Luchetti & Miller

Case [2023] FedCFamC1F 38

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Luchetti & Miller [2023] FedCFamC1F 38

File number: MLC 2857 of 2020
Judgment of: CARTER J
Date of judgment: 8 February 2023
Catchwords: FAMILY LAW – CONTRAVENTION – previous final orders made – children’s agreed extracurricular activities – where parents dispute the children’s agreed extracurricular activities – whether the mother consented to the children’s participation in extracurricular activities – where the children failed to attend their extracurricular activities when in the mother’s care – where the mother asserts she had a reasonable excuse – mother found to have contravened orders – where the mother failed to establish a reasonable excuse in relation to two counts – where the court is satisfied on the balance of probabilities that two contraventions are established – variation of primary order – imposition of a penalty or action – adjourned for further hearing.    
Legislation: Family Law Act 1975 (Cth) Division 13A, ss 70NAC, 70NAE, 70NBA
Cases cited: Hale v Hale [2011] FMCAfam 1107
Division: Division 1 First Instance
Number of paragraphs: 116
Date of last submissions: 29 November 2022
Date of hearing: 25 and 29 November 2022
Place: Melbourne
Counsel for the Applicant: Mr George Glezakos
Solicitor for the Applicant: Doyle’s Family Law & Mediation
Counsel for the Respondent: Ms Jeanette Swan
Solicitor for the Respondent: Partners in Family Law Pty Ltd

ORDERS

MLC 2857 of 2020

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

MR MILLER

Applicant
AND:

MS LUCHETTI

Respondent

order made by:

CARTER J

DATE OF ORDER:

8 february 2023  

THE COURT DECLARES THAT:

1.The respondent mother has without reasonable excuse contravened Order 8 of the Orders made by the Federal Circuit and Family Court of Australia on 21 March 2022 as follows:

(a)on 15 May 2022; and

(b)on 2 June 2022.

THE COURT ORDERS THAT:

2.Counts 1, 2, 3 and 6 contained in the Contravention Application filed on 8 July 2022 (“Contravention Application”) are withdrawn.

3.Counts 4, 5, 8, 9, 10, 11 and 13 contained in the Contravention Application be dismissed.

4.Order 8 of the orders made 21 March 2022 be discharged.

5.In relation to the children’s extracurricular activities:

(a)the parents use their best endeavours to ensure that each of the children attend any agreed extracurricular activities.

(b)an agreed extracurricular activity is an activity in relation to which the parents have both provided their written consent to the other parent prior to the children’s enrolment for each new term or season of that activity.

(c)in the event that one parent enrols the children or either of them in an extracurricular activity without first obtaining the other parent’s written consent, the other parent is under no obligation to take the child/ren to that activity.

(d)save in relation to finals, and special presentation, which both parents are at liberty to attend, neither parent may attend either child’s extracurricular activities when the children are scheduled to otherwise be in the care of the other parent, without the prior written consent of the other…

Continue reading Luchetti & Miller

Sign in free to access the full text

Details
AGLC
Luchetti & Miller [2023] FedCFamC1F 38
Case
[2023] FedCFamC1F 38
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Luchetti & Miller involved a contentious parenting dispute between the parties, marked by significant acrimony and an array of conflicting decisions about their children's upbringing. The case covered issues such as medical treatment, extracurricular activities, and the children's general welfare. The court had to navigate through the parents' entrenched positions, which seemed to prioritise their conflict over their children's best interests. The children, in particular, appeared to be deeply affected by their parents' ongoing disputes.

The primary legal issues the court addressed were whether the mother had contravened specific parenting orders concerning the children's attendance at sports events and the appropriateness of certain extracurricular activities. The court also considered the implications of the parents' conduct on the children's welfare and whether any additional measures, such as a Specific Issues Report, were necessary to understand the children's perspectives. The court had to balance the need for the children's voices to be heard against the potential distress such inquiries might cause, given the already high levels of conflict in the family.

The court found that the mother had indeed contravened the orders regarding the children's attendance at sports events without reasonable excuse. However, the court also noted that the father's inclusion of these relatively minor breaches in a broader contravention application seemed disproportionate. The court emphasised the importance of the children's emotional well-being and highlighted the negative impact of the parents' conflict on them. Both parents were criticised for involving the children in their disputes, which placed undue pressure on the children and politicised their activities and preferences. The court declined to impose additional restraints on the parents' decisions regarding extracurricular activities but urged the parents to consider the children's best interests more carefully in their decisions.

