police that some of the people following her were people who had followed her into the police station, and police said that those people she identified were there to report for bail. 

6. She has also said that she does not trust her GP, and she said that there is a psychiatrist she stopped seeing as the psychiatrist was against her and had diagnosed her with bipolar disorder. 

7. If the mother is right, she is the subject of a conspiracy on a vast scale.

8. Before I go further, I note that the mother did not contest that she had made these complaints. She knew it was an issue and she sought to address them in her first affidavit, however, she did not set out anything like that history in paragraph 11 of her affidavit of 13 May 2020. 

9. I note that the police are not psychiatrists or psychologists but do deal with many people, and that in the context of this report, they have said that they thought she was highly paranoid. 

10. One of the issues raised by senior counsel for the mother was that it was very unfair that the mother was criticised for making these complaints to police, for what should someone do if they feel they are being followed if they cannot complain to police. However, one of the issues then is that the mother was unwilling to provide the police with any witness details. 

11. This was a somewhat unusual event reference because one generally sees single events, but the police have taken the trouble, on 3 May 2020, to create an event reference covering the period, as they say, “between April 2018 and 17 April 2020”.  That is unusual in itself. 

12. As I have said, I think one needs to be careful with these narratives.  The mother placed great emphasis on the fact that according to the narrative, the father asked whether he should keep the children in his custody, but the mother’s senior counsel also pointed to the fact that where it says the PR’s solicitor also contacted the police, the mother says that this was at a later time. 

13. Again, clearly, as the many authorities state, when looking at this kind of narrative, one must look at it not as something created for the purpose of being tendered in court. 

14. I think that as the mother does not dispute that these are claims she has made, and did not dispute the factual statements about her complaints, that I should treat as a matter of fact for these purposes that it has been established that she has made all of these complaints to police. 

15. I note that the police have no interest in this case, and I note that I think if it applied, section 78 of the Evidence Act would still allow me to take into account the police lay opinion that her presentation to them they thought was highly paranoid, which is relevant  and goes to weight here.

16. I think it is also very important to go to a second independent source, which is the school notes.  At page 155 of the amended respondent father’s court book, there is a note which it was accepted was from the school, and again, I will go to the somewhat unusual measure of reading that on the record.  It relates to 2020, and that was not contested, as I understand it, and it says this (emphasis added):

    6/3:  Ms Gattini attended the school and wanted to meet.  Ms J sat in as Ms K not available.  Ms Gattini was very heightened but coherent.  Noted being very worried that she was being watched and monitored. Phone ghosted and followed by PI.  Explained hard to trust mutual friends as they are all in on the situation.  She noted she sounds like she is paranoid but the situation is real. She believes she has been drugged on the occasions when the kids are not with her and sexually assaulted. She talked about waking up in the bath at home and finding bruises on her arm and semen in her pants.  It was noted bruises were evident on her right arm on the inside of her bicep.  She talked about being set up by friends/family who are trying to say she is a sex worker.  She wanted to meet with police at school to avoid those following her understanding that she is contacting them.  We asked if she felt she is in danger and she agreed. 

    Noted police should be contacted.  She did not want Suburb E or anything before Monday.  Noted that we believe this should be done immediately.  She agreed to come into school at 2 pm today.  DS noted that the DOE safety and security would be contacted, and a second police officer spoken to for advice etc.  Called safety and security hotline.  Spoke with Mr L and then Ms M (seconded police).  Explained situation.  She agreed to contact Suburb E police and ask them to attend. 

    DS will run MRG after meeting with the police.  Mr N and Ms O from Suburb E police attended.  Spoke at length with Ms Gattini.  They could not see any evidence of a crime or any way to schedule Ms Gattini.  They concluded she presented with much paranoia and delusions.  Noted she did not follow up previous investigation with detectives.  Offered her to follow up with detectives and follow up previous investigations.  Completed MRG.  Recommended for DS to monitor/document at a school level. 

17. And the next entry on the page is:

    10/3:  Z and Y presented without lunch or crunch and sip.  Reported having no breakfast.  Ms Gattini came at 12 to drop lunch.  Reported kids did have breakfast.  Noted she thought that someone was following her to the school.  We went to check the woman who was allegedly following her had gone.

18. The mother did not suggest in submissions that she had not made those complaints.

19. From these two sources we now have, in addition to the father, complaints in relation to the real estate agent, the security company she had hired, the removalist she had hired, the cleaners, her own GP, her own prior psychiatrist, and a variety of people who were in fact walking into report for bail.  She also says that she does not trust her friends and family because they are also involved in trying to set her up. 

20. One of the issues that was raised by senior counsel for the mother was that the father refers in his evidence and a letter sent on his behalf to the police raising scheduling the mother. Much was made of the fact that no reference to the police not being able to schedule the mother was in the police notes, suggesting it was made up by the father, yet it is quite clear from these school notes that it was something that the police had in mind and they raised it with the school.

