OLIVERI & OLIVERI

[2020] FamCA 545

FAMILY COURT OF AUSTRALIA

OLIVERI & OLIVERI [2020] FamCA 545

FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests of a child – Family Violence – Interim orders – Where the wife seeks that the children live with her and spend no time with the husband – Where the husband does not oppose the children living with the wife but seeks that the children spend time with him – Where there are pending criminal proceedings of alleged domestic violence – Where the veracity of the wife’s allegations and husband’s denials cannot yet be determined – where the Court should adopt a cautious approach – Orders.

FAMILY LAW – CHILDREN – Parental Responsibility – Where the wife seeks sole parental responsibility – Where the husband seeks equal shared parental responsibility – Where the parties have not addressed the issue of parental responsibility – Where no evidence is presented of difficulties with day to day and long term issues pending final hearing – Where there are means by which the parties can communicate.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(3), 62G(2), 65DAA

Marvel & Marvel [2010] FamCAFC 101

APPLICANT: Ms Oliveri

RESPONDENT: Mr Oliveri

FILE NUMBER: ADC 2966 of 2018

DATE DELIVERED: 8 July 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 17 June 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 X and Y both born … 2017 (“the children”) live with the wife.

2. That the children spend time with the husband 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. The time that the children will spend with the husband shall be supervised by Ms B, Ms C, Mr D (“the supervisors”) or any of them.

4. That handover shall be effected at the wife’s home or at such other place as the parties may agree on the following conditions:-

   (a)       The husband is to be accompanied by one of the nominated supervisors;

   (b)That handover shall take place at the front door of the wife’s premises unless otherwise agreed between the wife and the supervisor;

   (c)That the parties are restrained and an injunction granted restraining each of them from coming into contact with each other at handover.

5. That the parties and the children do attend upon a family consultant as may be nominated by the Director of Court Counselling for the purposes of the preparation of a report pursuant to s 62G(2) of the Family Law Act 1975 (Cth), with such report to be completed by 30 September 2020.

6. That the proceedings be adjourned generally to 16^th day of October 2020 at 9.15am.

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. By Amended Initiating Application filed 29 May 2020, Ms Oliveri (“the wife”) seeks final and interim orders for property settlement and parenting issues in respect of X and Y both born in 2017 (“the children”).

2. By Response filed 20 May 2020, Mr Oliveri (“the husband”) opposes the orders sought by the wife.

3. The late filing by the wife of an Application in a Case on 15 June 2020 seeking for the real estate of the parties, either jointly or severally owned or held by an entity controlled by the parties to be sold necessitated an adjournment of the interim property application to enable a response to be filed.

4. The parties remain unable to agree the interim parenting arrangements for the children.

5. The wife seeks that she have sole parental responsibility for the children and that they live with her and spend no time with the husband.

6. The husband seeks that the parties have equal shared parental responsibility for the children, that they live with the wife and spend time with him as follows:-

   a)Each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday; and

   b)In the intervening week from 5.00 pm Wednesday to 5.00 pm Thursday.

Background

1. The parties commenced cohabitation in July 2010 and were married in 2015.

2. The parties’ relationship was clearly troubled.  They separated in July 2018 but were able to reconcile their differences in August 2018 until their further separation in September 2018.

3. Following the wife’s allegations of family violence and an incident involving the husband removing one of the children from the wife’s care, the parties separated on 10 September 2018.

4. The parties were able to effect a reconciliation on 16 October 2018 and remained in a relationship until the most recent separation in March 2020 which was the catalyst for the current proceedings.

5. The wife filed an Initiating Application on 25 July 2018 for parenting orders and later an Amended Initiating Application in September 2018 for both parenting and financial orders.

6. On 27 September 2018 orders were made that provided for the children to live with the wife and to spend time with the husband each Saturday from 10:00 am until 6:00 pm.  As and from 27 October 2018 the children were to spend time with the husband each weekend from 10.00 am Saturday until 12 noon on Sunday.  Handover was to take place at the former matrimonial home and to be undertaken in a polite and respectful manner.

