FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pacelli & Civita [2023] FedCFamC2F 1703
File number(s): HBC 919 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 14 December 2023 Catchwords: FAMILY LAW – parenting – interim application for recovery orders – whether recovery orders are in the best interests of the child – with whom a child lives – where the mother withheld the child – issues of mental health and family violence – orders made that child live with father Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC, 62B, 65DA(2), 67U, 68B, 68C, 68L(2), 68Q, 69ZW Cases cited: Pickett & Maxwell [2022] FedCFamC2F 611 Division: Division 2 General Federal Law Number of paragraphs: 25 Date of hearing: 13 December 2023 Place: Hobart Solicitor for the Applicant: Ms T McConnon Solicitor for the Respondent: Ms S Dalwood ORDERS
HBC 919 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PACELLI
Applicant
AND: MS CIVITA
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1.Ms Civita (“the Mother”) return X (DOB 2016) (“X”) to the care of Mr Pacelli (“the Father”).
2.For the purpose of giving effect to Order 1 of these Orders, the Mother to deliver child to Court Child Expert Division of the City D Registry of the Court at 2:00pm on 15 December 2023.
3.For the purpose of giving effect to Order 1 of these Orders, the Father arrive at the Court Child Expert Division of the City D Registry of the Court on 15 December 2023 no earlier than 2:30pm for the purposes of collecting X.
4.Pursuant to s 67U of the Family Law Act 1975 (Cth), a recovery order be prepared and remain on the Court file, and in the event the Mother fails to return X to the Court at the time referred to in Order 1 of these Orders, the recovery order be issued and authorise or direct the Marshall, all officers of the Australian Federal Police and all officers of the State and Territory Police forces, with such assistance as they require and if necessary by force, to find and recover X and deliver X to the Father's address at B Street, Town C in Tasmania.
5.Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), X be independently represented, and it is requested that Tasmania Legal Aid make arrangements as soon as practicable to secure such representation.
6.As soon as practicable upon appointment Tasmania Legal Aid or otherwise, the Independent Children's Lawyer file a Notice of Address for Service.
7.Within 48 hours of notification of the appointment of the Independent Children's Lawyer, each party provide to the Independent Children's Lawyer copies of all relevant documents relied upon by that party.
8.The Directions Hearing before a Judicial Registrar on 5 March 2024 is vacated.
9.These proceedings are adjourned to 23 February 2024 at 9:30am for case management.
10.Leave is granted to the Mother to cause a subpoena…
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- Pacelli & Civita [2023] FedCFamC2F 1703
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- [2023] FedCFamC2F 1703
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CaseChat Overview and Summary
The primary legal issues before the court were whether recovery orders should be issued under section 67U of the Family Law Act 1975 (Cth) to ensure X’s return to the father, and if so, whether it was in the child’s best interests for X to live with the father, considering the allegations of family violence and mental health issues. The court also had to reconcile the interim family violence order with the proposed parenting orders.
Judge Taglieri found that issuing recovery orders was necessary to ensure X’s return to the father, as the mother had withheld the child. The court determined that X should live with the father and that supervised visits with the mother were in the child’s best interests. The court held that the proposed parenting orders did not subject X or any party to an unacceptable risk of harm. Furthermore, the court concluded that the parenting orders did not conflict with the interim family violence order, as the latter was invalid to the extent of the inconsistency, pursuant to section 68Q of the Family Law Act 1975 (Cth). The court was satisfied that the orders did not place X or any party at risk and that they facilitated necessary communication and changeovers for the child’s parenting.
Orders
Orders of the court
HBC 919 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR PACELLI
Applicant
AND:
MS CIVITA
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1. Ms Civita (“the Mother”) return X (DOB 2016) (“X”) to the care of Mr Pacelli (“the Father”).
2. For the purpose of giving effect to Order 1 of these Orders, the Mother to deliver child to Court Child Expert Division of the City D Registry of the Court at 2:00pm on 15 December 2023.
3. For the purpose of giving effect to Order 1 of these Orders, the Father arrive at the Court Child Expert Division of the City D Registry of the Court on 15 December 2023 no earlier than 2:30pm for the purposes of collecting X.
4. Pursuant to s 67U of the Family Law Act 1975 (Cth), a recovery order be prepared and remain on the Court file, and in the event the Mother fails to return X to the Court at the time referred to in Order 1 of these Orders, the recovery order be issued and authorise or direct the Marshall, all officers of the Australian Federal Police and all officers of the State and Territory Police forces, with such assistance as they require and if necessary by force, to find and recover X and deliver X to the Father's address at B Street, Town C in Tasmania.
5. Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), X be independently represented, and it is requested that Tasmania Legal Aid make arrangements as soon as practicable to secure such representation.
6. As soon as practicable upon appointment Tasmania Legal Aid or otherwise, the Independent Children's Lawyer file a Notice of Address for Service.
7. Within 48 hours of notification of the appointment of the Independent Children's Lawyer, each party provide to the Independent Children's Lawyer copies of all relevant documents relied upon by that party.
