Oliveri and Oliveri (No. 2)

[2020] FamCA 1052

FAMILY COURT OF AUSTRALIA

OLIVERI & OLIVERI (NO. 2) [2020] FamCA 1052

FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Variation – Where the children currently spend limited supervised time with the father – Where the mother seeks that the interim spends time with orders be discharged – Where the mother seeks the children’s time with the father be at a contact centre and pending such arrangement that the time be professionally supervised – Where the mother also seeks that the father undergo a psychological assessment – Where the father opposes the mother’s application – Where the mother considers the father’s time spending with the children has not been properly supervised – Where the mother is concerned with the father’s parenting skills – Where the family report recommends the father’s time with the children be professionally supervised and reduced – Where there are allegations of family violence – Where the court needs to adopt a cautious approach with respect to interim parenting considerations – Best interests of the children – Orders.

Family Law Act 1975 (Cth) ss 60CC, 60CC(2), 60CC(3)

Marvel & Marvel (No. 2) [2010] FamCAFC 101

APPLICANT: Ms Oliveri

RESPONDENT: Mr Oliveri

FILE NUMBER: ADC 2966 of 2018

DATE DELIVERED: 10 December 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 17 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richards

SOLICITOR FOR THE APPLICANT: Resolve Divorce Lawyers

COUNSEL FOR THE RESPONDENT: Mr McGinn

SOLICITOR FOR THE RESPONDENT: Clelands Lawyers Adelaide Pty Ltd

Orders

1. That paragraph 2 of orders made 8 July 2020 is varied as follows:-

   (a)That X and Y both born … 2017 (“the children”) spend time with the father as follows:-

   (i)from 10.00 am until 3.00 pm on Saturday commencing 11 July 2020 and each alternate Saturday thereafter; and

   (ii)from 10.00 am until 3.00 pm on Sunday commencing 19 July 2020 and each alternate Sunday thereafter.

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 Oliveri & Oliveri 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 2966 of 2018

Ms Oliveri

Applicant

And

Mr Oliveri

Respondent

REASONS FOR JUDGMENT

Introduction  

1. Following a contested hearing on 17 June 2020, reasons for judgment were delivered on 8 July 2020.

2. Orders were made that until further order X and Y both born in 2017 (“the children”) live with the mother and spend time with the father as follows:-

   (a)from 10.00 am until 5.00 pm on Saturday commencing 11 July 2020 and each alternate Saturday thereafter;

   (b)from 10.00 am until 5.00 pm on Sunday commencing 19 July 2020 and each alternate Sunday thereafter.

3. It is a condition that the children’s time with the father be supervised by Ms B, Ms C, Mr D (“the supervisors”) or any of them.

4. The orders further provided that the parties attend upon a family consultant for the purposes of a family assessment and the preparation of a report pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”).

5. On 16 October 2020 it was ordered that further consideration of the interim parenting application be listed for hearing on 17 November 2020.

6. The anticipated family report was published on 5 October 2020 and made the following recommendations:-

   ·The father’s contact with the children be professionally supervised and be limited to no more than four hours every week.

   ·The father undergo a psychological assessment, preferably with someone who has a background in dealing with men with a family violence history, but also an understanding of addictive behaviours, in particular pornography.  F Centre provides counselling on these issues …

   ·The Court consider the father undertaking a hair follicle test for drugs if this has not already been done.

   ·An updated report be provided to the Court once there is evidence of the father’s commitment to supervised contact through a Contact Service and the father has undergone a psychological assessment.

   ·Information from the children’s therapist might also assist the Court.

   ·Information be sought from the mother’s therapist around her attendance, and mental health and, if possible, confirmation of when both parties sought out Ms G’s assistance.

   ·Information be sought both from the father’s therapist, Mr H, and from the father’s attendance at the Men’s Group.

   ·The appointment of an Independent Children’s Lawyer may also assist the Court.

7. It appears that the recommendations of Ms J (“the family consultant”) together with some observations of the mother as to the children’s presentation and a concern as to aspects of the father’s behaviour were the likely catalyst for the wife’s Application in a Case filed 23 October 2020, seeking that orders 2, 3 and 4 of the parenting orders made 8 July 2020 be discharged.

