Lombardi and Conti

[2007] FamCA 1489

FAMILY COURT OF AUSTRALIA

LOMBARDI & CONTI [2007] FamCA 1489

FAMILY LAW – CHILDREN – Magellan – Interim parenting – Father’s violence to children – Supervised time

Family Law Act 1975 (Cth)

FATHER: Mr Lombardi

MOTHER: Ms Conti

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 9091 of 2000

DATE DELIVERED: 16 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 16 November 2007

REPRESENTATION

SOLICITOR FOR THE FATHER: In Person

COUNSEL FOR THE MOTHER: Ms Kourtis

SOLICITOR FOR THE MOTHER: Hale & Wakeling

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms C.J. Jenkins

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Victoria Legal Aid

Orders

1. That for the purpose of clarifying paragraph (4) of the orders made herein on 28 June, 2007:

   (a)supervised contact between the father and the children F born … July, 1998 and L born … February, 2002 is not to commence until the therapeutic counselling provided for in paragraph (3) of those orders has commenced;  and

   (b)that any supervisor of the father’s time with the children be as agreed between the father or, if represented his lawyer, the mother’s lawyer and the independent children’s lawyer, save that it may be a matter discussed by the parties with the counsellor if the counsellor believes that to be appropriate. 

2. That the application filed 31 October, 2007 be otherwise dismissed. 

3. That the applications for final parenting orders be adjourned before the Honourable Justice Brown at 10:00 am. on 1 February, 2008. 

4. That the hearing date of 5 December, 2007 before the Magellan registrar be vacated.

5. That the question of costs of all parties be reserved.

6. That the reasons for judgment this day be transcribed and copies made available to the parties.

7. That a transcript of the hearing be obtained and placed on the court file. 

8. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel

AND THE COURT NOTES

The advice of the independent children’s lawyer that Dr. S has expressed her willingness to commence therapeutic counselling and that each of the parties are to do all things reasonably necessary to ensure that commences as soon as practicable. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF  9091 of 2000

MR LOMBARDI  

Father

And

MS CONTI  

Mother

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter involves the parties’ children, F, who is nine, and L, who is five.  Their parents married in 1998 and separated in April 2004.  In July 2004, orders were made which provided for the children to live with their mother and have contact with their father.  Those orders were varied, by consent, in August 2005.  On 26 July, 2006 the father filed an application in which he sought some additional time with the children, the discharge of a restraint on removing them from Australia, and an order that they spend equal time with him.  That application was filed in the month in which the amendments to the Family Law Act1975 came into effect.

2. In May this year the mother filed an application seeking that the father's time with the children be suspended.  At the same time she filed a notice of abuse in which she alleged that the father had physically assaulted the children.  The matter was placed in this list and a report obtained from the Department of Human Services, dated 26 June. At that time DHS reported the potential for the father to be charged with criminal offences of recklessly causing injury and assault with a weapon; it was alleged he used a cricket stump to assault F, while F attempted to defend his younger brother from his father’s wrath. 

3. To DHS workers, the children disclosed physical assaults by their father.  Forensic medical examination (it was reported by DHS) supported injuries consistent with the alleged assault with the cricket stump, and punching.  When interviewed by DHS workers the husband admitted he had slapped F with a hand to the face, but suggested that F's behaviour had provoked him.  DHS workers and the paediatrician involved were concerned that the children were at risk of physical, verbal and emotional abuse at the hands of their father.  DHS then recommended that all time between the children and the father be supervised, that the children receive counselling and that the husband undertake an anger management course and a parenting course.

4. On 28 June I made a number of orders, including an order suspending the father's time with the children.  The orders provided for the children and the husband to undertake therapeutic counselling with a counsellor nominated by the ICL.  The husband was to spend time and communicate with the children as agreed between the parties, supervised by a person agreed between the parties, with the guidance of the counsellor nominated by the ICL.  It is clear that the intention was that the father’s time with the children or other communication with them not commence until the counselling had commenced.  The counsellor was to be involved in the process of determining what time and communication would be appropriate; no other construction is reasonably open.

5. The father commenced an anger management course in July.  It is a 20 week course, so it has not yet finished.  The evidence is that Dr S from Relationships Australia was to provide the therapeutic counselling but she was not prepared to start that counselling until the father completed the anger-management course.  I am advised by the ICL that on 7 November, Dr S said she would be prepared to start the therapeutic counselling now.  The ICL has provided the parents’ details to Dr S' rooms but neither parent has yet been contacted by her.  An attempt by the ICL to contact Dr S again this morning was unsuccessful; she was advised Dr. S is not available till Tuesday.  The mother attended an induction session at Relationships Australia in late August or early September. 

6. On 31 October the father filed an application in which he sought to spend time with the children on each alternate Sunday, for two hours, supervised by Ms D. Today he has spoken about another friend, Mrs R, as a potential supervisor.  He is distressed that he has not been able to have any communication at all with his sons because the therapeutic counselling process has been delayed.  He seeks the immediate commencement of supervised contact.  It is clear that the father believes that the mother, alone or with other people, has maliciously acted to undermine his relationship with his sons, and has perhaps coached them to make false allegations, and turn them against him.  From his perspective, any further period in which he does not see his sons is damaging to his relationship with them and is not warranted. 

7. The ICL’s submission is that the orders should stay as they are.  The therapeutic counselling should commence. Once that counselling commences, there is potential for some form of contact or communication to take place, whether through the counselling process itself, through non face-to-face means (for example, phone or email) or supervised face-to-face.  The existing orders carry the potential for the father to resume a relationship with his children, while securing their safety.  That is supported by counsel for the mother.

8. The Family Law Act 1975 requires the court to balance the importance to children of a meaningful relationship with both parents with the importance of protecting them against violence and abuse.  In an interim hearing, the court cannot determine the contested claims. I cannot determine today whether, as the father would have it, he reacted on one isolated occasion in the manner he has described or whether there has been the course of conduct described by the children, which is of much longer duration and far more serious than the father recalls.

9. The experts involved have expressed concern that the children could be exposed to physical, verbal and emotional abuse if orders allow them to spend time with their father without proper constraints. Physical supervision can guard against physical and verbal abuse to a substantial extent but the concern of the ICL and other professionals relates to emotional abuse.  It is submitted that there is an unacceptable risk of harm to the boys’ emotional wellbeing if contact with their father commences without some prior therapeutic intervention and without the capacity of that counsellor to analyse and assess the children's responses. 

10. It is clear that the father is unhappy with the role the ICL has played in the case.  He has written in his affidavit of attempts to negotiate directly with the mother.  It is clear from the mother's response that she sees those attempts as a form of harassment.  Any negotiation should be with her lawyer and with the ICL

11. I propose to clarify what is meant by paragraph (4) of the orders of 28 June, 2007.  I am not satisfied the court should make the orders sought by the father; to do so would not be in their best interests and could expose them to violence and abuse.

I certify that the preceding 11 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

Date: 16 November 2007