Materanzi and Suskain (No 3)

[2011] FamCA 284

FAMILY COURT OF AUSTRALIA

MATERANZI & SUSKAIN (NO 3) [2011] FamCA 284

FAMILY LAW - CHILDREN – Interim parenting orders sought when final hearing vacated – father seeking supervised time with child – untested allegations of sexual abuse – untested evidence including expert report – child’s best interests – father to spend supervised time with the child

Family Law Act 1975 (Cth)

APPLICANT: Mr Materanzi

RESPONDENT: Ms Suskain

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 776 of 2010

DATE DELIVERED: 9 February 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Forrest J

HEARING DATE: 9 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Karras Partners

COUNSEL FOR THE RESPONDENT: Mr White

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wearne

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The orders made by Judicial Registrar Johnston on 31 May 2010 be discharged.

2. Orders 3, 4 and 5 of the Family Court made 17 November 2006 be stayed.

3. The child H born … April 2004 (“the child”) shall live with Mr Materanzi (“the Father”) as follows:

   3.1each alternate Thursday from after school to before school Friday commencing Thursday 10 February 2011;

   3.2each alternate weekend from after school Friday until before school Monday commencing Friday 18 February 2011; and

   3.3in the event that the child has not attended school on the day or afternoon that she is to go into the care of the Father pursuant to Orders 3.1 or 3.2 herein, for whatever reason, she will nevertheless be made available by the Mother to be collected by the Father at 3.10 pm at S Primary School in B.

4. The child live with Ms Suskain (“the Mother”) at times other than in Order 3 herein.

5. The child’s time with the Father in accordance with Order 3 hereof is subject to supervision by either Ms B (“the father’s partner”) or Ms C (“the paternal grandmother”), conditional upon such supervisors entering into an undertaking with the Court in a form similarly annexed to these orders (“Annexure A”) by no later than 12 noon Thursday 10 February 2011.

6. At all times that the child is living with the Father pursuant to Order 3 herein, the Father is to ensure that the child is provided with her own bed in her own bedroom and that the child sleeps in that bed in her own bedroom.

7. Changeovers in accordance with these orders shall take place at the child’s school, S Primary School in B, and, at the time the Father is to collect the child from the school, the Mother shall remain away from the school, and, at the time the Father is to return the child to that school, the Mother shall remain away from the school.

8. The Independent Children’s Lawyer forthwith provide a copy of these orders to the Principal of S Primary School in B.

9. Paragraph 25 of the orders made 17 November 2006 is discharged.

10. Each Wednesday, commencing 16 February 2011, the Mother shall cause the child to telephone the Father between the hours of 6.00 pm and 7.00 pm on the telephone number to be provided by the Father’s solicitors to the Mother’s counsel this afternoon, 9 February 2011 and such calls are to take place at the Mother’s expense.

11. The Father and the Mother are hereby restrained by injunction from:

    11.1denigrating each other or members of the other’s family; and

    11.2discussing these Court proceedings, any Court document or reports or the child’s views and wishes in relation to her future living arrangements;

    to, or in the presence of, or, within the hearing of, the child.

12. The Independent Children’s Lawyer is granted leave to issue any further subpoenas for the final hearing.

13. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Materanzi and Suskain (No3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 776 of 2010

Mr Materanzi

Applicant

And

Ms Suskain

Respondent

EXTEMPORE JUDGMENT

1. In this matter, which I adjourned earlier today for a hearing commencing at 10.00 am on 21 March 2011, which is, effectively, only just under six weeks away, the father, Mr Materanzi, makes application, effectively in its substance, supported by the Independent Children’s Lawyer for a change, on an interim basis, in the time that the child, the subject of these substantive proceedings, H, spends with him in that interim six week period up to the time of trial. 

2. I digress here to mention that earlier I said it may be that such interim orders, if any, are put in place and stay regulating the time that the child spends with her father until a decision that may be reserved by the trial judge is handed down at some time in the future.  Of course, it may be that it is not the case.  The matter really would be a matter for the trial judge to consider further during the course of that trial.  Her Honour, as I understand it, Stevenson J, who is going to be the trial judge, may determine that there is a need to change these interim arrangements, at the end of the trial, if she is reserved, as I expect her Honour might be.  So I truly am only considering the situation as between now and the trial in the week of 21 March. 

3. Now, as I mentioned earlier, there were orders made on a final basis with the consent of the parties by Steele J of this court on 17 November 2006, on day five of a contested trial, which were comprehensive in their extreme.  They were amended, again, to some extent, by consent of the parties, by order of Judicial Registrar Johnston, as he then was, made on 31 May 2010.  H had been spending weekend time with her father pursuant to the original orders, at least to the extent of full weekends generally every second weekend – that is, when I say a “full weekend,” from Friday after school through to Monday morning before school – from the beginning of 2009 through to late June 2009, around about six months, subject to some apparent complaint that not every one of those weekends was occurring in accordance with the order. 

