Marchioni & Marchioni
[2024] FedCFamC1F 77
•19 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Marchioni & Marchioni [2024] FedCFamC1F 77
File number: MLC 10682 of 2023 Judgment of: CAMPTON J Date of judgment: 19 February 2024 Catchwords: FAMILY LAW – PARENTING – APPLICATION FOR REVIEW – Where the father reviews an order requiring the younger of two children to remain at his current school and for him to drive the two children to and from their respective schools – Where the mother provided an email advising that she could not appear at the review hearing attaching a document from a medical practitioner that did not provide any particulars as to illness or why she could not attend and engage by Microsoft Teams – Where the father opposed the implicit application for adjournment of the review hearing – Application for adjournment refused – Where the father withdrew his relief to change the school of one child and contends to drive the children to and from school requires over four hours of travel time each day – Where the children are 12 and 14 years of age and have travelled to and from school by way of public transport previously – Order as to him driving the children to school discharged – Application for Review of the husband otherwise dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07 Division: Division 1 First Instance Number of paragraphs: 52 Date of hearing: 19 February 2024 Place: Sydney Counsel for the Applicant: Mr Tesoriero Solicitor for the Applicant: Elsum Family Law Solicitor for the Respondent: No appearance Counsel for the Independent Children’s Lawyer: Mr Higgins Solicitor for the Independent Children's Lawyer: Higgins Legal ORDERS
MLC 10682 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MARCHIONI
Applicant
AND: MS MARCHIONI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
19 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Order 16(d) made by a senior judicial registrar on 23 January 2024 be discharged.
2.The Application for Review of the husband filed 10 February 2024 otherwise be dismissed.
3.The Independent Children’s Lawyer is directed to provide a copy of these reasons to the single parenting expert, Ms B.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Marchioni & Marchioni has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
By way of an Application for Review filed 10 February 2024 (“the Review”), Mr Marchioni (“the father”) reviews parts of an order made by a Senior Judicial Registrar on 23 January 2024 regulating a discrete aspect of the parenting of two children, X born 2010 and Y born 2012.
The remaining parenting and procedural orders made by the Senior Judicial Registrar not subject to challenge on review broadly provide for the preparation of a report by a single parenting expert report, for the orders made 14 November 2023 to remain in full force and effect providing for the children to live with the father and spend alternate weekends with the mother, and for the children to both remain enrolled at the schools they attended in 2023.
The parts of the order subject to review are as follows in bold:
16. Until further order:
(a)[X] is to remain enrolled in and continue to attend [C School];
(b) [Y] is to remain enrolled in and continue to attend [D School]; and
(c)The parties are restrained from enrolling the children in schools other [than as] set out in order 16(a) and (16(b) hereof.
(d)The father or nominee will drive the children to and from their respective schools to give effect to order 16(a) and 16(b) hereof, save for when he is unavailable to do so due to work commitments as specified in Notation B of these Orders, on those dates, the children live with the mother from conclusion of school or 4pm if a non school day on the day before the first named date until the start of school or 10 am if a non school day on the day following the last named date, unless otherwise agreed in writing between the parties.
…
AND THE COURT NOTES THAT:
B.The Father has informed the court that he or his nominee will be unable to drive the children to or from school on the dates setup below at which time they will live with the mother as per order 3(d) hereof:
(a) 12, 13 and 14 February 2024 […]
(b) 17 February- 20 February 2024 […];
(c) 5 March- 7 March 2024 […];
(d) 14 March 2024 to 15 March 2024 – […];
(e) Friday 5 April to Monday 8 April 2024, […].
(Emphasis added)
Ms Marchioni (“the mother”) did not appear on the hearing of the Review. The Independent Children’s Lawyer (“the ICL”) opposed the Review.
The mother sent an email to chambers and the other parties yesterday, Sunday 18 February 2024 at 8.33pm (Exhibit 1), the evening before the Review was listed to be heard by Microsoft Teams. It recorded:
Dear [Associate],
Unfortunately I am unwell and can not attend. Please see attached medical certificate.