8. The mother seeks that the children spend time with the father supervised at the K Contact Service (“the Contact Centre”), and pending the commencement of the father’s time at the Contact Centre they spend time with the father supervised by Mr L or Ms M or such other “similarly qualified professional”[1] as may be agreed between the parties, at the father’s cost.

   [1] Application in a Case filed 23 October 2020, page 3.

9. The mother also seeks that the father’s time with the children, either supervised at the Contact Centre or by Mr L or Ms M, be subject to the further conditions:-

   ·that the father seeks a psychological assessment from Mr N or such other psychologist that may be agreed between the parties;

   ·that the father undergo drug testing pursuant to the hair follicle analysis process for the purpose of detecting any illegal drugs and/or substances; and

   ·that the father obtain a written report from Mr H.

10. It was conceded by the mother’s counsel that even though it was a recommendation of the family consultant that the father undergo drug testing, there was no basis for such an investigation and as such the order was not sought.

11. It is also accepted that the waiting time for acceptance into the Contact Centre is 12 weeks.

12. It is also likely that there would be some considerable delay in Mr L being able to assist in supervising the children’s time with the father, whereas Ms M is available at short notice.

13. By his Response to an Application in a Case filed 10 November 2020, the father seeks that the mother’s Application in a Case be dismissed and that in addition to the list of supervisors as set out in the order of 8 July 2020, Mr E be added as a further supervisor.

14. At the conclusion of submissions I indicated to counsel that it was unlikely I would consider a further supervisor being added.

Background

1. The background history of the parties is set out in the reasons for judgment delivered 8 July 2020.[2]

   [2] See Oliveri & Oliveri [2020] FamCA 545

2. It is a relevant consideration for the current application that the mother has alleged that the father perpetrated family violence during the course of their relationship.

3. It is noted that there is an intervention order in place in favour of the mother and the children designated as protected parties.

4. Each of the parties allege that the other presents as a risk to the children. For her part, the mother considers that the children are at risk arising from the history of family violence, whereas the father considers the children are at risk of psychological and emotional abuse from the mother’s hyper-vigilant conduct in respect of the children and what he contends is her conduct consistent with an intention to sever the father’s relationship with the children.

5. The father is currently facing outstanding charges alleging that he assaulted the mother.  Whilst the parties were initially not able to agree the status of the outstanding criminal charges, it now appears that at least for the time being, the charges are still pending.

The mother’s application

1. The mother acknowledges that the children have continued to spend supervised time with the father from 10.00 am to 5.00 pm on each weekend, alternating between Saturdays and Sundays.

2. For reasons that are not entirely clear, the mother has been able to consider the father’s mobile phone records.  By matching the relevant phone record to the dates as set out in paragraph 5.2 of her affidavit filed 23 October 2020, the mother contends that on the particular days identified, the father was in telephone communication with the supervisor, suggesting that the father’s time with the children was not being supervised.

3. The mother remains concerned that on the days nominated in paragraph 5.4, the children told the mother that they had not been to the toilet whilst with their father.

4. The mother also complains as to the children returning from their time with the father and behaving aggressively and negatively to her.

5. The mother’s concerns were such that she informed the father on 7 August 2020 that the children had been referred to a child psychologist.

6. At paragraph 9 of her affidavit, the mother alleges that she received an anonymous delivery of an orchid and some chocolates from an Adelaide florist to coincide with her birthday in mid-2020.  The mother made some further inquiries and following her accessing the father’s credit card statement for the relevant period, discovered a transaction in mid-2020 to “O Florist”[3] in the sum of $180.

   [3] Affidavit of the mother filed 23 October 2020, paragraph 9.

7. The mother is concerned that the flowers and chocolates were sent by the father in contravention of the interim intervention order which prevents the father from contacting the mother either directly or indirectly.  The mother has referred the matter to the South Australian Police.

8. The father has declined to respond to the mother’s allegation.  Whilst he is not obliged to do so, I am entitled to consider the evidence as presented by the mother and on that basis it is reasonable to find, on the balance of probabilities, that it was the father who forwarded flowers and chocolates to the mother.