4. The child, H, at the age of somewhere around four, going on five, had spent at least some of the period from the beginning of 2007 – 6 April 2007 –staying overnights with her father on a Friday night, and then all day on Saturday for about two years, with some interruption.  Then, from the beginning of 2009 to the middle of 2009, she was spending a whole weekend each alternate weekend with her father. 

5. Now, that time she was spending with her father was completely stopped for a year from June 2009 to June 2010, when these orders that I just referred to having been made by Judicial Registrar Johnston by consent came into effect.  From that time on – that is, from June 2010 till now – the child has generally, again with some apparent interruptions, but generally, been with the father from after school each Thursday to 7.00 pm in the evening that same day, and every Sunday from 11.00 am to 6.00 pm, such time being supervised by the father’s mother, the child’s paternal grandmother. 

6. The trial has been adjourned and the father makes principal application on an interim basis for orders to be made that the child, H, comes to live with him in accordance with his final application. I note, though, that such application is not supported by the Independent Children’s Lawyer, and is definitely opposed by the mother, Ms Suskain.  Having heard the Independent Children’s Lawyer’s position, I am informed by Mr Gould of Counsel for the father, most sensibly, I must say, that the father, although he would like the orders as he seeks them, is prepared, without admission, to accede to the proposal put forward on behalf of the Independent Children’s Lawyer, with some caveats. 

7. Effectively, the proposal that has been put before me by the Independent Children’s Lawyer provides for the child to begin spending overnight, yet supervised time with her father again from this weekend, and for that to occur so that she has, in every week, some overnight time with him, each second week it being for the entire weekend.  Of course, this is only for a matter of six weeks.  The mother, through her counsel, Mr White, opposes it and proposes that, whilst she would agree with, or accept the child spending overnight time with her father, she does not agree that it ought to be for an entire weekend during this interim period. The basis of his submission on behalf of the mother apparently being that he has instructions that the mother would be leading some evidence, when she ultimately does lead evidence in the trial, that H has apparently reported to her some concerns about the relationship between the father and his current partner, Ms B. 

8. I have not been given any further detail in respect of that, so I do not know what would be the nature of such evidence in the matter.  I have the benefit of some evidence that has come in since Judicial Registrar Johnston’s order in May of last year, namely – well, I have seen and read the evidence of the father and his partner, Ms B, and the father’s mother – evidence-in-chief that has been filed since then in readiness for this trial. 

9. Most importantly and significantly, in my finding, I have the benefit of the expert who was appointed in this case by order of the court.  It was by consent of all the parties that Dr R, who is described in her report as a child and family psychiatrist, was appointed by the Court to provide a confidential psychiatric report to the Court to assist in the determination of this matter. 

10. Now, that report is dated 25 November 2010 and details Ms R’s reported interaction with the relevant parties, being the mother and the father;  with the child, H;  with the mother’s new partner, Mr P;  with the child H’s half-sisters, J and D, who are two and one year old, who are the daughters of Mr P and the mother;  also her interaction and observation of the father’s partner, Ms B;  and the father’s mother – that is, the paternal grandmother. 

11. So Dr R, at the end of her report, ended up making some recommendations that numbered six, the first being that H move to live with her father;  the second being that H spend weekly time in her mother’s household, one overnight per week in week one and then from Friday – interestingly, from Friday to Monday in week two, the same that is now being proposed the father get;  three, H continue in the same school;  four, the father seek professional assistance to assist him to support H’s adjustment to the change in her living circumstances;  five, the mother and her husband attend couple counselling;  six, no personal contact between the parents. 

12. Now, as I said in exchange with Mr White before, Dr R does not even make any of those recommendations, particularly the first one, conditional upon some sort of finding that there is no sexual abuse.  Of course, that goes without saying, and although it is a job that the court ultimately has to do, of course, to make findings about whether or not sexual abuse has occurred and, if it cannot make findings as to whether it has or it has not, then the question of unacceptable risk if the child was to live with the father, but it seems to me inferentially that Dr R has, in her own mind, formed the opinion that no sexual abuse has occurred and that there is no such risk of it happening. 

13. She clearly was, in her opinion, satisfied that there was nothing, at least in the relationship between the father and Ms B, that was apparent to her or had been made – well, she does not say that the mother told her that there were any problems in it or that the child did, so there is nothing that she alluded to, nothing that apparently caused her concern to stop her making a recommendation that the child go to live with the father and, indeed, she said at the bottom of the third last page of  her report in the last paragraph that:

    Unless [the father] has been as violent as [the mother] has alleged he was with her, there does not appear to be good reasons for this father and daughter relationship to be so disrupted, nor contrary indications to him having the majority care of [H] if necessary.

