Oscini and Campotelli

[2016] FamCA 832

FAMILY COURT OF AUSTRALIA

OSCINI & CAMPOTELLI [2016] FamCA 832

FAMILY LAW – CHILDREN – where the father asks for increased supervised time.

APPLICANT: Mr Oscini

RESPONDENT: Ms Campotelli

FILE NUMBER: SYC 5995 of 2015

DATE DELIVERED: 30 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 28 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Longworth

SOLICITOR FOR THE APPLICANT: Armstrong Legal

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITOR FOR THE RESPONDENT: Watts McCray

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the children B born … 2012 and C born … 2014 (“the children”) live with the mother.

2. That the children spend time with the father on two occasions each week for three hours on each occasion between 9am and 12 noon on Tuesday and Friday.

3. That the father’s time with the children be supervised by D Centre.

4. That the mother shall deliver the children to D Centre at the commencement of the time and collect the children from D Centre at the conclusion of the time.

5. That, subject to the agreement of the supervisor, the time with the children, supervised by D Centre, can occur at a place other than the offices of D Centre.

6. That the father spend time with the children, supervised by D Centre, on Christmas Eve and on Fathers’ Day, between 9am and 12 noon.

7. That on C’s birthday, B’s birthday and on the father’s birthday the father spend time with the children, supervised by D Centre, in lieu of one of the weekly visits referred to in order 2 herein.

8. That, subject to the consent of the supervisor, the father may allow the paternal grandparents to attend at any supervised visit.

9. That the costs of the supervised visits within the D Centre and the preparation of a report in relation to each visit be paid from the parties’ joint offset account. In the event that additional charges are imposed by D Centre for visits which are outside the D Centre, or on weekends, or public holidays, then those costs shall be borne by the father.

10. That upon request of the mother’s solicitor, which requests shall be made on no more than two occasions in each consecutive period of four weeks, the father submit to urinalysis (under supervision and chain of custody) such urinalysis to be conducted within 24 hours of such request in accordance with the Australian/New Zealand standard 4308:2008: procedures for specimen collection and the detection and quantitation of drugs of abuse in urine.

11. That the costs of the urinalysis testing pursuant to order 10 above, be met from the funds held in the parties’ joint offset account. Such costs are to be initially paid by the father and reimbursed to him within seven days of his solicitor providing a copy of the receipt and proof of payment in respect of each test.

12. That in the event that the mother requests the father to undergo testing in accordance with order 10 above, on a Friday, the mother is to notify the father of a suitable pathology in Sydney that is open with the 24 hour period covered by her request.

13. That the mother is to advise the father as soon as reasonably practicable and at least within 24 hours of:

    (a)       Any significant illness, accident or injury suffered by either child while in the her care;

    (b)       Any significant dental or mental treatment provided to either child; and

    (c)       Any medication either child is taking whilst in his care, including the relevant dosage.

14. That each of the parties keep the other informed of their contact details including a mobile telephone number and email address.

15. That, without admissions, each parent is restrained from denigrating the other parent in the presence or hearing of the children and each parent shall use his or her best endeavours to ensure that third parties do not denigrate the other parent in the presence or hearing of the children.

16. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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.

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 Oscini & Campotelli 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 SYDNEY

FILE NUMBER: SYC 5995  of 2015

Mr Oscini

Applicant

And

Ms Campotelli

Respondent

REASONS FOR JUDGMENT

1. Mr Oscini (“the father”) and Ms Campotelli (“the mother”) are the parents of two children, B, born in 2012, who is currently four years old and C, born in 2014, who is almost two years old (“the children”).

2. The parents married in 2010 and separated on 19 August 2015.

3. On 11 November 2015, the parents entered into parenting orders by consent which provided for the father to spend supervised time with the children for three hours each week at D Centre, a privately supervised contact centre. Generally the father has spent time with the children in accordance with those orders on Fridays between 9am and 12 noon.

4. The parents have met the costs of supervised contact from joint funds being their offset account, pursuant to interim property orders made on 22 December 2015.

5. The father brought an application to increase the time which he spends with the children to add a further period of supervised time each week. That application was heard by Senior Registrar Campbell on 28 July 2016 and dismissed.