In conclusion, the court ordered that the mother's contraventions be noted but did not impose penalties, considering the disproportionate nature of the father's application. The court stressed the need for the parents to reduce the conflict and its impact on the children, encouraging them to support the children's choices and reduce the politicisation of their activities. The court refrained from making further Specific Issues Reports, considering the significant distress it might cause the children.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I note at the outset of the hearing before me, there was some suggestion that it might be appropriate for a Specific Issues Report to be prepared at least in relation to X and his attitude towards playing with the B Sports Club. Whilst at first blush that option seemed attractive, I declined to make an order to that effect. After reading Mr D’s reports it became abundantly apparent that X struggles significantly with being caught up in the conflict between his parents, and feels distressed and deeply uncomfortable about having to express views that one or other parent will be hurt by or disappointed in. In those circumstances, I formed the view that subjecting X to yet another interview with a professional, and requiring him to effectively declare a ‘side’ with one parent would not be in his best interests.BACKGROUND The parties have been engaged in a highly acrimonious parenting dispute, no doubt at enormous financial and emotional cost to them both. The circumstances of the parties’ separation was fraught – and both parties at times have acted immaturely, and failed to be child focussed. Each blames the other for the lack of parental co-operation, and neither parent seems willing or able to reflect on their behaviours or contribution to the devastation they have caused to their boys’ childhoods. The parties have frequently clashed over multiple issues regarding their children, including what dental work is required, where the children should attend dental appointments, what school sports they should play, the mechanism by which the children’s school sports should be chosen, the wearing/not wearing of orthotics for X, the obtaining of passports, other issues regarding the children’s medical and psychological treatment, as well as an ongoing dispute regarding the children’s participation in extracurricular activities both in sport and music. It is also apparent that the boys are both aware of these contravention proceedings, which is unacceptable. The stress and strain of the ongoing conflict was, and remains, quite clearly deeply troubling and distressing for the boys. That much is obvious from the two Family Reports prepared by Mr D. In his report dated 27 May 2020, Mr D implored the parties to step aside from their conflict, and reflect upon the significantly negative impact their ongoing dispute was having on the children, and the likely long-term consequences that this would have on the boys. In that report, Mr D wrote:[X] told me that he thought the prognosis for his parents relationship was poor, that he didn't think that they would ever be able to sort things out, that they remained extremely angry with each other and it was his opinion, they would never get over it. More importantly, he told me he didn't believe his parents understood how he felt, the impact of their actions upon him, that they were so consumed by their negative feelings for each other, that they ignored how he felt, that their negative feelings had an intrusive, negative, emotional transfusing effect upon him, and that he had lost trust in their ability to keep the family safe and protected. [X] told me that even though his parents reassure him that things will be different one day, that he doesn't trust that they will, that his parents are unable to elevate above their feelings and negativity towards each other for his sake and that of [Y], and he commented on how his parents behaviour and the history of the conflict so negatively affected [Y]. [X] was particularly burdened by the intensity of his mother's negativity, seemed unable to defend against the intensity of her ill feeling towards his father, feeling the need to defend his father against her criticism and being uncertain about how to respond to statements such as that she would never be with him again, that they will never like each other and that she doesn't want to be anywhere near him.According to [X], his parents speak badly about each other, but more importantly, that he knows that they feel badly about each other. He feels defenceless against their criticism and attack; he told me that he does not like hearing about what has happened, that he is not interested in their story, that he does not want to live in the past and that he has heard a great deal about what has happened, and especially so from his mother, because she is the more stressed, annoyed and angry. He explained that it makes him feel very sad and feel very burdened when his mother goes over it again and again, that he worries about what this means for the future, amidst a sense of foreboding that something will inevitably go wrong. [X’s] fear for the future is that his parents will not be able to stop the conflict, that their negative feelings for each other will continue, and that inevitably, that will infuse him and his brother, and that he will not be able to have a relationship with both parents.…When asked what he thought was important for the Judge to know about him, he told me that he was worried that his parents were going to be in trouble with the judge but, he also wanted everything that they were doing to change, that they need to calm down, that they need to move on, and that they need to stop being so annoyed, aggressive and angry with each other. [X] pleaded for his parents to make peace, to understand how upset he and his brother were, and understand how their actions were affecting him. He complained that rather than solve their problems, they were just getting more angry all the time, that he felt stressed all the time, that he worried about their fighting, and that their behaviour had changed his perspective of them; he told me that he no longer felt that they were really good people and that that saddened him.