14. And I will just remark as a matter of interest there, that the first part of that sentence that I just read out is interesting and something that strikes me as something that may need to be pursued with Dr R.  She is talking about the violence that the mother has alleged against the father but, as I understand it, all of that predated the orders of 2006 that the mother consented to.  So it would be interesting to see what Dr R thinks about that in that context.  But otherwise she says:

    There does not appear to be good reasons for the father and daughter relationship to be disrupted, nor contrary indications to him having the majority care of [H] if necessary.

15. Now, I have absolutely no evidence before me at this point that causes me to be concerned about a regime of supervision being undertaken by Ms B, the father’s partner.  Indeed, there is nothing to suggest that the regime of supervision that has been in place to this point in time where the father’s mother has been the supervisor is anything other than suitable and appropriate, and working.  The question is, whether it is, at this interim point, in H’s best interests to increase the time that she is spending with her father, albeit under supervision, to include overnight. 

16. Now, in coming to that determination, firstly, I am faced with a situation where, at the moment, there is an order in place that says the parties are to have equal shared parental responsibility for H. At this point in time, I am not asked to change that on an interim basis, although the father clearly asks in his final application that he has sole parental responsibility of the child. Section 65DAA(1) of the Family Law Act1975 (Cth) (“the Act”) provides that:

    If a parenting order provides that a child’s parents are to have equal shared parental responsibility, the court must:

    (a)consider whether the child spending time with each of the parents would be in the best interests of the child;  and

    (b)consider whether the child spending equal time with each of the parents is reasonably practicable;

    (c)if it is, consider making an order to provide for the child to spend equal time with each of the parents.

17. Now, I am not asked today by the father, nor the Independent Children’s Lawyer, to make an order for the child to spend equal time with each of the parents.   In those circumstances, I immediately determine that, and on all the evidence that I have seen in this case to date, it is not in the child’s best interests to spend equal time with each of the parents.  I do not therefore consider that I need to go on to consider whether the child spending equal time with each of the parents is reasonably practicable but, even if I was to have to do that, I would not consider that it was. 

18. Having determined that, that it is not in the best interest of H at this interim stage to spend equal time with each of the parents over the next six weeks, I then am required statutorily to go on and consider if, and this is pursuant to s 65DAA of the Act, if the child spending substantial and significant time with each of the parents is in the best interests of the child, and whether that is, indeed, reasonably practicable.

19. Subparagraph (iii) of that same section says that:

    For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both days that fall on weekends and holidays and days that do not fall on weekends or holidays, and the time the child spends with the parent allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child.

    And (c):

    The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

20. Having particular regard to the report of Dr R, although I concede it is untested, but also having regard to the rest of the evidence that is before me in this case and also the submissions made on behalf of the Independent Children’s Lawyer today and the submissions of Mr Gould and Mr White, and having regard to those matters set out in s 60CC of the Act, namely, the primary considerations set out in subparagraph (2) of that section and all of the additional matters of consideration set out in subparagraph (3), I am satisfied that it is in the best interests of H to spend substantial and significant time with her father, albeit in this interim period of some six or so weeks between now and the hearing.

21. I have particular regard, in reaching that determination, to Dr R’s opinion that the mother’s parenting capacity is seriously compromised in the most important domains of allowing the child to be herself and, importantly, for my mind in this particular decision, facilitating a positive relationship with the other parent. 

22. I have particular regard to Dr R’s opinion that the father presented as a capable and committed parent.  His positive engagement with H at this assessment was confirmed by his mother’s and his partner’s observations.  I have particular regard to her observation – that is, Dr R’s observation, that the relationship between Ms B and the father appeared mutually supportive and satisfying, albeit still at an early stage.  I have particular regard to Dr R’s as yet untested opinion that there does not appear to be any evidence H has been sexually abused by her father, and any allegations should not interfere with her relationship with him. 

23. The very fact that that opinion and the allegations that give rise to the consideration of the matter are as yet really untested in this court is the basis upon which, on an interim basis for these six weeks, the order I am going to make will only provide for additional time that is supervised as proposed. 

24. I am satisfied that it is in H’s best interests to stay overnight with her father, albeit supervised by, principally, Ms B and, secondarily, if Ms B is not able to supervise it, by the father’s mother, who has now become an experienced supervisor in this particular case without any complaint being made against her. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 9 February 2011.

Associate: 

Date:  21 April 2011