Oliveri & Oliveri
[2023] FedCFamC1F 517
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Oliveri & Oliveri [2023] FedCFamC1F 517
File number(s): ADC 2966 of 2018 Judgment of: BERMAN J Date of judgment: 27 June 2023 Catchwords: FAMILY LAW – CHILDREN – Supervised time – Where the parties agree to final Consent Orders save as to the father’s proposed supervisor – Where the role of a supervisor is potentially onerous and to ensure no harm comes to the children – Consideration of whether the father’s proposed supervisor would be suitable and capable – Where the Court is not satisfied that the proposed supervisor fully understands the onerous nature of the obligation that is imposed upon a supervisor – Where the proposed supervisor would allow more latitude to the father than might be considered in the children’s best interests – No Order made. Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 23 June 2023 Place: Adelaide Counsel for the Applicant: Ms Lewis Solicitor for the Applicant: Jacqui Ion Lawyers Pty Ltd Counsel for the Respondent: Mr Anderson Solicitor for the Respondent: Resolve Divorce Lawyers ORDERS
ADC 2966 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR OLIVERI
Applicant
AND: MS OLIVERI
Respondent
order made by:
BERMAN J
DATE OF ORDER:
27 June 2023
BY CONSENT THE COURT ORDERS THAT:
1.The father is at liberty to arrange separate parent teacher interviews with the children’s school or educational institution to which the children attend and to attend events to which parents would ordinarily be invited such as sports days, presentation events and the like.
2.All outstanding Applications in a Proceeding be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Oliveri (“the father”) and Ms Oliveri (“the mother”), by Consent Orders made 8 June 2023 (“the Consent Orders”), have agreed final parenting orders in respect of X and Y both born 2017 (collectively referred to as “the children”) save as to whether Mr JJ can be included as one of the nominated persons named in order 5 of the Consent Order to supervise the children’s time with the father and the extent to which the father could engage with the children’s school.
The two issues were adjourned to 23 June 2023 for Mr JJ to be called to give evidence and for the father to adduce further evidence as to the extent to which he should be able to engage and involve himself with the children’s school.
During the period of the adjournment, the parties reached agreement that the father would not challenge the continuation of order 19 of the Orders made 22 September 2021.
In addition, the parties agreed that Ms KK could be included in the list of nominated supervisors at order 5 of the Consent Orders.
Accordingly, the only matter that requires determination is whether Mr JJ should also be included in the list of nominated supervisors.
The Consent Orders made 8 June 2023 provide that for a period of four weeks, the children spend time with the father from 10.00 am until 2.00 pm on Sunday, commencing 11 June 2023, and each alternate Sunday thereafter and from 10.00 am until 2.00 pm on Saturday, commencing 17 June 2023 and each alternate Saturday thereafter.
As and from 9 July 2023, the children will spend supervised time with the father as follows:
4.3.1From 10.00 am until 5.00 pm on Sunday commencing 9 July 2023 and each alternate Sunday thereafter; and
4.3.2From 10.00 am until 5.00 pm on Saturday commencing 15 July 2023 and each alternate Saturday thereafter.
As and from the commencement of Term 4 of 2023, the children’s time with the father will continue without the need for supervision.
Accordingly, the period that supervision is required is limited to about three calendar months noting that the fourth term will commence on or about 2 October 2023.
The Consent Orders provide for the father to be able to notify the mother if he is unable to secure a supervisor and time is not able to take place as ordered.
The father’s application for Mr JJ to be appointed as one of the nominated supervisors is supported by the father’s affidavit of 16 June 2023.
The need for additional supervisors arises because the father contends that the circumstances of each of the listed supervisors have changed significantly since the original orders were made on 22 September 2021.
Mr LL, who was included in the list of supervisors, now does not consider that it would be appropriate for him to remain as a supervisor and as such, he is no longer available.
Ms B is unable to supervise because of her pregnancy.
Mr C has indicated he has no capacity to continue in the role of supervisor.
Mr D also seeks that he no longer be considered as a supervisor and Mr MM remains available but not reliably so taking into account his work conditions.
Ms NN will travel overseas as and from late August 2023 and whilst unavailable thereafter, she is likely to still be available until her date of departure.
For her part, the mother does not accept that four of the five nominated supervisors are unable to supervise the father’s time with the children.
For various reasons, as set out in paragraph 7 of the mother’s affidavit of 22 June 2023, the mother does not accept the purported unavailability of the supervisors other than Mr LL.
In particular, the mother states that as recently as 17 June 2023, she had a discussion with Ms NN as to her overseas travel plans and was advised that she was traveling as and from October 2023.
MR JJ
Mr JJ affirmed an affidavit on 7 June 2023 which advised that he was a friend of the father, was the father’s best man at his wedding and has known the father for 30 years and the mother for at least 10 years.
Annexed to Mr JJ’s affidavit is a brochure published by the Legal Services Commission entitled “Should I Supervise Contact?” and he contends that he has read a copy of the Orders made 29 March 2023, the Legal Services Commission brochure, a copy of the final Orders made 22 September 2021 and as a result, he both understands his role and responsibilities as a supervisor and his obligation to comply with his duties as a supervisor namely, that if any difficulties arise, he will make appropriate arrangements for the children to be returned to the mother.
In evidence, and whilst quietly spoken, Mr JJ did not impress as having a clear understanding of his role as a supervisor.
Mr JJ was clearly a close friend of the father and as such, his evidence was equivocal and uncertain as to what he would do should the children be anxious, upset and distressed to a level that would indicate intervention was required and the mother to be advised.
It is a difficult consideration given that I accept Mr JJ is well meaning and gave no indication that he would turn a blind eye if the children were placed at significant risk. However, the role of a supervisor is potentially onerous and whilst it is not expected that he would intervene in order to facilitate the children’s relationship with the father, his role is to ensure that no harm comes to the children.
I was not confident that Mr JJ would react with appropriate speed in contacting the mother as opposed to allowing more latitude to the father than might be considered in the children’s best interests.
CONCLUSION
The parties acknowledge by the Consent Orders made, that the children’s best interests are served by them maintaining an ongoing relationship with the father. I bring to account the favourable observations of the Mr L, a professional supervisor, that highlighted the children’s close attachment to the father and their close emotional involvement with him. The tenor of the Consent Orders was to support the relationship and therefore, a cautious approach needs to be adopted to ensure that an appropriate balance is struck. The need for the children to spend meaningful time with the father must be tempered by the requirement that it be safe to do so.
I am not satisfied that Mr JJ fully understands the onerous nature of the obligation that is imposed upon a supervisor.
Given that the parties have agreed the addition of Ms KK, I do not propose to include Mr JJ as one of the nominated supervisors.
I will also make Orders, as agreed between the parties, to set out the extent to which the father can involve and engage himself with the children’s school.
I make orders as appear at the commencement of these reasons.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 27 June 2023
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