8. The Directions Hearing before a Judicial Registrar on 5 March 2024 is vacated.
9. These proceedings are adjourned to 23 February 2024 at 9:30am for case management.
10. Leave is granted to the Mother to cause a subpoena to issue to Tasmania Police seeking:
(a) Records, reports, and complaints relating to FVMS Report … concerning events in late 2023; and
(b) All documents relating to police investigations and interviews concerning an allegation of physical assault of X by the Father or his partner in or around 2023.
UNTIL FURTHER ORDER
11. X live with the Father.
12. X spend time with the Mother supervised by a suitable and agreed adult for a period of 3 hours each week and, if a suitable person cannot be agreed or that person does not give an Undertaking to the Court, the Mother's time with X will be supervised and at the D Children's Contact Service at dates and times that can be facilitated by that service.
13. By 20 December 2023, both parties are to contact the D Children's Contact Service for the purpose of undertaking the intake process to enable to Mother's supervised time pursuant to Order 12 of these Orders to occur at that service, if required.
14. The Parties have liberty to apply to Chambers by email, copied to the other party, in relation to Orders concerning the Mother's time with X.
15. The Mother may communicate by telephone with X twice a week between 6:00pm and 7:00pm for a period of no less than 15 minutes, and for that purpose:
(a) Such communication is to be facilitated by the Mother initiating a call to the Father's mobile number;
(b) The Father will ensure that his phone is charged and that the call is taken;
(c) The Father will afford privacy to X and Mother during the calls; and
(d) The Mother must notify Father at least 24 hours in advance of her intention to exercise telephone communication with the X pursuant this Order.
16. The parties are to communicate by way of SMS text message or otherwise as agreed in writing, and such communication is to be solely in respect of X, and must be polite and respectful.
17. Each party is to notify the other as soon as practicable of any hospitalisation or serious injury or illness suffered by X whilst in their respective care.
Hair follicle testing
18. Within twenty-eight (28) days of the date of these Orders, the Mother must make an appointment with The Drug Detection Agency (“TDDA”) to submit herself for hair testing to occur and provide such hair samples as directed by TDDA for the purposes of obtaining a drug screen using TDDAs:
(a) Standard 5-panel hair drug test; and
(b) Covering a 6-month period.
19. For the purposes of Order 18 of these Orders:
(a) The Mother is restrained from taking any steps to interfere with the provision of hair samples or to interfere with the test results and to that end is restrained from cutting or colouring her hair; and
(b) The Mother will direct and authorise TDDA to provide directly to the Father's solicitor copies of all test results forthwith upon those results becoming available.
20. Subject to Legal Aid funding, within twenty-eight (28) days of the date of this Order, the Father must make an appointment with TDDA to submit himself for hair testing to occur and provide such hair samples as directed by TDDA for the purposes of obtaining a drug screen using TDDAs:
(a) Standard 5-panel hair drug test; and
(b) Covering a 6-month period.
21. For the purposes of Order 20 of these Orders:
(a) The Father is restrained from taking any steps to interfere with the provision of hair samples or to interfere with the test results and to that end is restrained from cutting or colouring his hair; and
(b) The Father will direct and authorise TDDA to provide directly to the Father's solicitor copies of all test results forthwith upon those results becoming available.
Restraints
22. Pursuant to s 68B of the Family Law Act 1975 (Cth), for the personal protection of X and the parents, each parent is hereby restrained from:
(a) Abusing, belittling, harassing, or threatening the other parent or X;
(b) Assaulting or damaging the personal property of the other parent or X;
(c) Denigrating the other parent or a member of the other parent's family to, or in the presence or hearing of, X or allowing third parties to do so;
(d) Exposing X to parental conflict or family violence as defined by s 4AB of the Family Law Act 1975 (Cth);
(e) Consuming alcohol to excess while X is in their respective care or exposing X to third parties reasonably suspected to have consumed alcohol to excess;
(f) Consuming illicit substances or abusing prescription medication while X is in their respective care or exposing X to third parties reasonably suspected to be under the influence of illicit substances.
AND THE COURT NOTES THAT:
A. Orders 3, 11, 15, 16 and 17 above are inconsistent with an Interim Family Violence Order made in Court at City D in late 2023 in that they provide for:
(a) X to live with the Father and spend time with the Mother;
(b) The parties to communicate directly or indirectly for the purposes of making parenting arrangements and complying with these Orders.
B. The Interim Family Violence Order prohibits the Father from coming within 50m of the Mother and stalking X and communicating directly or indirectly with the Mother except through a third party.
C. Pursuant to s 68Q of the Family Law Act 1975 (Cth), to the extent of the inconsistency, the Interim Family Violence Order is invalid.
D. The Court is satisfied the parenting orders are in the best interest of the X given the relative risks of harm likely or possible in each of the parent's care and the desirability of communicating and changeovers for parenting of X.
E. The Court is satisfied that the orders do not subject the child or any party to any unacceptable risk of harm.
F. Pursuant to s 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if he/she holds reasonable belief that the order for personal protection in Order 22 has been breached.
G. Pursuant to s 65DA(2) and s 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 are set out in Attachment A and these particulars are included in these orders.
H. A copy of this Order will be provided by Chambers to the Court Child Expert Division of the Court.
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.
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