Mills and Petrucci

[2017] FamCA 146

FAMILY COURT OF AUSTRALIA

MILLS & PETRUCCI [2017] FamCA 146

FAMILY LAW – CHILDREN – FINAL ORDERS – best interests of the child – where it was ordered the mother have sole parental responsibility – whether the child should communicate with the father – consideration of whether communication with the father would be in the child’s best interest

Family Law Act 1975 (Cth) ss 60CC, 62G(2)
APPLICANT:	Ms Mills

RESPONDENT: Mr Petrucci

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 2592 of 2011

DATE DELIVERED: 20 February 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 20 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ross

SOLICITOR FOR THE APPLICANT: Hume Taylor & Co

COUNSEL FOR THE RESPONDENT: Ms Cocchiaro as courtesy to Court and excused

SOLICITOR FOR THE RESPONDENT:	N/A
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Mr Hemsley

INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of SA

Orders

1. All previous orders be discharged.

2. The mother have sole parental responsibility for the child B born … 2008 (“the child”).

3. The said child do live with the mother.

4. The father spend no time with the said child.

5. In the event of the child expressing a wish to initiate contact with the father, the mother will do all things as soon as practicable thereafter to advise the father of such expressed wish.

6. The father be at liberty to obtain school reports and/or school photographs from the child’s school from time to time at the father’s sole expense and the mother shall within 7 days provide all such authorities to the child’s school (or within 7 days of enrolment at any subsequent school) to release such information to the father.

7. The father be restrained and an injunction is hereby granted restraining him from approaching, communicating or coming into contact with the child or any school or teacher or staff member associated with any school the child attends from time to time SAVE AND EXCEPT to give effect to paragraph 6 of these orders.

8. The mother shall as soon as practicable notify the father in the event of the child suffering a significant or life threatening medical emergency or illness PROVIDED the father be restrained from contacting any specialist, medical practitioner or other health professional who is treating the child.

9. That the appointment of the Independent Children’s Lawyer be discharged.

10. That all proceedings be removed for the pending list of cases.

Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mills & Petrucci has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2592 of 2011

Ms Mills

Applicant

And

Mr Petrucci

Respondent

And

Independent Children’s Lawyer

EXTEMPORE REASONS FOR JUDGMENT

1. The proceedings before the Court are in respect of an Initiating Application filed by Ms Mills (“the mother”).  The Amended Application was filed on 2 December 2016 but that belies the extensive history of the matter which commenced in 2011in the Federal Circuit Court until 2 May 2014 when the proceedings were transferred to this Court to the present when the matter has finally reached a final hearing.  The proceedings relate to parenting arrangements in respect of B, born in 2008 (“the child”).

2. There have been some significant changes in the orders that the mother seeks leading up to the proceedings and in particular as at the date that this matter was listed for hearing, the mother sought orders that she have sole parental responsibility for the child and that the child live with her and spend no time with the father.  In anticipation of the trial, the mother filed the Amended Application on 2 December 2016 which sought additional orders.  The first was that the father be at liberty to send correspondence, communication and a small gift to the child.  The frequency was not more than on one occasion per month in respect of letters.  The gifts were restricted to Easter and Christmas.  The orders provided for the mother to have the ability to censor the letters or the gifts if she considered that they were not appropriate.  Paragraph 7 of the application proposed that in the event the child expressed the wish to initiate contact with Mr Petrucci (“the father”), then the mother would facilitate that contact.  Paragraph 8 provided for the father to be at liberty to obtain school reports and school photographs from the child’s school at his sole expense.  Paragraph 9 provided for the mother to advise the father of any change in the child’s school and paragraph 10 provided that the mother would notify the father as soon as practicable in the event that the child suffered a significant or life threatening medical emergency injury or illness.

3. In anticipation of the proceedings starting this week, the matter came before me for compliance.  On that occasion counsel for the mother advised that the mother was now no longer seeking the extended orders which justified the amended initiating application, but rather, was now reverting to the more limited orders, that being that the mother have sole parental responsibility and the child live with her.  The anticipated effect of the mother’s further amended orders was that the father would have no involvement in the child’s life and there would be no communication or contact or engagement at all in respect of the father’s involvement with the child, nor would the father be able to know any aspect of what was occurring in the child’s life.

4. When the matter came before me, I was prepared to consider dealing with the matter to finality.  It was possible to do so because the Court file reflected that on 25 January 2017 a Notice of Discontinuance was filed by the father’s solicitors, Ms Cocchiaro, indicating that the father was discontinuing his Response to the Initiating Application filed on 27 May 2014.  I was satisfied that the terms and conditions of the amended initiating application had come to the attention of the father, but I was not satisfied that he was now aware of the mother’s current position.  The difficulty was that his notice of discontinuance and subsequent non-attendance was on the basis that he conceded that if he did not attend, the Court may make orders as being sought by the mother in the amended application, as opposed to the more limited orders that she now seeks. 

