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

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.
Pursuant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: GATTINI & GATTINI [2020] FCCA 1609
Case: [2020] FCCA 1609
Decision Date: 11 June 2020

CaseChat Overview and Summary

This matter concerned an interim hearing in the Federal Circuit Court of Australia before Judge B Smith, involving allegations of parental alienation and mental health concerns. The mother alleged the father was exaggerating her mental health condition to retain the children and change prior parenting orders, further claiming a conspiracy involving various individuals to stalk and frame her. Conversely, the father contended that the mother's pre-existing mental health condition had deteriorated, leading to paranoid delusions and rendering her an unacceptable risk to the children.

The court was required to determine the immediate living arrangements for the children and the nature of their contact with each parent, given the serious allegations and the apparent deterioration of the parental relationship. Key issues included assessing the credibility of the parties' claims, the extent to which the mother's mental health impacted her parenting capacity and the children's safety, and the reliability of evidence presented, particularly concerning police interactions and the mother's treating psychiatrist's opinion. The court also needed to consider the children's welfare and best interests in making interim orders.

In its reasoning, the court placed little weight on the opinion of the mother's treating psychiatrist, noting a lack of a formal diagnosis and an apparent assumption of credibility without sufficient exposure of the reasoning process. The court also observed that police notes did not explicitly support the father's assertion that police had advised him to retain the children. Given the significant concerns regarding the mother's mental state and the potential risk to the children, the court made interim orders that the children were to live with the father and have supervised time with the mother. An Independent Children's Lawyer was appointed, and a single expert witness was directed to report on various welfare matters, including the parents' mental states and the children's risk of harm.

Orders

Orders of the court

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.

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.

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

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

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.

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

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

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.

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;

(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 associate.judgebsmith@federalcircuitcourt.gov.au.

10.

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

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

11.

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

12.

The children are to live with the father.

13.

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.

14.

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.

15.

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

16.

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

17.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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