21. I think it is very significant that the mother says, “She noted she sounds like she is paranoid, but the situation is real”, and I think that is a very fair summary of the position. 

22. Clearly, the police believe that she is suffering from paranoid delusions. 

23. If what she says is true, she is the subject of a conspiracy at a vast level which, just because of the cost, could usually only be coordinated by a government or major corporation, given the cost of hiring private investigators and undertaking these other matters.

24. As she says, if it is not true, then it is paranoid, but she says that this is all true.  The difficulty is that it has not been investigated, but that is because she has not provided police with material that would allow them to investigate. 

25. The mother’s case is that she has a treating psychologist, Dr P. The mother provided evidence from Dr P and I read his reports of 6 May 2020 starting at page 143 of the mother’s bundle, and of 2 June 2020.

26. That report dated 6 May 2020 says he has been seeing her since May 2017 and she usually sees him every three to six months, and she was first referred in May 2017 with anxiety and depressive symptoms.  At that stage, she had had a cluster of depressive symptoms for a one year duration.  The symptoms included pervasive low and flat mood and motivation, lethargy, insomnia and anxiety symptoms.  He said:

    Her main concerns have been the external factors of her observation in her privacy and security being breached, onset of relationship breakdown with her ex-husband and estranged acquaintances, legal matters of separation and divorce proceedings with her ex-husband and current Tribunal Tenancy Bond Case.

27. He stated he had diagnosed:

    Major depression in context of her acrimonious divorce, tenancy and personal privacy issues.  This is predominantly characterised by anxiety symptoms with themes of hypervigilance, in the context of going through a lengthy divorce process.  I can confirm I have not made any formal diagnosis of Bipolar Affective Disorder, psychotic episodes or ADHD.

28. Significantly, further on, he says:

    Despite the positive progress, Ms Gattini has insisted she has been stalked and has privacy issues.  This preoccupation causes noticeable mental distress.  I have consulted with Ms Q (her sister) on this.  It appears to me the contents of allegations are plausible. However it is difficult for me to comment the genuineness of these allegations without factual evidence, which she has supplied to Police.  Furthermore, I have not been able to elicit clear clinical evidence of psychosis, such as perceptual disturbances, ideas of references, or passivity phenomenon. I therefore have not made any diagnosis of psychosis or psychotic disorder.

29. He notes that she has consistently shown motivation to provide the physical and emotional requirements of the children, and that that had been the main motivating factor for her to seek help. 

30. The issue on the first return of this interim application was that Dr P appeared to base his view on the idea that the mother’s allegations were plausible.  As I have said, stalking is unfortunately common, but it was not clear at that stage that he understood the extent of the allegations and matter. 

31. Interestingly, he gave a further affidavit, and in that affidavit, he noted, at page 2 of 6 of the affidavit, that he had been provided with the police events and provided the short report of 2 June, where he maintained the position that:

    I can confirm I have not diagnosed her with psychosis or psychotic disorder. 

    He also said:

    I do not assess her as posing physical risk to her children.

32. A court is never bound by an expert, but will always consider a report and opinion carefully. 

33. As a matter of background, the Court prefers evidence from independent to treating medical practitioners.  There is a variety of reasons for that.  One is that there is a tension between the treating practitioner’s duty to their client and their duty to the Court. That tension is usually manageable, but it takes on a special quality when a psychiatrist is involved and when the issue is paranoia, where the evidence suggests the person no longer sees their GP and apparently no longer sees their prior psychiatrist because they do not trust them. A practitioner in that position must understand that if they do not provide a supportive report, their client may not come back to them in that context, and I think that that is relevant background.

34. However, one then goes on to consider the actual report, and it still seems quite clear that although he has considered the police reports, the doctor has not provided clear reasoning as to what his assumed facts are. Further it seems that Makita & Sprowles and in particular, Dasreef & Hawchar emphasise the need to make clear both the assumed facts and critically, in that latter case, to expose the reasoning process.

35. The law is very clear that a judge is not to merely say, “Well, I am not an expert in that field.  This person is an expert.  I cannot actually understand how they reach that conclusion, but they are the expert.  I must then be bound by it.”  To the contrary, a judge is never to do that.  A judge must not accept a mere “ipse dixit”, but must understand the assumed facts and must understand the reasoning process.  Although he says that he has seen the police material, in his second report Dr P makes no comment upon the reasonableness of her complaints. 

1. I can only assume, since it has not been made clear, that Dr P considers it theoretically possible, as indeed it is, that the father, the real estate agent, the security company, the removalist, the cleaners, the former GP, possibly a former psychiatrist, her friends and her family are all involved in a vast conspiracy.  However, if that is the factual basis of his opinion, then, on an interim basis, where the matters have not been obviously investigated, but have not been investigated because the mother has declined to give the police material that would allow them to be investigated, and in particular, where some of the people she has identified have been people walking into the police station who the police have identified as being there to report for bail, then even on an interim basis, I am not satisfied that the mother would have established a factual foundation sufficiently likely to allow me to accept that report.