5. The matter was adjourned until this morning.  Ms Cocchiaro for the father attended and the Court notes that while she was not obliged to attend, the notice of discontinuance having been filed, and a notice of ceasing to act clearly evident on the Court file, she was helpful in that she confirmed that a document in the same terms as exhibit “1” in these proceedings, namely, a Minute of Order that had been tendered by Ms Ross on the last occasion, had been forwarded to her client.  That he was aware of those orders and that she had received no communication or correspondence, or indeed, more relevantly any further instructions from the father.  As far as she was concerned the mother’s changed circumstance in terms of the orders that she sought had been brought to his attention.

6. The father is not present.  I am satisfied that the matter is able to proceed to finality.  That does not mean that orders are being made by default, but rather, I am still obliged to make orders that in all the circumstances are in the best interests of the child.  That task becomes less complex by the Court being entitled to consider and place weight on the uncontested evidence that is presented on behalf of the mother, and also to a more limited extent by the Independent Children’s Lawyer (“ICL”).  That does not mean that I am obliged to accept everything that is said by the mother in terms of the affidavits that she relies upon as part of her case, but it does mean that I am not obliged to look quite as critically, or to consider alternative propositions that may have been put forward if the matter had remained contested.

7. Opportunity was given to the mother and to the ICL each by their separate counsel to cross-examine the family consultant, Mr C.  Mr C has had a long involvement with the matter.  He has prepared two reports.  Other reports have been prepared, but of more recent date and of more temporal relevance are his reports of 4 November 2014 and his most recent report of 16 January 2017.  Neither counsel sought that Mr C be called. 

8. The importance of Mr C is not just simply in the discharge of his duties and obligations as a family consultant having prepared a report pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”), but rather because it was his recommendations that the mother provided the justification for her to reassess the orders that she was seeking in the amended initiating application and therefore to seek orders of a more limited compass. Whilst there is significant support by Mr C in respect of orders that would see the child remain in the sole care of the mother, that she should have sole parental responsibility and that there should be no order made that would permit the father to forward communication, letters or gifts to the child, his report does not consider initiation of contact with the father by the child, or the father being at liberty to obtain school reports, or indeed the mother being obliged to advise the father of any life threatening or other medical emergency.

9. The history of the matter is well understood.  I have had the advantage of the amended initiating application, the mother’s trial affidavit of 2 December 2016, the supplementary affidavits of Ms D Mills of 2 December 2016 and Mr E, also of 2 December 2016.  Those affidavits do not take the matter much further and to a significant degree the orders that I make are really dependent upon the affidavit of the mother and the report of Mr C.  The mother sets out an accurate history. The essence of the mother’s opposition to orders that might see the father having some level of contact, communication or engagement, or involvement with the child, really arises because of the mother’s belief that the father has behaved inappropriately in respect of the child, and that she has been the subject of sexual abuse at his hands.  Those matters are set out at paragraph 26 of the mother’s trial affidavit, under the heading of “[The child’s] Disclosures”. 

10. The child made certain disclosures that the father had touched her inappropriately on her genitals, that the behaviour was unwarranted and that she was frightened by the behaviour.  The mother says that as a result of that contact, the child was the subject of unwanted and inappropriate touching by the father.  The mother’s evidence is that the child has had a number of adverse and obvious reactions.  They are matters set out at paragraph 34 of the mother’s trial affidavit.

11. As would have been expected, the child’s disclosures were the subject of significant investigation and in this case during the period that those matters were the subject of investigation the father’s time was suspended.  The father was ultimately charged in 2014 with the offences of indecent assault and engaging in an act of sexual manipulation for prurient purposes.  Those matters proceeded to a hearing in the District Court of South Australia.

12. In 2016, the District Court Judge provided reasons in respect of the charges.  The father had pleaded not guilty and elected for trial by Judge alone.  The inadequate summary of all that is contained in the Judge’s detailed reasons is that the Judge was unable to reject the accused account as a reasonable possibility.  There was a reasonable doubt.  That had an impact in terms of the father’s position in the proceedings. 

13. The way was then clear for the matter to proceed by way of a contested hearing in this Court with the father maintaining that he did not act inappropriately with the child and that there was no attendant risk to the child of a resumption of time, although he accepted that there would be difficulties in that process and understood that there may be a pathway that would have be undertaken to lead to the ultimate goal of re-unification.  They are matters that the father expressed to Mr C.  They are not matters that he expressed in an affidavit, there being no affidavit before the Court, the father having discontinued with the orders that he seeks in his response.