7. The following orders were made:-

   11.Both parties to continue to consult with their mental health professionals.

   12.       Each party is restrained from:-

   (a)threatening, abusing, assaulting or intimidating the other parent;

   (b)abusing, criticising or denigrating the other parent in the presence of the children and from allowing any other person to do so; and

   (c)discussing any issues raised in the proceedings on any social media website.

8. The proceedings were adjourned to 22 January 2019, however consequent upon the reconciliation of the parties orders were made on 18 October 2018 that dismissed the proceedings and discharged all existing orders save and except for orders 11 and 12 made on 27 September 2018.

9. The Court considered that the parties would benefit from ongoing relationship counselling that had as the focus the support of the children.

10. Each of the parties has filed a Notice of Child Abuse, Family Violence or Risk of Family Violence.

11. The husband contends that the wife has exposed the children to emotional and psychological abuse.  His principal concern is that the wife suffers from as yet undiagnosed mental health issues.

12. The husband concedes that there is an intervention order in place in favour of the wife and the children as protected parties which arises from a verbal altercation between the husband and the maternal grandmother on 2 March 2020.  It appears that this incident was the catalyst for the parties’ final separation.

13. There is contention between the parties as to what transpired between the husband and the maternal grandmother but in summary, the husband’s position is that the wife was not present and her version of the incident is not based on her first hand observations but rather as told to her by the maternal grandmother.

14. The potential for psychological and emotional abuse of the children arises from the hypervigilance of the children and the husband’s assessment that the wife is deliberate in her attempts to keep the husband from enjoying a relationship with the children.

15. The wife filed a Notice of Abuse, Family Violence or Risk of Family Violence on 29 May 2020. 

16. The wife considers that the following matters at [6] constitute a risk of abuse to the children:-

    2.The mother deposes to a significant history of family violence perpetrated by the father against the mother in the presence of the children which has included (and is not limited to):-

    (a)The father would kick and push the mother while the mother was holding the children.

    (b)The father grabbed the mother around the throat and pushed her against the wall while in the presence of the children.

    (c)The husband would come in the bedroom where the children were sleeping which would wake the children, unsettle them and the children would struggle to re-settle again.

    3.The mother says that since separation the children are more settled, relaxed and happy noting the father’s absence.

17. The gravamen of the wife’s allegation that the children are at risk is her alleged history of family violence perpetrated by the husband from April 2017 up to the most recent date of separation.

18. The family violence has included:-[1]

    (a)The father saying to the mother words to the effect of “I just want to kill you.  I want to get a knife and slit your throat” , “I hate you” “I’m going to bury you” “you are useless”.

    (b)Multiple occasions where the mother says that the father has kicked and pushed her whilst she has been holding the children.

    (c)Occasions where the father has grabbed the mother by the throat and pushed her up against the wall.

    (d)The husband grabbed a knife and slammed it into the kitchen bench in front of the mother and children while screaming at the mother.

    (e)The husband grabbed a solid metal baton and pinned the mother down on the bed with one hand around the mother’s throat and raising the baton above the mother’s head threatening to hit the mother with the baton.

    [1] Notice of Child Abuse, Family Violence or Risk of Family Violence filed 29 May 2020 at [14].

19. It appears that the husband has now been charged with seven counts of assault and as discussed the imposition of an interim intervention order.

20. The particulars of the alleged family violence are set out at [25] of the wife’s affidavit of 29 May 2020.

21. The husband denies the wife’s allegations and considers that it is an important consideration that they are largely historic, having been alleged to have occurred in 2017/2018, prior to the parties reconciling in October 2018.

22. The wife seeks that the husband spend no time with the children pending the resolution of the outstanding criminal charges.