Evidence

Evidence Before The Court

In relation to the two counts involving Y, I am satisfied that as of around 10 April 2022, the mother had provided her consent to him being enrolled with the B Sports Club. That meant on 15 May and 2 June 2022, the mother was obliged to take Y to his commitments, or provide the father with the option to take him. It is agreed Y did not attend on either day, and the mother did not advise the father she would not be taking him. For the reasons that follow, I do not accept the mother had a reasonable excuse on either of those occasions. However, whilst I have formed a view that the mother’s explanations do not amount to a reasonable excuse, I am concerned that the father’s response to Y’s non-attendance on those days in by including them in the Contravention Application was disproportionate and unnecessary. THE EVIDENCE The father relied on his Contravention Application filed 8 July 2022, and his affidavit filed that same day. The mother relied on her affidavit filed 10 November 2022, as well as on an affidavit filed by Ms C (“Ms C”) on 11 October 2022. I have also had regard to Mr D’s (“Mr D”) two reports prepared in this matter dated 27 May 2020 and 24 January 2022, both filed under cover of an affidavit on 16 November 2022. Both parents attended at court, in person. They were subject to cross examination. Both parents clearly regard themselves as ‘in the right’, and the other parent as deficient. They were both rigid and inflexible in their views of the other parent, and in relation to what the children want and need. They both struggled to consider points of view other than their own. Ms C and Mr D were not required for cross examination. In relation to Ms C’s reports, it is unclear when she treated the children or when she last saw them. She was engaged post separation, unilaterally by the mother. The father was not notified of her involvement for a number of months afterwards. The mother acknowledged she did not inform the father about Ms C as she did not believe he would agree to the children’s attendance upon her. The father only attended a few appointments with Ms C. It does not appear Ms C has seen the boys for some considerable period. Her reports are of limited value, as a result of the father’s substantial non-participation in the children’s attendance upon her. Accordingly, much of the information Ms C has received is information provided by the mother. Additionally, Ms C does appear to me to make observations and draw conclusions that fall outside the ambit of what she can meaningfully comment on. I note at the outset of the hearing before me, there was some suggestion that it might be appropriate for a Specific Issues Report to be prepared at least in relation to X and his attitude towards playing with the B Sports Club. Whilst at first blush that option seemed attractive, I declined to make an order to that effect. After reading Mr D’s reports it became abundantly apparent that X struggles significantly with being caught up in the conflict between his parents, and feels distressed and deeply uncomfortable about having to express views that one or other parent will be hurt by or disappointed in. In those circumstances, I formed the view that subjecting X to yet another interview with a professional, and requiring him to effectively declare a ‘side’ with one parent would not be in his best interests.BACKGROUND

Decision

Reasons for decision

I note the mother sought restraints on the father enrolling X in B Sports Club, and on each party being limited to one extracurricular activity outside their school commitments. I am not prepared to make those restraints. Each parent can determine an appropriate level of extracurricular activity in his or her household. CONCLUSION Having found the mother contravened the orders on 15 May 2022 and 2 June 2022, I will now have to hear from the parties as to what consequences – if any – should flow from those breaches. It may be that the imposition of any penalty or action as contemplated in the Act is not appropriate. Whilst the contraventions are proved without reasonable excuse, the inclusion of the two relatively insignificant breaches in a contravention application seems to me to be somewhat unnecessary and disproportionate. It is plain that X in particular finds it extremely difficult to express his feelings and beliefs. It seems to be overwhelmingly likely that X tells each of his parents what he believes will make them happy, leaving him feeling unable to express his true desires. This reflects extremely poorly on the parents. It is tragic that X’s views on playing community sports have become so politicised. The father was unable to consider the possibility that X may not want to play with the B Sports Club. He insisted that X genuinely wants to play and train with the B Sports Club, as the father has spoken with him about it on many occasions. He also said he spoke with the children at length about whether they wanted psychological support, but the boys told him they did not want to attend a counsellor. That is in the context of the mother wanting the children to continue to attend upon Ms C and the father being opposed to that. The father did not seem to have any insight into how those conversations embroil the children into the parental conflict, and subject them to further pressure and stress. Of course, it might be X’s genuine view that he wants to play community sports. However, it is troubling that the father could not even contemplate any other explanation for what X tells him, or see the implications of such discussions from X’s perspective. Whilst the mother was also insistent X did not want to play with the B Sports Club, she was at least able to consider that he may be telling her what she wants to hear. The mother should ensure she makes it abundantly clear to X that she will support his decisions and choices, including if he wishes to play sports, and give him clear permission to do so. Like the father, the mother has also embroiled the boys in the parental dispute. For instance, in her letter to the father dated 18 January 2020, she referred to having a “meeting with the children to explain the circumstances of their health care being in [the father’s] control”. She said without a copy of the Medibank private health care card that the father had not provided her, she was not comfortable taking the children to sports, in case they were injured and she did not have access to private health insurance. The subtext of that conversation appears to me to be to blame the father for the children missing out on sports activities. The mother maintained this was an appropriate discussion to have with the children, and would not concede she was exposing the children to the parties’ disagreements.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.