14. The mother, however, does not necessarily accept the outcome of the District Court proceedings.  That is not an outcome that necessarily means that the mother’s allegations based upon the child’s disclosures will bring that issue to an end.  It does not.  Proceedings in this Court are not required to focus on absolute proof.  I should be reluctant to focus on whether a party is guilty or innocent.  Equally, it is not necessary that I make a finding that on the balance of probabilities, the allegations that the mother makes in respect of the father’s conduct towards the child are made out. 

15. The issue is whether, bringing to account all of the evidence and all of the circumstances, there is a risk to the child.  If there is a risk, the extent of that risk.  If an unacceptable risk, that does not necessarily mean that there should be no parenting orders made or that a party loses a right or entitlement to spend any time with a child or that the child would not necessarily benefit from spending time with a parent.  It may do, but it then requires the Court to consider what other orders could or should be put in place if the risk is able to be managed and the continuation of the relationship is seen to be in the best interests of the child. 

16. It is conceded in this case that in the manner in which it is proceeding today, it would not readily enable the Court to decide that there is an unacceptable risk.  I do not consider that that is necessary to do so in terms of the substantive orders that the mother seeks.  The consideration in respect of those orders is to be found not necessarily in the allegations of disclosure and the belief of the mother that there has been sexual abuse of the child, but rather the effect of the proceedings, both in this Court, the attendant assessments that the child has been obliged to undergo, but perhaps more relevantly, the proceedings in the District Court, the child has developed significant anxiety and distress. 

17. The earlier orders of this Court in particular but not necessarily the only order relating to the child’s involvement in a therapeutic process can be seen from orders made on 28 November 2014.  That provides that the mother do all things necessary to ensure that the child undergo appropriate psychotherapeutic assistance as recommended by a suitably qualified counsellor as may be recommended by the ICL.  There are certain terms and conditions in relation to that therapeutic involvement and, in particular, the order notes that there is a further order made that the mother is restrained and an injunction granted restraining her from permitting the child to undergo any other counselling, psychology and related therapy. 

18. That order of 28 November 2014 is an indication of the extent to which the child has engaged in therapeutic intervention.  That therapeutic intervention is the subject of comment and remark by the family consultant in his final report of 16 January 2017.  It is a significant basis for the recommendation that Mr C makes that the child continue to receive psychotherapeutic assistance from Mr F, but that the child not spend any time with or communicate with the father.  Put simply, Mr C was concerned as to the child’s presentation to him, and was able to observe a significant change in the child’s demeanour, attitude and presentation when talking about matters of her general life as opposed to matters that touch upon her relationship with her father. 

19. Mr C was concerned that the child was certainly not able, emotionally or psychologically, to deal with the topic of her father, let alone the potential difficulties that the child would experience if any order was made or, indeed, any circumstance were to occur that the child would come in contact with the father.  The evidence of Mr C based upon his discussions with Mr F is sufficient to promote the orders that the mother seeks in terms of an order of sole parental responsibility that the child spend no time with the father. 

20. That outcome does not require a finding that there is an unacceptable risk, nor do I consider that I could make that finding.   It is the child’s presentation that prompts me to find favour with the orders that the mother seeks as opposed to separate or independent finding by me that there has been evidence presented sufficient for me to establish that the father presents as an unacceptable risk to the child. 

21. It does not require a finding of unacceptable risk, and I can only assume that was a deliberate process put in place by the mother’s counsel and solicitors, it was unnecessary in the circumstances of the case and where the court could place significant reliance upon the Notice of Discontinuance.  That, of course, does not mean that the Court could not or should not consider when consideration is being given to an order that would sever all relationship between a father and a child, that other ancillary orders should not be made.  It is a curious process that has occurred in this case in that, as recently as 2 December 2016, the Amended Initiating Application of the mother must be interpreted as assuming that the orders she sought in that amended document, namely the communication by the sending of gifts and letters, the ability of the father to obtain school reports and some information being provided to the father in relation to any life-threatening or significant medical history or illness that they were considered to be in the best interests of the child. 

22. The explanation for the change is the recommendations of Mr C.  Mr C’s report can only go so far and it cannot assist as it is not directed to issues other than communication, sole parental responsibility and an order that the child live with the mother.  Mr C was not asked and did not consider the other orders that the mother sought in her current application.  Accordingly, I have to consider what orders should be made in a vacuum. 

23. It is not a matter for me in terms of some flight of fancy to divine the orders that I think should be put in place as if I was one of the litigants to the proceedings or, indeed, to stand in the shoes of the father.  I do not necessarily need to do that, because I have the Amended Initiating Application which sought those orders and was only changed as a result of the recommendations of Mr C.  Those recommendations do not nearly go so far as to suggest that all of the orders that the mother had sought were unwise or not in the interests of the child. 