Interim parenting considerations

1. In Marvel & Marvel [2010] FamCAFC 101 at [120] the Full Court considered the approach to be adopted when presented with contested evidence on an interim hearing:-

   As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (section 61DB).

2. I consider that a cautious approach should always be adopted in circumstances where the evidence has not been tested. That does not mean that the Court is not able to make an appropriate interim order.  Whilst a Court should generally be risk-averse and cautious, I am not obliged to only make orders consistent with the current arrangements and status quo.

3. The competing applications of the parties must be considered pursuant to s 60B of the Family Law Act 1975 (Cth) (“the Act”) which outlines the objects and principles underlying Pt VII of the Act.

4. Section 60CA of the Act requires that in deciding whether to make a particular parenting order the best interests of the child is the paramount consideration. In order to determine what is in the best interests, the Court must consider the provisions of s 60CC of the Act as to the primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).

5. I am obliged to adopt a practical approach in respect to the application of the factors as set out in s 60CC of the Act. Not all of the primary and additional considerations will apply. It may well be an unnecessary distraction to consider those factors which have little or no practical relevance, thereby giving inadequate weight to the factors that need more detailed consideration.

6. The parties have opposing positions in respect of parental responsibility.

7. Each of the parties allege that the other has perpetrated family violence.  The husband does not concede that there is substance to the wife’s assertion that the husband subjected her to emotional, psychological and physical abuse, nor does the wife concede that she has fabricated allegations of family violence in an attempt to disrupt his relationship with the children.

8. In those circumstances I am not obliged to consider the provisions of s 65DAA of the Act and in any event, consider that it would not be in the children’s best interests for their care to be shared equally between the parties.

Parenting considerations

Meaningful relationship

1. The wife’s final orders sought do not support the children having a meaningful relationship with the husband, although she reserves the opportunity to better particularise parenting matters at the conclusion of the husband’s criminal proceedings.

2. The husband seeks that the children live with each of the parties on a week about basis.

3. The wife does not consider that on an interim basis the husband should be involved in the day to day and routine activities of the children.  She does not consider that the children should spend time with or communicate with the husband until the criminal proceedings have resolved.

4. There is no information provided by the wife as to the timetable for the husband’s criminal proceedings. It is a reasonable conclusion that given the current acknowledged delay in the resolution of criminal proceedings in the Magistrates Court of South Australia given the COVID-19 restrictions, the delay is likely to be significant.

5. It is a relevant factor that the children are three years of age and have not spent time with the husband since March 2020.

6. At present it could not be said that the children have a meaningful relationship with their father.

7. There is disagreement between the parties as to the extent of the husband’s involvement with the children prior to the most recent separation.

8. The orders of 27 September 2018 can be taken as a concession by the wife, that at that time she considered that the interests of the children were best served by them having a relationship with the husband comprising relatively short periods of time with him, but at a frequency of at least once per week.

9. The husband argues that given the allegations of family violence that were then relied upon by the wife, the orders can be taken as representing an agreed position that the children’s interests would be served by maintaining a relationship with the husband.

10. Whilst it is a primary consideration that there is a benefit to a child having a meaningful relationship with both of the child’s parents, that needs to be tempered by the need to protect the child from physical or psychological harm or being subjected to, or exposed to abuse, neglect or family violence.

11. I am obliged to give greater weight to the considerations set out in s 60CC(2)(b) of the Act. It is not the husband’s position that the children should not remain in the primary care of the wife, even though he asserts that they are at risk of psychological and emotional harm arising from his view that the wife is deliberately attempting to disrupt his relationship with the children.

12. Information against the husband comprising seven minor indictable charges of assault was filed in the Magistrates Court of South Australia in 2020. 

13. Counts 1 to 6 allege that between 31 December 2017 and 1 January 2019 the husband assaulted the wife in contravention of s 20(3) of the Criminal Law Consolidation Act 1935 (SA).