Yours sincerely,
[The mother]
Attached to the email was a report authored by Dr E, which stated:
TO WHOM IT MAY CONCERN
[The mother] reports she is unable to work from Monday, 19 February 2024 to Friday, 23 February 2024 inclusive due to a medical condition.
The mother implicitly sought an adjournment of the Review hearing. The email containing the report sent was sent on 18 February 2024. Somewhat usually, the report attached to the email was dated today, 19 February 2024.
The father opposed the mother’s application for an adjournment. The ICL supported the adjournment, submitting that the mother’s response to the father’s relief as sought in his Review as filed was critical to a determination on Review that best promoted the children’s interests.
The father advised that he no longer pressed for a review of Order 16(b). Hence, the orders made by the senior judicial registrar for X to continue to attend C School and for Y to continue to attend D School, would remain in place. The Review was therefore restricted to Order 16(d), being a requirement that the father drive the children to and from their respective schools, with a provision for the children to live with their mother overnight on days where he could not implement that arrangement.
The ICL, in the circumstance where the children would remain at their current schools, no longer supported any adjournment application.
The parties and the children are scheduled to attend upon Ms B, the single parenting expert, on 8 March 2024. It is anticipated that her report will be released approximately four weeks thereafter. The proceedings are listed before a judicial registrar for trial management on 15 April 2024.
The mother’s application for an adjournment was dismissed. The report attached to her email did not identify the mother’s presenting symptomatology or any diagnosis. It did not articulate any incapacity or inability encountered by the mother to engage in a Microsoft Teams hearing.
For the reasons that follow, Order 16(d) made 23 January 2024 is discharged. The father’s Application for Review filed 10 February 2024 is otherwise dismissed.
THE LAW
Rule 14.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) sets out the power of the Court on review from an order of a senior judicial registrar is to be exercised by way of an original hearing.
BACKGROUND
By way of context, litigation as to the parenting of these children commenced in 2018. Final orders have been made on two occasions, in addition to the entry of a parenting plan. The children have been subject to almost continuing litigation and conflict between their parents absent meaningful respite for close to six years. The dispute has extended to state courts, to the police and with child welfare authorities. The narrow scope of the Review is indicative in part to the unabated high conflict between the parties and an absence of capacity for them to prioritise the needs of their children.
The mother was born in 1974 and is 49 years old. The husband was born in 1979 and is 45 years old. They commenced cohabitation in early 2006, married in 2007, separated on 1 July 2017, and were divorced in 2018.
On 14 November 2018, final consent orders were made in what was then the Federal Circuit Court of Australia, as to the adjustment of property, for the parents to have equal shared parental responsibility for the children, for the children to live in a “shared care arrangement” on an equal basis, and for neither party to change the children’s school enrolments without the written consent of the other parent.
At the beginning of 2020, the father moved from the area in which the children attended school to Suburb F. He continued to drop and pick up the children from their respective schools.
In or around early 2021, the father commenced cohabitation with his current partner, Ms G. They now have a child together, H, born 2022, being one year old.
In February 2021, the father approached the mother requesting to change the children’s school to J School, closer to his Suburb F residence, and to change the children’s living arrangements to a week-about basis. In or around April 2021 the mother agreed to trial around a week-about arrangement.
On 4 June 2021, the father filed an Initiating Application in what was then the Federal Circuit Court of Australia seeking for the children to live with him and spend time with the mother as determined by the Court, and for the changeover to occur at his place of residence.
Final consent orders were made on 21 June 2021. They provided for the children to live with each parent on week-about basis and for the mother to attend her psychiatrist no less than once per month. The 14 November 2018 order for neither party to change the children’s school enrolments without the written consent of the other parent was to continue.
Within six months from the making of the consent orders, in late 2021, the father relocated from Suburb F to Suburb K, where he currently resides.
In April 2022, the parties attended mediation as to which high school X would attend.