24. The orders that the mother seeks are dramatic.  If they are made, that would effectively sever the relationship between the father and the child.  It is not the case that, simply because the child would appear not to want a relationship with her father that the matter needs not to be further considered.  That would be disrespectful of the child.  It would also place an unfair onus on the child.  I would not wish that at some point in this child’s future for it to be considered that it was the child’s fault that she did not wish to have a relationship with her father and, accordingly, everybody fell in with that.  That is not what’s happening here and is not what I think the mother is saying to me. 

1. The mother’s position is that the child should not make the decision and it is not a matter of giving absolute weight to her wishes, although under the Act I am obliged to consider any views that a child may express and give them as much weight as is reasonable. In this case, the mother is saying I do not need to be concerned about that because the objective observations in respect of the child and her presentation and her emotional and psychological fragility are sufficient, in any event, to justify the orders. It is a position that I agree with.

2. It is difficult, at this stage, to understand or know what the future might hold in respect of the child.  Given the limitations of the evidence, it is difficult to argue against the proposition that the mother initially held, namely, that if the child at some point expressed the wish to initiate contact with the father, then in some way that should be facilitated.  The ICL sensibly considers that there is some merit in the general concept, but that it should not simply be an obligation on the mother to facilitate that contact, but rather the obligation should rest with the mother advising the father that the child has a wish to initiate contact, I propose to make an order in those terms. 

3. Careful consideration has been given by the ICL and the mother in terms of whether there should be some provision of authority to the school to provide school reports directly to the father.  There was consideration given as to whether those reports should be the subject of redaction, should be of limited compass, but ultimately I consider that sort of device is more likely to lead to difficulties rather than otherwise.  There is no good reason why the father should not have an understanding about his daughter’s scholastic activities, how she is going and what she’s doing. It may well be that if at some point in the future the child wishes to make contact with her father, that pathway will have less anxiety attached to it if the father already has at least some information about her progress. 

4. That is not meant to suggest that there should be any amelioration to the overarching consideration of these orders, which is that the father should have nothing to do with the child and should not be permitted to communicate with her. What is promoted by the ICL is that there be an injunction put in place that would restrain the father from approaching the child and/or the child’s school.  That order has much to commend it and would provide the appropriate counterfoil in respect of any risk that might be attendant upon an order being made in terms of paragraph 8 as was once sought by the mother. 

5. The mother has also conceded that it would be reasonable for the father to be advised of the child suffering a significant or life-threatening medical emergency, injury or illness.   Whilst obviously it is not thought and hoped that any significant event of that sort would be occasioned to this child, it would be a difficult circumstance if the child suffered a life-threatening medical emergency and the father was not permitted to know that it had occurred. 

6. In considering any matter, it is not a matter of me making orders by default. Whilst not akin to a consent order, the issue is whether the notice of discontinuance truncates the nature and the extent of the inquiry that I am required to make. It can be assumed that in coming to any decision, I have given careful regard to the relevant sections under s 60CC of the Act, and in particular in this case, and again not dissimilar to many other cases, the primary considerations are really the gravitas of the proceedings.

7. The primary considerations require the court to have regard to the benefits to a child of having a meaningful relationship with both parents, but to temper that consideration with a need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Lest there is any misunderstanding as to the weight and how I am to bring those competing obligations to bear, s 60CC(2A) of the Act requires that in applying the considerations as set out in subsection (2), the court is to give greater weight to the considerations in paragraph (2)(b), namely the need to protect the child.

8. That does not mean that they are in absolute terms or that one is mutually exclusive.  There may be other orders that would have to be put in place in order to ensure that the need to protect a child is given appropriate weight.  In this case the position is absolute.  The need to protect the child from physical but more relevantly in this case psychological harm is reflected in the orders that I am about to make, which is that the mother have sole parental responsibility and that the child live with her and spend no time with the father. 

9. The additional considerations are relevant, and in particular I bring to account the views of the child. That issue in s 60CC(3)(a) of the Act has been given careful consideration today and in the helpful submissions by the mother’s counsel and counsel for the ICL in terms of grappling with whether it would be appropriate in all the circumstances to put in place other ancillary orders which don’t derogate from the principal objective in terms of the order that the father have no time with the child but provide some context to those orders to being to account future issues that may arise.

1. It is hoped that the resolution of the proceedings will have the beneficial effect upon the child, namely that she will have some confidence that she is no longer involved in proceedings either in this Court or in any other court.  Hopefully she will have some certainty that she no longer needs to be as anxious as she currently is or that she needs to harbour any fears, residual or otherwise, and that she will be able to focus on those matters of development, improvement, relationships that every child of the child’s age should be able to do without the impost that these proceedings have placed on her.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 20 February 2017.

Associate: 

Date:  13 March 2017.