14. Count 7 alleges that the husband assaulted the wife between 31 December 2018 and 1 January 2020.

15. The particulars of the charges are as follows:-

    a)Count 1 - In 2018 at F Town the husband verbally abused the wife by threatening her.

    b)Count 2 – In 2018 at Suburb G the husband kicked and pushed the wife. (no injuries were sustained by the wife).

    c)Count 3 – In 2018 at Suburb G the husband grabbed the wife by the throat and spat in her face (no injuries were sustained by the wife).

    d)Count 4 – In 2018 at Suburb G the husband grabbed the throat of the wife and hit her with a baton on the legs (no injuries were sustained by the wife).

    e)Count 5 – In 2018 at Suburb G the husband grabbed the throat of the wife and threatened to hit her with a bag of potatoes (no injuries were sustained by the wife).

    f)Count 6 – In 2018/2019 the husband kicked the wife (no injuries were sustained by the wife).

    g)Count 7 – In 2018/2019 the husband kicked the wife (no injuries were sustained by the wife).

16. The wife attended on the police on 2 March 2020 to report historical domestic violence matters.

17. A summary of the wife’s affidavit to the police, dated 2 March 2020, is that following the birth of the children in 2017 the wife contends that the husband’s behaviour became aggressive and violent.

18. The wife is not able to remember the exact dates on which she contends she was the subject of assault but that they occurred in 2018 and into 2019.

19. On an occasion in 2018 the wife alleges that the husband raised his voice towards her and said “I just want to kill you.  I want to get a knife and slit your throat”.[2]

    [2] Affidavit of the husband filed 20 May 2015, Annexure “R04” at 48 [6].

20. The wife concedes that he did not have a knife but that his words and demeanour created fear.

21. The wife also recalls there were at least three occasions in 2018 when the husband appeared to lose his temper and grabbed her around the throat.  She does not contend that the husband attempted to choke or strangle her but rather, pushed her up against the wall with force and a hand across her throat.

22. The wife recalls an occasion when the husband pinned her down on the bed and raised a metal baton above his head.  She considered he was threatening to hit her.  He hit her on the legs but concedes it was without significant force.  She was also threatened in 2018 with the husband brandishing a bag of potatoes.

23. The wife was not seriously injured as a result of any of the assaults but her primary concern was that she considered the husband’s aggressive conduct may escalate.

24. Her position at the time was that she wanted an intervention order put in place but did not wish to pursue formal complaints.

25. Presumably the wife’s position has altered.

26. The interim intervention order issued on 2 March 2020 provides for the wife and the children to be protected persons. Whilst the husband must not assault, threaten, harass or intimidate the wife and the children, nor attempt to contact or communicate with them, contact is permitted in accordance with an order made pursuant to the Act.

27. For his part, the husband denies all charges laid against him and indicates that he intends to oppose the intervention order next before the Magistrates Court of South Australia in 2020.

1. He contends that the allegations made by the wife are false and should be seen as part of a continuing course of conduct intended to keep the children from having a relationship with him.

2. The husband does not deny that there were numerous police attendances at their home during 2018, but he considers that this was as a result of the wife contacting the police in respect of any disagreement.  To date the husband has not been interviewed by the police and by detailed reference to the police incident reports annexed to the husband’s affidavit filed 20 May 2020, his counsel highlights numerous inconsistencies in the incident reports and in particular references purportedly made by the police that are not consistent with an assault and may even provide some support for the husband’s contention that the wife has behaved aggressively to him.

3. The issue is exemplified by the following extract from a police incident report following a police attendance in July 2018:-

   Attended home address of wife after claims she had CCTV footage of an “assault” that patrols had attended earlier on … /07/2018.

   Police viewed footage and observed male taking child to car as previously stated by himself to patrols, on walking around to driver’s side, female attempted to remove child by opening door and attempting to take child out.  Male can be seen exiting driver’s side door and pushing female away, and closing door again.  This behaviour continued for a minute with the female continuously trying to remove the child whilst her partner was reversing.