A parenting plan was entered in August 2022 providing for the children to live with the mother and spend time with the father every alternate weekend during the school terms, for X to remain enrolled at C School and for Y to remain enrolled at D School.
Throughout 2023 the children attended each of these schools. The father said that the children travelled from his home on Mondays in alternate weeks to their respective schools by public transport.
In late 2023 the father alleged that the children had been exposed by the mother to an unacceptable risk of sexual, physical, and emotional harm. He retained the children in his care.
Two days later the mother was interviewed at a police station by the Sexual Offences and Child Abuse Team (“SOCIT”). Child Protection authorities were also present at that interview.
An intervention order was ordered two days later restricting the mother’s behaviour for the protection of the father and the children. That intervention order was provided to the children’s schools.
By way of an Initiating Application filed 15 September 2023, the mother re-commenced parenting proceedings in the Federal Circuit and Family Court of Australia (Division 2) seeking sole parental responsibility for the children, for them to live with her and spend time with the father every second weekend, for the changeover to occur at her place of residence, and for the parties to attend family therapy.
In late 2023 the parties attended the Magistrates Court regarding the intervention orders. The father’s application for an intervention order was dismissed. Later in 2023 the mother was awarded costs of $16,750. The father has appealed this determination.
On 5 October 2023, the matter was transferred to the Federal Circuit and Family Court of Australia (Division 1), designated to the Magellan list and the preparation of a Magellan report was ordered.
The Magellan report dated 13 November 2023 records:
Conclusion
Consultations with [L Family Services] suggests that [the father] is utilising several high-risk factors evidence in Family Violence.
There is insufficient evidence for either the police or child protection to substantiate allegations of sexual, physical, or emotional abuse against [the mother].
Although child protection has not substantiated on emotional harm against [the father], his behaviours are concerning whether they are deliberately or malicious or out of genuine concern they have impacted the mother/ child relationship between [the mother] and her children.
…
Recommendations
It is respectfully recommended that [the father], [Ms G], and [the mother] participate in a mediation process to ensure the children are not used to provide information to either party and further impact on the children’s emotional wellbeing.
That the children are provided the appropriate therapeutic support to address the challenges that they have experienced due to their parents’ acrimonious relationship so they can maintain positive relationships with their parents. [M Family Services] have been consulted to provide this service but they are unable to do so whilst the children are residing with [the father] and out of region. [M Family Services] do not believe it is appropriate for them to become involved whilst this matter is still being determined in court.
[The mother] has not had any contact with [X] or [Y] since [late] 2023 it is Child Protection’s recommendation that contact should be facilitated between [the mother] and her children without due delay to prevent any further strain on the mother- child relationship. Child [sic] protection proposes that the initial contact between them support by a third party, offering the necessary support both for the children and [the mother] to re-establish their connection.
(As per the original)
In late 2023 an Intervention Order was made against Ms G for the protection of the mother.
On 14 November 2023, consent orders were made for the children to live with the father and spend time with mother, with time to increase to overnight time from 9 December 2023.
THE REVIEW
The landscape surrounding the Application for Review is cast by the parenting orders made by the Senior Judicial Registrar on 23 January 2024 that are not the subject of challenge.
If I understand his case correctly, the father says that neither party sought the making of Order 16(d) at the hearing before the Senior Judicial Registrar. He conceded there were extensive submissions made as to the subject matter of the travel of the children to and from school while in his care.
The father submitted that the school trip by car from his residence was two hours each way. He said that it was not practical or possible for the children to stay with the mother if he was not able to pick up the children from school, identifying an incident on 2 February 2024 in which the mother was required to collect the children from their respective schools for her time with them over the weekend. He contended that X finished school at 2.00pm, that the mother was not at the school at 2.00pm and that she did not contact X until 2.30pm. By that time X was on public transport on his way to the father’s residence. On the same day, the mother did also not pick up Y from his school, and instead Y’s cousin, attended at the mother’s instigation at Y’s school to transport him to the mother’s home. The father contends that Y did not want travel with the cousin to the mother’s residence, and instead caught public transport to the father’s residence.