9. A summary of the mother’s position is as follows:-

   (1)That the father’s time with the children is not being supervised diligently.

   (2)That the supervision is inadequate in that it allows the father to interact with the children in an aggressive environment.

   (3)That the father lacks parenting skills in that he is not able to ensure that the children follow an appropriate toilet training routine.

   (4)That the father continues to perpetrate family violence and in any event in contravention of the current intervention order.

10. Save and except for the allegation that the father forwarded flowers and chocolates to the mother on her birthday, the father denies each and every allegation made by the mother.

11. In particular, the father sets out that he is vigilant in respect of the toileting of the children and takes the precaution of having a minimum of five pairs of underwear.

12. The father sets out some of the activities undertaken by him when the children are with him.

13. The father denies that he says anything other than positive things about the mother and encourages the children to engage affectionately with her.

14. Specifically, the father denies that there has been any occasion when the children have been in his care without supervision.

15. The father relies upon the affidavits of his supervisors which taken together represent a denial of the mother’s principal allegation that the children’s time with their father is not supervised.

16. I am not able to make a finding that the supervisors have been complicit with the father in allowing him to have unsupervised time with the children or even that the supervision, if occurring, has allowed the father to denigrate the mother.

Family report

1. The family consultant undertook interviews with the parties and observations of interaction with the children in September 2020.  The family consultant also had the advantage of the Court file including the affidavits of the parties, proposed supervisors and my judgment delivered 8 July 2020.

2. Counsel for each of the parties assisted the Court by providing written submissions.  The mother’s focus is very much upon the recommendations of the family consultant and a consideration that the children may be at risk in respect of the following matters:-

   ·Family violence and abuse

   ·Child safety and wellbeing

   ·Alcohol and substance abuse

   ·Mental health

3. The response on behalf of the father argues that there is good reason, self-evident from the construct of the family report, which would suggest the Court should give the report limited weight.

4. The father argues that the family consultant fell into error by accepting without question the history as presented by the mother and by a determination that the mother’s narrative is consistent with him being a perpetrator of family violence.

5. Whilst exaggerated in its presentation, the father’s submissions contend that there are aspects of the report that are both racist and sexist.

6. The family consultant noted that the mother had alleged a significant history of family violence but did not acknowledge that the father had made a similar complaint.

7. It is likely that the family consultant was influenced by the mother’s history of family violence.  In particular, the following appears at paragraph 32 of the report:-

   When asked about what appear to be discrepancies in her narrative around some of the family violence, [the mother] said the videos ‘speak for themselves’ and she has told the police what happened.  She also claimed she has taken all of the evidence she has to the police.  [The mother] said she taped a number of conversations with the father and has his phone records to support her claims.  When asked how she was able to gather so much evidence, she explained that the Domestic Violence workers and her counsellor had encouraged her to do so.  She has given a 76 page document to the police.  [The mother] also claimed that the police have seen footage of the father and one of the alleged incidents of violence and said ‘well the videos don’t lie’.  She also believes this one footage alone is enough to charge [the father].

8. The mother described the father as a “cruel man”.[4]  She also described him as a “monster”.[5]

   [4] Family Report dated 5 October 2020, paragraph 33.

   [5] Ibid.

9. The family consultant recorded the candid admissions by the father that he had attended massage parlours and had had regard to pornography.

10. The father had advised the family consultant that he had undertaken a family violence course through P Services and had sought the assistance of Mr H from Q Services, a counsellor experienced in working with men.

11. The father summarised the outcome of the therapeutic intervention and group counselling by his claim that he now had a “greater awareness, that what worked before, might not work now, the importance of emotional intelligence and resetting his moral compass”.[6]

    [6] Family Report dated 5 October 2020, paragraph 58.

12. The father apparently continues to be a part of the P Services Men’s Group.

13. The family consultant was able to contrast the observations of the children with each of the parties.  The family consultant considered that the father lacked emotional attunement to the children as distinct from a more natural and demonstrably close relationship between the children and the mother.

