MATERANZI & SUSKAIN

[2012] FamCA 75

FAMILY COURT OF AUSTRALIA

MATERANZI & SUSKAIN [2012] FamCA 75

FAMILY LAW - CHILDREN - With whom a child spends time - Orders - Variation - Where mother fails to deliver child to school on time or at all, and picks up child from school early when the child is in her care

APPLICANT: Mr Materanzi

RESPONDENT: Ms Suskain

FILE NUMBER: SYC 776 of 2010

DATE DELIVERED: 29 February 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 28 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Cutelli

SOLICITOR FOR THE APPLICANT: Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That, pending further order and until 4.00 pm on 20 March 2012, the final parenting order made on 14 April 2011 in relation to the child H born … April 2004 (“the child”) be varied as follows:

   (a)       That Orders 4 and 5 be discharged.

   (b)That the child spend time with the mother during school term time as follows:

   (i)Each alternate weekend from the conclusion of school or 3.00 pm on Friday until 7.00 pm on Sunday;

   (ii)From the conclusion of school on Thursday or 3.00 pm to 7.00 pm that evening in each other week;

   (iii)At other times as agreed between the parents in writing.

2. That the mother is hereby restrained by injunction from approaching, attending and/or removing the child from CC School or any other school at which the child attends from time to time, without the father’s prior written consent and with the exception of those occasions when the child is to spend time with the mother in accordance with order 1(a) above.

3. That the matter is otherwise adjourned to 20 March 2012 in the Principle Registrar’s Duty List at 10 am.

4. That pursuant to Section 68L(2) an independent children’s lawyer be appointed on behalf of the child H born … April 2004 AND IT IS REQUESTED that the Legal Commission of New South Wales arrange such separate representation AND IT IS REQUESTED that Mr O’Dowd be re-appointed.

5. That forthwith upon appointment by the said Legal Commission of New South Wales or otherwise the independent children’s lawyer file a Notice of Address for Service.

6. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

7. That upon their appointment, and after filing of an Address for Service, the independent children’s lawyer may inspect and, if permitted, copy all documents previously produced to the court in the proceedings and released to the parties.

8. That pursuant to Sections 65DA(2) and 62B 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 those particulars are included in these orders.

IT IS DIRECTED

1. That the mother file and serve any affidavit material upon which she seeks to rely together with a response by 13 March 2012.

2. That a copy of these orders be served upon the Principal of CC School.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Materanzi & Suskain has been approved by the Chief Justice 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

REASONS FOR JUDGMENT

1. This is an application by Mr Materanzi (“the father”) seeking to vary the time the child H born in April 2004 spends with the mother Ms Suskain (“the mother”). 

2. Parenting proceedings were heard before the Honourable Justice Stevenson on 21, 22, 23, 24 and 25 March 2011 and orders were made by Her Honour on 14 April 2011 relating to the care of H.  Relevantly for the purpose of these proceedings the orders provide as follows (using the numbering in the orders):

   3.That [H] live with the father.

   4.That [H] spend time with the mother during school term time as follows:

   a)each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, and

   b)from the conclusion of school on Thursday to the commencement of school on Friday in each other week, and

   c)at other times as agreed between the parents in writing.

   5.That in the event [H] is late for school on three occasions in any one school term period while in the mother’s care, [H’s] time with the mother in accordance with order 4.1 is to end at 7:00 pm on Sunday and [H’s] time with the mother in accordance with order 4.2 is to end at 7:00 pm on Thursday.

   12.That with the exception of those occasions when [H] is taken to and from school at changeover, the mother and the father will make [H] available for changeover at [Changeover Venue 1].

3. The application before the court is an interim application filed by the father on 17 February 2012 seeking to reduce the over night time that H spends with the mother when she would otherwise be either collected from school or returned to school and to restrain the mother from attending at H’s school or removing H from the school otherwise than in accordance with the orders for time spent with H.

4. At the commencement of the proceedings I was advised that the mother suffers from a hearing impairment and arrangements were put in place for the mother to have the assistance of CART (an instantaneous transcription service) and I also allowed her a Mackenzie’s Friend to sit with her and advise her.

5. The mother sought an adjournment of the proceedings on the basis that she had not had an opportunity to seek legal advice or to consider her position.

6. Admitted into evidence before me was an Affidavit of Service of Mr SS. He deposes to the fact that he approached the mother in her motor vehicle on 20 February 2012 and proffered the documents to her.  She would not accept them.  He then reached through the car window and placed the documents on the rear seat of the car.  The process server deposes that the mother then drove the car forward violently causing him an injury to his arm.

7. The mother’s evidence is that the documents were placed in the car by the process server and one of her children threw the documents out of the car. She did not seek to retrieve the documents.