2. If that is not the basis of Dr P’s opinion, then, I do not know what that basis is, and as I have said, it is quite inappropriate to suggest that a judge should merely accept the ipse dixit.  As I have said, I cannot make a finding of fact, and there is a whole variety of possibilities.  For example, it may be that the father has been stalking the mother and that this has heightened her sensitivity, and that that has led her to mistakenly think people walking into the police station behind her to report for bail are following her.  I do not know, but at the moment, I think I must accept the totality of the mother’s complaints, and, indeed, it was not put to me that the factual matrix was anything other than the complaints she makes to police of this very large conspiracy. 

3. I also note there was other evidence which I have considered. As I said, I allowed far more evidence than I usually would, the other material including that of Ms R, who I note is a clinical psychotherapist and not a registered psychologist contrary to the written submission.  She provides an affidavit, but she is a friend, so she is not independent.  She is not a treater of the mother.  She says they are good friends, and while she says she has never observed her to have a psychotic episode, when she considers her history, she merely says at paragraph 7 of her affidavit, that:

   Ms Gattini has told me she is being stalked and her phone is being tapped.

4. She was also told about a terrible event where the mother went out for dinner and drinks and when she got home, she felt like she had been drugged, blacked out when she was in the bath, and she said her presentation was not extreme.

5. It is clear that either Ms R did not have the full history that the police have recorded, or that have been recorded in both police and school notes, or else she did not record it in her affidavit. 

6. Either way, on the basis of the material, assuming that Ms R is being candid she does not know the full nature of the claims.  She also said, at paragraph 8, that when they were having dinner, the mother told her that she had put surveillance cameras into her house:

   While we were watching, we all heard a latch of a door open.  I was shocked to hear this because Ms Gattini was with us and the children were not at home.

7. Which raises the question where is the video?  Did someone enter the house?  If someone was opening the door, where is the video of the opening?  If there is surveillance video showing someone breaking into the house, why is it not tendered here?  How does she know that the sound was of a latch door opening?  Did she see the latch door opening?  The mother did not refer to this material.  It is interesting, and it may be relevant in a final hearing, but Ms R’s evidence does not assist me, given the other material.

8. I also note I have carefully considered the evidence regarding the health of the children from Dr S, and that troubled me greatly, especially the report that concerns Y dated 15 May 2020.  Y has a lot of troubles.  X has some, but less so.  The father’s case, as I understand it, is that they are difficulties that reflect, at least to some extent, the mother’s mental health concerns, but there is no evidence to support that, and I will not accept that as being established as a factor here. 

9. I do note that the children’s difficulties would strongly favour them staying at the same school and the same treating practitioner if that was possible. However, I note that the parties live a substantial distance away and it would not be realistic for them to live with the father and go to their prior schools, although if it is possible at least in the short term, they should continue to go to the treating medical practitioners. 

10. Senior counsel for the mother submitted that there was no evidence of risk in the mother’s care because there is no evidence of physical injury, but that with respect, confuses risk which is a potential, with injury which is risks which have come true. 

11. The fact that there has been no physical harm to date does not mean there is no risk. Across a very large period of time, as Priestley JA said in Makita, if there is meant to be a risk but nothing has happened, in certain circumstances, that inference can be drawn, but I do not think that is an inference that can be drawn here.  Also, it seems that the mother’s complaints are increasing only in the more recent times. 

12. The mother’s senior counsel also asked the question, what is the risk? I think it is perfectly obvious that if the mother’s complaints are not correct, and she is not being conspired against by all the people mentioned, including her family and friends, and if in fact independent people such as the police are correct when they say that she presents when making these complaints as having paranoid delusions, so that there is a possibility she has paranoid delusions, then quite clearly that mental health condition has a real likelihood of impairing decision making capacity. A person with impaired decision making capacity may have impaired parenting capacity, and particularly when under stress, they may make decisions which have the risk of causing real harm to the children.

13. I think it is clear that that is the case.  I note that senior counsel for the mother submitted that the Court could not act on the concerns that the mother has poor mental health and paranoid delusions because it would involve final findings of fact.

14. I assume he meant either as to the validity of her claims of being stalked or as to her mental health status, and he referred to Padanowska & Padanowski [2020] FamCAFC 97 Watts J’s decision, but I note in that case, there was a real issue about who sent the text messages.

15. I also note that in that case, at 11, his Honour said:

    The Full Court in SS & AH [2010] FamCAFC 13 at [88] said findings made in interim hearings should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

    But that is not to say that at an interim hearing a primary judge should ignore pertinent risks to a child based on serious allegations.  (Cimorelli & Wenlack [2020] FamCAFC 58 at [80]-[81]).