For his “live with” relief, the father said his “working hours are flexible” and “I own my own company”. He now says that he has “work commitments” that prohibit him from driving the children to and from school, making it impossible for him to commit four-hour trip. Other than saying that he has “two full-time jobs” he did not provide any evidence in his two affidavits as particularizing those commitments. He said that the children are 12 and 14 years of age and have demonstrated capacity to travel each week to and from school by public transport as they did between September and December 2023 without incident.
The father submitted that the nature of the relationship between the mother and the children is “at best strained at this point” such that they currently are not spending any time with the mother pursuant to Court orders.
The ICL submits that an objective reading of the Magellan Report suggests a campaign of communications and applications by the father to denigrate the mother and allege her inappropriate behaviour. He submits that the Magellan Report may promote a finding that the children are enmeshed with their father, citing that their disclosures mirror the father’s allegations and language.
The ICL further identified the implicit assistance that the father has provided to the children in sabotaging their time with the mother. This includes a process whereby the children travelled by Uber at 1.06am from the mother’s home on 19 January 2024.
The ICL submitted that the subpoena material indicated that no issues were identified for either child at school, that a change of schools on an interim basis would be a disruption of their connection to their established network of friends, and that each of the children had undertaken the current travel arrangements from their father’s home to and from school for some period.
It was the ICL’s contention that the father has not approached this Review in good faith, the order made at the last hearing now under review being designed to “cut down the travelling time” of the children and to facilitate both he and the mother spending more time with the children than would be the case if they were catching public transport to and from school.
The ICL focused on the role of the father in promoting the best interests of the children by encouraging them to stay with the mother during time spent and ensuring that any processes of facilitation of early return to his care are reduced or avoided until that time is due pursuant to the current orders has expired. The existing order under review provided a mechanism for the children to spend greater time with the mother when the father was not available to care for them. The ICL submitted that concern exists as to the children’s alignment with their father, and that his parenting style could well be harmful. The ICL submitted that the travelling time from the father’s home by car to the children’s school was in the range of 40 minutes.
It was the ICL’s contention that the mother was in fact at X’s school on 2 February 2024 when the father says she failed to turn up to collect him. If I understand the submission correctly, it may have been that the father arranged for the child to come home from school earlier that day so as to ensure that he would not spend time with his mother.
CONSIDERATION
Significant disquiet is expressed on a consideration of all the evidence as to the father engaging in a process of self-fulfilling conduct contrary to the best interests of the children, designed to damage or sever their relationship with their mother. The integrity of what he contends are practical difficulties in driving the children to and from their existing schools will be a matter to be ventilated at a final trial.
The practical difficulties and mechanics broadly contended by the father cannot be ignored for the purposes of this determination. The objectives identified by the ICL in maintaining Order 16(d) have merit. That said, they need to be carefully balanced against the likelihood of further conflict and dispute between the parties, including but not limited to confusion and problematic circumstances as to which of the parents is to be responsible for the collection of the children on particular days. The dysfunction in the relationship between the parents cannot be solved by way of an interim hearing process. The potential for further chaos cannot be allowed to fester by way of an order that has integers of uncertainty.
It is in the children’s best interest to have firm particularised arrangements going forward, identifying with precision what is to occur after school on specified days, so they and the parents know when they will be in their respective care. By way of the existing regime, each parent knows the mother will collect the children on alternate Fridays from school and will return them to school on the following Monday. There is no reason for the father to be in or around the school on those days, and it is not necessary for the father to arrange for the children to return to his house, by public transport or any other way, either directly or indirectly at those times.
These matters may inevitably lead to binary options as to the future parenting of the children after a final hearing and a consequential blunt determination.
For all the above reasons, Order 16(d) is discharged. The Application for Review is otherwise dismissed.
The matter will remain listed before a judicial registrar on 15 April 2024. A direction will be made for the ICL to provide a copy of these reasons to Ms B.
I certify that the preceding fifty-two (52) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 19 February 2024
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