14. Whilst the family consultant considered that it is a matter for the Court to determine the veracity of the mother’s allegations in respect of family violence, it seems that the family consultant considered that the mother’s history of interaction with the father involving sudden eruptions of aggressive and controlling behaviour “are consistent with the concerns the mother has reported in regard to [the father] and his capacity to suddenly ‘change’.”[7]

    [7] Family Report dated 5 October 2020, paragraph 94

15. The family consultant was also concerned that the independence of the supervisors may be undermined by the father.

Report of Mr H

1. The father attended upon Mr H for counselling on 15 and 24 March 2020, 6 April 2020 and 4 November 2020.

2. The father acknowledged that he had engaged in verbal abuse towards the mother and her mother-in-law but denied that he had been physically abusive.

3. The sessions also explored whether the father was controlling during the relationship and noted the father’s concession that he had referred to the mother as “[fucking] useless”[8] and that his behaviour was like a cyclone in that it “would destroy all in [his] path”.[9]

   [8] Exhibit “1”, page 3.

   [9] Ibid.

4. Mr H summarises the therapeutic intervention with the father by concluding that:-

   [The father] had expressed a desire to attend to his flaws and has thus acknowledged his use of ‘grotesque’ verbal abuse against the mother and mother-in-law, and that his behaviour had been ‘over the top’ and provocative.  He acknowledged pushing the mother.  He has acknowledged that his wilfully separating the child Y from his mother over four days would have had a devastating impact on the mother.[10]

   [10] Ibid.

5. Mr H considered that the counselling may well have resulted in the father gaining better insight into his conduct and behaviour and the adverse impact that it has on the mother.

Parenting considerations

1. I am obliged to consider the competing applications of the parties and to decide what is in the best interests of the children as the paramount consideration. In doing so, I must consider the provisions of s 60CC of the Act as to primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).

2. I am reminded of the need to adopt a cautious or conservative approach in respect of interim parenting considerations as considered by the Full Court in Marvel & Marvel (No. 2) [2010] FamCAFC 101 at [120].

3. The significant tension is to balance the benefit to the children of having and maintaining a meaningful relationship with their father as against the greater obligation of the Court to ensure that the children are kept safe.

4. The issue of protecting the children from the risk of physical, emotional or psychological abuse was given careful consideration in my judgment of 8 July 2020.  I considered that the imposition of supervision of the father’s time reflected an appropriate balance.

5. I am not satisfied that the mother has raised significant doubt as to the appropriateness of members of the father’s family being supervisors.

6. I consider that the matters raised in the affidavits of the supervisors provide a credible response to the mother’s assertions as set out in her affidavit.

7. Over and above those matters, I am also obliged to consider the impact that family violence may have on the orders that the Court considers are in the children’s best interests.

8. The father has admitted to conduct which would support a finding that he has perpetrated family violence, in particular by the use of aggressive and demeaning language.

9. The report of Mr H is of assistance.  Consistent with the father’s approach to the family consultant, the father was also candid to Mr H.

10. I do not ignore that prior to the attendance with Mr H on 4 November 2020, the next most recent session was on 6 April 2020.  The mother’s counsel argues that the advent of Mr H’s report following the most recent therapeutic session should be seen only as the father attempting to assist him in resisting the mother’s application for the father’s time to be supervised by a Contact Centre and under professional supervision.

1. Whilst it might be said that the issue of family violence is a matter of history, the forwarding by the father of flowers and chocolates to the mother on her birthday may represent a breach of the intervention order and in the absence of any explanation, may well be considered as an attempt to intimidate the mother.

2. The impact of family violence is usually directed to a partner but has the detrimental consequence of impeding the manner in which the mother is able to properly parent the children.

3. In the absence of explanation, it is reasonable that I give weight to the mother’s concerns in respect of family violence.

4. I propose to bring to account the father’s conduct by reducing the time that the children spend with the father to 3.00 pm on each of the Saturday and Sunday. The shorter periods will reduce the mother’s anxiety and reflect the concerns of the family consultant that the father may not be attuned to the children.

Conclusion

1. I make orders as appear at the commencement of these reasons.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 10 December 2020.

Associate: 

Date:  10 December 2020