   Footage shows male exit vehicle and take hold of female’s arm and push her away from vehicle, who continues to push against him, male uses his leg to kick away female, to police this looks like trying to create distance between the pair rather than an actual assault.

   This explained to female who said that the male then tried to run her over.  Footage shows female standing in front of vehicle and male reversing slowly trying to exit property whilst female opens rear passenger door and again attempts to remove child.[3]

   [3] Affidavit of the husband filed 20 May 2020, Annexure “R06” at 84.

4. I am not able to determine the veracity of the wife’s allegations that the husband has perpetrated family violence, nor his trenchant denials of same.

5. At present I consider that the Court should adopt a cautious approach.  The children need to be protected from the ongoing conflict between the parties.

6. It is clear from the annexures to the wife’s affidavit filed 29 May 2020 that the husband accepts that at times his conduct may well have been aggressive and of concern to the wife.

7. The husband does not consider that his time with the children needs to be supervised, however, if required he provides affidavits from Ms B, Ms C and Mr D, all of whom have a connection with the parties and the children and have indicated a preparedness to supervise the husband’s time.

8. The parenting proceedings are also interrelated with complex financial issues between the parties.

9. As was raised with counsel, the concern is that the complexity of the overall dispute is likely to result in the Court not being able to hear and determine the substantive issues for a considerable period of time.

10. Taken at its highest, I do not consider that the wife has established that the children should spend no time with the husband or that it is in their interests to not have a relationship with him.

11. As considered, the wife’s position as at September 2018 was to acknowledge that the children should spend regular time with the husband and by implication as being in their best interests.  It is a fair observation that the majority of the allegations made by the wife pre-date the orders of 27 September 2018 and the subsequent date of reconciliation.

12. The husband seeks that the children spend time with him each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday and in the intervening week from 5.00 pm Wednesday to 5.00 pm Thursday.

Parental responsibility

1. The parties are not agreed as to the parental responsibility for the children pending final determination.  The wife seeks that she have sole parental responsibility, whereas the husband considers that the interests of the children are best served by an order for equal shared parental responsibility.

2. A determination as to parental responsibility on an interim basis only is informed by consideration of the factors pursuant to s 60CC(2) and (3) as are relevant to the proceedings.

3. The parties have not addressed the issue of parental responsibility.  It is assumed that the wife’s position is that given the history of the matter and the current pending criminal charges it would not be possible for the parties to communicate at a civil level consistent with the children’s best interests.

4. For his part, the husband contends that he was actively engaged in the parenting of the children during the period that the parties were together and he denies that there is any veracity to the wife’s allegations of family violence.

5. Neither party presents evidence of any difficulty that has occurred or may occur involving the day to day and long term issues that will affect the children pending a final hearing.

6. There is no impediment to communication between the parties where it is necessary to promote the children’s interests and to provide for their care.

7. Significant opportunity exists to the parties to communicate via social media or other non-personal interaction.  The parties have solicitors and whilst it is not ideal it is possible for the parties to communicate with each other about significant issues that affect the children.

8. Neither party has provided the evidence as to any imminent medical or other pending circumstance affecting the children and in those circumstances the Court is not in a position to make any order as to parental responsibility.

Conclusion

1. In circumstances where I am not able to make a determination as to the extent to which the wife’s allegations of family violence would impact upon the time the children should spend with their father it is reasonable that in the interim, his time be supervised.  I propose to order that the children will spend time with the husband each alternate Saturday and each intervening Sunday from 10.00 am to 5.00 pm subject to supervision by the husband’s proposed supervisors or each of them.

2. The Court needs to gauge the nature of the relationship between the children and the husband and to that end I would be assisted by the preparation of a family assessment report prepared pursuant to s 62G(2) of the Act, with the proceedings to be adjourned to a date after its preparation.

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

I certify that the preceding eighty six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 8 July 2020.

Associate: 

Date:  8 July 2020