16. And it seems to me that if I was to accept the mother’s submission made by senior counsel on her behalf, that in many cases it would defeat the injunction placed upon this Court to act as best it can based on the evidence it has, because you cannot delay making a decision about child safety until all the evidence is in and is tested. That is because to fail to make a decision is a decision.  That applies here, and I think that this case on its facts is clearly distinguishable from Padanowska. 

17. If this was merely a case where the mother said that she believed the father was stalking her, then, the result may well be different. However, she alleges many people, including all of her friends and family and a former GP and etcetera are involved. In addition where I cannot understand how her treating psychiatrist has reached his conclusion, which seems to be contrary to common sense. I note that common sense is dangerous in expert fields, but that is why, as the High Court said in Dasreef & Hawchar that the expert must make clear their reasoning processes for a judge to understand, and that has not happened here.

18. It seems to me that when I undertake the risk assessment, given the extent of the apparent delusions, there must be considered to be a real risk of very poor decision making and, indeed, I would say that risk is moderate to high.  The consequences of a very poor decision, particularly a dramatic decision in circumstances of stress such as these proceedings, by a person who believes that she is subject of a conspiracy, if the mother is wrong could lead to very poor and possibly drastic decision making, and the consequences of that could be very dire for one or more of the children. 

19. There is a moderate to high risk of poor decision making, and I think there is a moderate to high risk of an adverse impact on the children of that. 

20. Once I undertake that risk calculus, and note that there is no similar risk to the children in the short term in the father’s care, and there was no submission to the contrary in terms of their general safety for the next three to four or five months, my view is that that risk calculus means that I am bound to find that, at least until there can be an independent assessment of the parties’ psychological and psychiatric and parenting capacity and of the risks by Dr A, then the children must reside with the father.

21. This is even though I have real concerns about the practical difficulties that flow from that of the children having to change schools and, possibly, treating practitioners, because of the distance apart that the parties live. 

22. It is unfortunate they live so far apart, but that is the reality of the situation, and the risk issue in my view must take precedence. 

23. I note that both parties agree there should be an independent children’s lawyer.  I will make that order.  The parties agree that they should attend upon Dr A, and I understand that there was an assessment available in the very near future.  I think the father should pay for Dr A in the first instance, and the mother should share in that cost of those eventually. 

24. I think Dr A needs to be asked about the mother’s capacity to make decisions in regard to this litigation.  I note that Dr P gave an opinion about that, but it is something that needs to be considered again independently. 

25. The father has asked for orders that the Court discharge the orders of 6 August 2018.  It seems to me that that is premature.  We do not know where this case will end up.  At the moment, we have limited evidence, and I have made the best decision I can based upon that limited evidence. 

26. I will not discharge orders yet.  I will suspend the orders of 6 August 2018.  The father seeks sole parental responsibility, but I cannot see why he needs that.  It also seems premature, and I will not make that order.  I do not think I need to consider that question at the moment.  The children are to live with the father.  I will not place the restraints upon the father moving their schools or changing their practitioners that the mother asked for.  If he lived nearby, then, I would insist they go to the same schools, but they do not live nearby.  They live 90 minutes or so away, depending upon traffic, and it is just unrealistic for them to continue, unfortunately, at the same schools.  It troubles me that that is the effect of the order, but I have had that in mind when I have considered and weighed the matters and the risks to them, and I think that the difficulties of the changes are less than the risks at the moment of being returned to the mother.  I note that it would be pleasing if, as it was suggested, the father was able to maintain the children’s contact with the treating paediatrician who has their history, but I will not make that order because of the possible practical difficulties. 

27. I note that there should be supervised time.  I will make orders that facilitate, if the parties can agree on someone who is not a professional supervisor, then they should do so, but I note what was said in B & B about families and friends supervising.  I think at the moment the parties should share equally in the cost of supervision, since it is for the benefit of the children, and I will make orders regarding that.  I note that I think the father’s suggestion that the mother should be solely responsible for cost of supervision is quite wrong, even though I note he currently has the care of the children. 

28. As I have said, this is what is best for the children and clearly, maintaining a relationship with the mother under supervision is what is best for the children.  

29. I will hear the parties on whether this matter should be transferred to the Family Court of Australia, given the allegations that have been made as between the parties and the likelihood that this case will require a degree of supervision and attention that a judge with a docket of approximately 350 cases may not be able to give it. Also, the likelihood that, ultimately, particularly if the mother runs her case of stalking, there is no prospect it could be heard in the time limits that are applicable in this Court.  It may be a question of when it is appropriate to transfer the matter.

30. Those are my reasons.  I will publish my orders in writing. 

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge B Smith

Associate: 

Date: 18 June 2020