6. The father sought a review of the orders of the Senior Registrar and therefore the matter comes before the Court by way of hearing de novo in relation to the father’s application to increase time with the children. That application is opposed by the mother but it is the mother’s position that in the event that the Court determines that it is appropriate to increase the time the children spend with their father then the visits should take place between 9am and 12 noon each Tuesday and Friday.

7. There are a number of ancillary issues which will be dealt with separately.

8. The proceedings are interim proceedings. They are conducted without cross-examination and without the opportunity for evidence to be tested. The allegations made, particularly by the mother, as to the father’s conduct both before separation and after separation have not been tested. Nevertheless they cannot be ignored.

BACKGROUND

1. The mother raised concerns about the father’s behaviour towards the children in the six to 12 months leading up to separation. It is not necessary to detail all of the mother’s concerns except to say that she alleges that he had little patience with the children and avoided spending time with them. The mother alleges that on one occasion, the father threatened to throw C out the window if he didn’t stop crying. On another occasion, she alleges, the father locked himself in the bedroom with B and refused to let her out. The mother alleges that the father frequently drove at excessive speeds with the children in the car.

2. After the parties separated their relationship deteriorated markedly. The mother alleges that on 16 August 2015, she went to the former matrimonial home with her mother and the father began screaming at her. The police were called. The mother deposed that she tried to retrieve her hard drive which contained photographs of the children from the father’s car which was parked in the carport and the father said to her “If you touch my car, I will slam you onto the cement”. When the mother said she wanted the photos, the father said “Too bad, you’re never going to get them”.

3. The mother discovered that an Apprehended Domestic Violence Order (“ADVO”) had been taken out against the father by a person, Ms M, with whom he had a sexual relationship before the parties separated. The mother deposed that the father said to her that he had slept with Ms M and had taken drugs on the night of their work Christmas party. The mother was not aware of the relationship.

4. The mother deposed that on 3 September 2015, she received a telephone call from the father, who told her that he was in trouble. The father told the mother that there was an old Iphone in the house that someone wanted. The father said he had been keeping the mobile phone safe because there was “something on the phone”. The mother told the father that she didn’t have the Iphone and asked him if the person who was interested was the same person who had sold him drugs. The father replied to the mother “No, that was a Lebbo guy. I’m going to be killed if I don’t have the Iphone by this afternoon”. The father later telephoned the mother and said to her words to the effect of “The people will come and get you and hurt you if you if you don’t hand the phone back in. They’ll come looking for you, and the children are in danger…” The mother deposed that she was shocked and very concerned for the safety of herself and the children.

5. The mother deposed that the father called her back later in the day and said to her words to the effect of “It’s too late now, I’m sending your details off to the guy who wants the phone back and you, your family, and all the kids are in danger. It’s not my problem anymore.” The father then said “I’ve already lost everything, they can come after me, I don’t care”. The mother suggested that the father go to the police. About half an hour later the mother received a text message from the father which read:

   I tried to keep you out of this. They just want their shit and they’ll be gone. You don’t realise what these people are capable of. You think you know everything and you can outsmart them by saying you don’t have what they want but they don’t care!!!! They have your details now so I just hope you get some sense into you before it’s too late. Good luck.

6. A copy of the text message was annexed to the mother’s affidavit.

7. The mother attended Suburb E Police Station and made a formal compliant in relation to the father’s threats against her and the children.

8. On 9 September 2015, a final ADVO was made for the protection of the mother against the father for a period of two years. The father was enjoined from entering the premises at which the mother worked or lived.

9. On 14 September 2015, the father was observed by the police sleeping in his car outside the home of the mother’s parents.

10. On 21 September 2015, the father was charged with intimidation.

11. On 23 September 2015, the ADVO was varied to prevent the father approaching the mother’s parent’s home.

12. On 11 November 2015, interim orders were made by consent for the father to have three hours supervised time with the children.

13. On 20 November 2015, the mother caused her solicitors to write a letter to the father requesting that he not attend B’s dancing lessons. Despite her request the father continued to attend the dancing lessons.

14. On 22 December 2015, orders were made allowing the mother and the children to reside in the former matrimonial home. She moved into the home on 12 January 2016.

15. On 25 January 2016, the father pleaded guilty to the charge of intimidation and was placed on a good behaviour bond for 12 months.

16. In May 2016, the father sent a text message to the mother with a picture of a motorbike. The message read “Can you show [B] this and ask her if she wants one please?”