8. She received a further notification by email on 20 February 2012 from the solicitors acting for the father.

9. The solicitors for the father were then contacted by the Disability Assistance Organisation on behalf of the mother and a letter was sent on 23 February 2012 to the Disability Assistance Organisation confirming that the matter would be proceeding today.

10. However, I ruled that the issue which was urgent, that is the issue of the mother’s interference with H’s attendance at school would be dealt with today on an interim basis and that the matter would be stood over to the first available duty list.  In the event, the matter has been stood over before Principle Registrar Filippello in the duty list at 10 am on 20 March 2012 and therefore the orders that I will make today will remain in force only until 4 pm on that day and will affect the period between today and 20 March 2012.

11. The evidence in the father’s case is untested, however, it is corroborated by documents produced by both H’s present school, CC School and by her previous school, S Primary School and I will deal with the documents produced later in these reasons.

12. The father gives evidence that in the school year which commenced on 30 January 2012 H has attended school on only one Friday after she has spent Thursday night with her mother.

13. On each of the occasions when H has spent a weekend with the mother she has not been brought to school on Monday.

14. On Tuesday 31 January 2012 the father attended a meeting at CC School and was told by the Principal that the mother had attended at the school both on Monday and on Tuesday.  The mother had also attended at the school on Friday before school started.  The Principal told the father that the mother had become aggressive towards staff members.

15. On Monday 30 January 2012 H commenced year 3 at CC School.  On Friday 3 February 2012 the father delivered H to school and received a telephone call from the Principal later that day.  The Principal told the father that the mother had attended at school at about 10.00 am and removed H from the school grounds.  The mother also told the Principal that she would not be bringing H to school on Monday.  At 9.30 am on Monday 6 February 2012 the father received a telephone call from Ms FT the Principal of S Primary School, the school H previously attended.  Ms FT told the father that the mother had attended at S Primary School with H, dressed in her S School uniform, and insisted that H be enrolled at the school that day.  H was not taken to school at CC School by the mother on that day.  The father collected H from S Primary School and returned her to CC School later that day. 

16. During the time that H attended at S Primary School the mother attended the school on an almost daily basis.

17. The Independent Children’s Lawyer wrote to the mother on 6 June 2011 after he was telephoned by the school in relation to recent attendances by the mother at the school.  There then followed a series of email correspondence between the mother and the father which is annexed to the father’s affidavit.

18. On a number of occasions the father has written to the mother asking her to desist from attending at the school on times other than those when she is to collect or return H and on a number of occasions the father has asked the mother to ensure that H is brought to school on school days and not collected early.  The mother’s attitude towards those requests, which is set out in an email from her which appears at page 116 of the annexures to the father’s affidavit, is in terms that she will continue to attend at the school whenever she wishes.  On 2 January 2012 the father sent an email to the mother giving notice that he intended to ask the court to amend the existing orders for H to spend time with the mother so that H could be taken to school in the morning by her father.  That notice does not appear to have affected the mother’s behaviour and I am satisfied on the material before me that she has continued to attend at CC School at any time she chooses and that she has continued to deliver H late or indeed not to deliver H at all to school.  I am also satisfied from the records produced by CC School that the mother has on a number of occasions in the short period that H has attended the school collected H early from school.

19. Documents were produced on subpoena from S Primary School and from CC School and tendered in evidence before me.

20. The documents produced by S Primary School indicate that H, in the period between 31 January 2011 and 2 December 2012 was absent on 15 days, late for school on 10 days and left early on 12 days.  Further documents produced by S Primary School record meetings with the mother where the school told the mother that it was inappropriate for her to attend at the school every day.

21. A file note produced from S Primary School indicates that on 6 June 2011 the mother came to the school at 10.30 am with H’s lunch and it was explained to her that H was in class.  The file note indicates that H was late for school on 3 June 2011 and that on 6 June 2011 the mother again arrived at the school at 11.35 am wishing to see H and give her the lunch.  The file note states that the mother refused to leave and that the school threatened to call the police.

22. A file note produced by S Primary School is a report of a meeting with the father and the mother and the school on 12 October 2011. On that day the mother was in the school play ground at 8.30 am waiting to see H in order to check her lunchbox and replace it with lunch that the mother had made.  When H arrived at school the mother replaced H’s lunchbox and H went to class at approximately 9.15 am.  The parents were then interviewed by the then acting Principal and it was explained to the mother that she should not come to the school tomorrow morning and she agreed to this.  She agreed that she would go to the school on Friday afternoon to pick up H and again on Monday morning when she brought her to school.

23. A letter produced from the file of S Primary School to the mother dated 27 November 2011 from the principal sets out the school’s concern that on the mother’s contact days H is collected before the end of the school day and that during the current term she had missed nearly 11 hours of schooling.  The letter stresses that the mother needs to collect H at 3.10 pm and that this is a legal requirement.