17. On 8 May 2016, the father sent a further text message which read:

    I forgot to tell you. [B] told me that you told her that bike I wanted to get her was a toy. It’s a real bike! It’s bigger than it looks. It goes 100 kmh. She needs to wear a helmet like mine and leathers. I tried telling her it was real and she said mummy said it was a toy baba. It’s not like my little electric one. I want to go to the racetrack with her and teach her to ride.

18. B was three years old.

19. The father sent a further text message asking the mother to bring B to try on a helmet because he didn’t want to waste money on the bike if B did not like wearing the helmet. The mother responded to the father by text message saying that she was uncomfortable with the notion of B riding a motorbike at the age of three. The mother said B was too little and the motorbike was not safe.

20. The father responded with a message to the effect that he would teach B how to ride the motorbike, that she loved going really fast and this was her chance. The father said “The bike will be limited at first to like 10 kmh and then increased as she gets better and then she’ll be racing side by side with baba!”

21. On 10 June 2016, the father went to his former place of employment where he encountered Ms M, the person who had taken out an ADVO against him at the time of the parties’ separation. The father spoke to Ms M and after he left, sent her an email. The father was charged with contravening the ADVO for the protection of Ms M and on 23 August 2016, he pleaded guilty to the offence and was fined $500.

22. The mother deposed that shortly after the hearing before the Senior Registrar on 28 July 2016, she received a text message from the father which read

    Today you took away my children’s voice for if they could speak they’d tell you how much they love their father. They’d tell you how much joy their father brings to then (sic). They’ll tell you how happy and safe they are with me. They’d tell you how nothing beats being cuddled up in babas (sic) arms. But you have taken all that away from them. Your selfishness No (sic) child deserves to be without a father. I hope your (sic) happy you sacrificed your children’s happiness for your own.

23. On 28 July 2016, the mother received a text message from the father’s brother Mr F which read

    you and your family claim that your (sic) good Catholics, however they (sic) way you’re all carrying on with your lies and deception the only ones suffering are those poor kids!!! I feel sorry for them. Your judgment day will come for all you and your (sic) all going to hell!!! Big guy upstairs will make ultimate judgment so you and your family can continue carrying on the way you are.

24. The mother reported the texts as a breach of the ADVO.

25. On 18 August 2016, the mother, with her parents, took the children to B’s dancing lesson at Suburb G. 

26. The father and the mother have different versions of what happened on that day.

27. The mother deposed that the father attempted to lift C out of his maternal grandmother’s arms and the maternal grandmother said to the father “[Mr Oscini] go away and leave us alone”. The maternal grandfather said to the father “[Mr Oscini] please leave us alone, you are intimidating us”. The mother deposed that the father walked up to the maternal grandfather and leaned towards him and said “What you are fucking going to do about it”. The father then leant towards her, grabbed [B] and pulled her to him. The mother gathered her belongings and said to the father “[Mr Oscini], I have to leave, give [B] back please” and the father said “She’s my fucking daughter, I’m not going to give her back”.

28. The mother deposed she then took B from the father’s arms and walked down the stairs towards the carpark. The mother deposed that at the bottom of the stairs she could hear loud voices, and she turned to observe the father facing the top of the staircase with his phone out. He was recording the maternal grandparents who were standing at the top of the staircase. The father was saying words to the effect of “Don’t push me, don’t push me”. The father walked backwards down the stairs while saying this.

29. The maternal grandmother was carrying C. The mother observed that when the father reached the bottom of the stairs he threw himself backwards on the floor and started kicking his legs. She observed the father try to kick the maternal grandmother while she was holding C. The father was saying “Stop kicking me, stop kicking me”. He then rolled over on his stomach and made groaning noises. The maternal grandparents, with C, moved around the father. A complaint was made to the police.

30. The father’s version of that event was that he attended the dance class and had a pleasant exchange with the mother and B. He deposed that the maternal grandmother swore at him saying “You don’t even fucking say hello to your son” and the mother said “Stop it and be quiet”. The father deposed that he walked across the room to say hello to C but the maternal grandmother picked him up. C started crying and the father motioned to comfort him. The maternal grandmother moved back with C and yelled “Call the police”. The maternal grandmother then took her phone out and the father was under the impression that she was telephoning the police. The father says he then leaned over to comfort B who was still in the mother’s arms and the maternal grandfather started yelling at him “Stop harassing us”. The father deposed that B was clearly uncomfortable with the screaming. The father says as he left the room he saw the mother walking down the stairs with B. The father says he tried to hurry down the stairs but was restricted by an old injury. He says he felt a palm on his back and fell backwards. The father says he made loud noises hoping that others at the dance school would hear and watch and that he was then kicked and he raised his legs to keep the maternal grandparents away. After the maternal grandparents left, the father called the police.

31. Whatever of that event is eventually accepted, the children were unnecessarily subjected to a very unpleasant incident.

32. When the police arrived at the dance studio, they arrested the father for breach of the ADVO.

33. As a result of the incident on 18 August 2016, the father has been charged with the offence of stalk/intimidate intending to cause fear or physical or mental harm on the maternal grandfather. He has also been charged with contravening the ADVO in relation to the mother. Those matters were before the court on 14 September 2016. The father entered a plea of not guilty and the matter has been listed for hearing in March 2017.

34. On 18 August 2016, the mother’s solicitors wrote to the father, complaining about his behaviour at the dance school.

35. The father responded on the same day, stating, inter alia “Your clients absurd allegations have become an absolute joke. I am unaware of any police investigations nor I am aware of any incident that took place at [C’s] dancing lesson.”

36. On 23 August 2016, the father was convicted of a charge of stalking / intimidating the mother as a result of the telephone call on 3 September 2016 and was fined $500.

THE FAMILY CONSULTANT’S REPORT

1. The family participated in a Child Responsive Conference in April 2016, and the Family Consultant, Ms H, produced a memorandum dated 26 April 2016.

2. The Family Consultant observed the children with their father. She reports:

   [The mother] settled the children in child care without any difficulty. Immediately [the mother] left however, [C] cried and became distressed going to the door through sobbing and calling ‘Mumma, Mumma’. The writer was unable to distract or settle him and therefore returned him to [the mother]. He seemed to settle immediately on his return to her. [C’s] behaviour is within normal bounds, particularly for a child who does not attend child care and is primarily with his mother.

   [B] seemed unperturbed by [C’s] behaviour and sat playing at the doll’s house. She confidently informed the writer that her father was also here (at the Court), saying that she had seen him. [B] appeared relaxed, her play was confident and revolved around who lived in the doll’s house and their relationship to each other. She said that her father no longer lives with her, ‘He lives somewhere else’. When told that her father would be joining her and [C] in child care, [B] excitedly accompanied the writer to collect her father. She ran to [the father] and jumped onto his lap, cuddling him. She chatted to him about what she played with and explained that ‘there are lots of toys’.

   [B] wanted to commence playing with her father, prior to [C] being included in the observation, but [the father] said that [C] should join them first. [The father’s] greeting of [C] was appropriate, but [C] became distressed, crying and calling for his mother as soon as he could no longer see her. [The father] endeavoured to settle [C] by picking him up and trying to distract him. [C] settled after approximately eight to 10 minutes. He remained settled, made good eye contact with [the father] and smiled at him. Despite his earlier distress [C] appeared, when not seeking his mother, to be relaxed and maintained close physical proximity to his father. Over the period of the observation [C] managed to settle for periods of between eight to 10 minutes before again crying, sobbing and pointing to the door. [The father] responded appropriately to [C] assuring him that his mother would return ‘shortly’. Towards the end of the observation [C] became involved in play with his father and sister and continued to maintain close physical proximity to [the father].

   When [the father] left the child care [C] became distressed but was settled by his mother when she came into the room.

1. The Family Consultant reported:

   [The father] returned to child care to say good-bye to the children following their observation with [the mother]. [C’s] response to his mother leaving was again one of distress but as his father entered the room (almost simultaneously with [the mother] leaving), [C] held up his arms for his father to pick him up. On this occasion [C] settled almost immediately, although within a few minutes he again became distressed, cried and called for his mother.

2. In her evaluation the Family Consultant reported:

   ([B]) seems to have a close and affectionate bond with her father. [C’s] behaviour seems consistent with a child whose primary attachment is to his mother. His bond to his father seems to still be in the very early stages of developing. Consideration of [C’s] time with his father increasing may need to be considered very carefully.