24. A document entitled “Student Period Absent Detail” from S Primary School was also tendered and that document shows the numerous occasions upon which the mother has collected H early or delivered her late to school.

25. A file note dated 6 February 2012 produced by S Primary School indicates that on 6 February 2012 the mother brought H to S Primary School and indicated that she would be attending school there.  In order to avoid a confrontation in the playground H was allowed into class.  The school indicated to the mother that H could not be enrolled and the mother indicated that she would pay the school fees at S Primary School.  The school then contacted H’s father and he collected her.

26. Documents produced by the CC School confirm that the mother attended at the school on the staff development day (the day before the pupils attended school) being 29 January 2012 asking the Principal not to enrol H.  She refused to leave the school and shouted at the secretary for approximately 30 minutes demanding to see the Principal.  She refused to accept the Principal’s advice that the court orders allowed H to be enrolled at the school and shouted at the secretaries again for several minutes before leaving.  The mother was at the school for approximately 75 minutes on that occasion.

27. On 3 February 2012 the records of the school disclose that the mother picked H up early at 9.30 am and did not return her to school.

28. On 6 February 2012 the mother did not return H to school (that was the day upon which the mother took H to S Primary School.)

29. On 7 February 2012, the school records disclose that the mother came into the Principals office with an Ipad using the camera function and told the principal that her lawyer had said she should record their conversation.  The note says that the mother then engaged in shouting at the Principal demanding that she should come and go to the school whenever she wanted and the Principal again stated the school policy but was continually shouted at by the mother and she talked over the top of him.  The note shows that the mother told the Principal that she would come to the school whenever she wanted to.

30. The school records further disclose that on 7 February 2012 the mother came to the school office. She shouted at the secretaries and the Principal.  On 9 February 2012 the mother was 40 minutes late picking H up after school.  On 10 February 2012 H was absent from school.  On 17 February 2012 the mother was late picking H up at 3.45 pm and the school records note that H was visibly upset.  On 20 February 2012 H was absent from school.  On 21 February 2012 the mother entered the classroom without permission after having expressly being told on the previous two days that this was not permitted.  Classes had already commenced.  The mother wanted to take away H’s lunch and replace it with one of her own making.  It is noted that this is the fifth occasion that the mother had taken H’s lunchbox.  The file notes that the mother has come to the school on at least nine occasions to take H’s lunch from her bag and replace it with her own.  The file further notes that the mother had been told on several occasions that H becomes upset on the playground with two lunches and feels she has to eat it all otherwise the mother will be angry.  The file further notes that the mother has come to visit H during the day on 8 occasions.  The file notes that the mother had been informed by the secretaries, the Assistant Principal and the Principal that this is against school policy and the mother responds by shouting over whomever she is speaking to and says she can see her daughter whenever she wants to.  The Principal met with the mother and her new partner on 15 February 2012.  The mother was informed again that she was not able to come and see H and swap lunches during a school day.  She continually shouted over the top of Principal and said she could do anything she wanted and that S Primary School had let her do this.  The file note indicates that the mother’s new partner attempted to tell her that she should comply but the mother continued shouting.  The mother eventually said that she would come up to the school before school commenced and see H before school instead of during school time and the Principal reinforced that going to the classroom was not permissible.  On 21 February 2012 the mother came to the school, took H to the toilet, put shoes on H and returned to the playground.  She did not return the shoes she had taken from H.

31. The mother made submissions before me.  I also received into evidence over objection a hand written document that the mother had prepared after she had heard the arguments advanced by the father, and a document prepared by her Mackenzie Friend.  The effect of the mother’s submission was that it was very difficult for her to get H to school on time because she had two other small children to attend to, she had problems with the traffic and a problem of having lost her drivers licence due to non payment of fines.  She also said that she kept H home on Mondays and picked her up early on other days because she wanted to spend more time with H.

32. I am conscious of the difficulties which the mother faces because of her hearing impairment and because English is not her first language.  However, it is clear from the correspondence between the mother and the father directly that she understands English well and had no difficultly at all in corresponding with the father in English and in quite sophisticated terms.

33. I am satisfied that the mother fully understands the effect and intention of the orders which were made on 14 April 2011 but that she does not intend to comply with them where they do not accord with her wishes.

34. It is important for H to attend school regularly and it is important that her days at school should be uninterrupted by either of her parents. The Principals of both the schools that H has attended have tried to impress upon the mother that her conduct is distressing to H and disruptive.

35. The only way that I can ensure that H will attend school on each school day is to make the orders which are sought by the father.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 29 February 2012.

Associate: 

Date:  29 February 2012