   At this stage the children would be likely to benefit from being able to spend time with [the father] on several occasions each week and perhaps for a shorter period. [C], because of his developmental stage, is likely to benefit from there being less time between each contact with his father. [The father] has some understanding of [C’s] emotional needs and seems to agree that, because he perceives that he and [C] are still developing their bond, more frequent time with the children, perhaps for shorter periods, will be likely to be less stressful for [C].

3. The Family Consultant concluded:

   The children, particularly [C], are likely to benefit from more frequent but shorter periods of time with their father, however, until the concerns raised by [the mother] are addressed, any consideration of the children’s time with their father being unsupervised will need to be addressed cautiously.

4. The Family Consultant’s observations of the children with their father accord with the observations of the D Centre supervisors as set out in their reports of the supervised visits. They report a pleasant and unremarkable interaction between the father and the children.

THE FATHER’S APPLICATION

1. There were some aspects of the father’s application to which the mother consented. Those aspects that are in dispute will be considered serially.

One further supervised period each week

1. The father seeks one further supervised period each week with the children. Counsel for the father submitted that this would give effect to the recommendation of the Family Consultant that the visits should be more frequent, particularly having regard to C’s age and developmental state.

2. In relation to the suggestion by the Family Consultant that the visits might be shorter, the father submitted that D Centre has a minimum three hour availability.

3. The mother opposed the extra period but counsel for the mother submitted that, if it were ordered, it would be appropriate for the visits to be on Tuesday morning and Friday morning. That would accord with the father’s roster and give the children a reasonable space between visits.

4. It is not the mother’s position that the visits should cease, but rather that one visit per week is sufficient.

5. I accept the recommendations of the Family Consultant that more frequent visits would benefit C particularly. I am conscious that the children were observed by the Family Consultant to enjoy the time with their father.

6. Orders will be made for the visits to be increased to two each week.

How should the supervisor be paid?  

1. The father proposes that the supervision be paid for from the offset account. The mother proposes that the second visit should be paid for by the father.

2. There is about $68,000 in the offset account. It is used to pay the mortgage (approximately $32,000 per annum and will be the source of funds to pay for a report from a single expert (approximately $10,000). The cost of supervision is $60 per hour or $180 per visit plus $60 for the report. The costs of two visits per week would be $480 or approximately $25,000 for a year.

3. There is just sufficient money in the offset account to pay for the supervision for the next year. If the matter has not been finalised when the money has been used up, the parties will have to make other arrangements.

Time outside the D Centre

1. The father wants to take the children outside the D Centre to places where there are more interesting activities for the children. He proposes Suburb I Park, J Park or K Park. In bad weather, he proposes Suburb I Shopping Centre.

2. The mother does not agree.

3. D Centre, in late 2015 and 2016, had building work done and it was not possible for supervised visits to occur there. The mother agreed that the visits could take place at other venues. The reports of the supervisors are unremarkable and the mother does not raise any complaint about anything that happened during those visits.

4. The visits should be able to take place at other venues provided that the supervisor agrees and changeover takes place at D Centre.

5. Travelling outside D Centre incurs additional fees. Having regard to the confines of the offset account, the father should pay those additional charges.

Special days  

1. The father asks for time with the children on Christmas Eve, the birthday of each child, his birthday, Fathers’ Day and Easter Sunday. The mother agrees to Christmas Eve. She proposes that the time on the children’s birthdays be substituted for one of the two weekly visits. She opposes the balance of the application.

2. The D Centre visits can be changed with notice. The father should have a visit on each of the children’s birthdays, in substitution for one of his weekly visits.

3. The children should spend time with the father on his birthday (if this is a weekday, in substitution for one of his weekly visits), and on Fathers’ Day. The question of Easter can be considered at the final hearing.

4. The time at D Centre can be supervised on weekends and public holidays. The charges are more than the weekday charges. The father should pay the charges for supervised visits on weekends and public holidays.

Attendance of extended family

1. The father wants to be able to involve his parents, and extended family, including but not limited to his siblings and their children in the supervised visits.

2. The mother agrees to the involvement of the paternal grandparents.

3. The children are small and the visits are short. The presence of extended family, not known to the children, could be overwhelming. This matter can be reconsidered when the children’s relationship with the father is further advanced at the final hearing. 

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 30 September 2016.

Associate:

Date:  30/9/2016