Pacelli & Civita
[2023] FedCFamC2F 1703
•14 December 2023
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 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.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE TAGLIERI
This judgment concerns an application in a proceeding filed on 20 October 2023. The applicant father seeks interim parenting orders, including an order for the recovery of the child, X born in 2016 (“the child”), back into his care. He also seeks that the child live with him on an interim basis and spend supervised time with the mother. Various restraint and protective orders are also sought.
By the mother's response, she seeks dismissal of the recovery application or an adjournment of it until a child impact report is prepared and made available to the Court. Ms McConnon, who appeared for the mother, emphasised that the child's voice about very serious allegations of family violence towards her had not been heard. The allegations included that the father and his partner had physically harmed the child by throwing her around the house.
These were serious matters, and the best interests of the child were submitted to require that the child remain in the mother's care at this time. These reasons are delivered orally and in short form pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”), as the judgment concerns interim parenting orders. There was no particular dispute about the decision making pathway that the Court must follow. I have approached the task of evaluating the parties' competing proposals in the context of the considerations in s 60CC of the Act. This includes assessing the risks of harm to the child alleged by each party, considering the likelihood of harm, abuse or neglect, and identifying the severity of the impacts of any adverse events or risks likely or possible.
As the ultimate issue is whether it is in the child's best interests for her to remain residing in the mother's care or return to reside with the father, I will apply the legal principles for determining such issues according to the summary I gave in Pickett & Maxwell [2022] FedCFamC2F 611 from [40]. I will not state or repeat those principles in detail.
The factual background leading to the father's recovery application is uncontentious, and the evidence before the Court is consistent up until late 2023. It establishes the following facts:
·The parties had a brief relationship, during which the child was conceived.
·For the first few years of the child's life, she resided in the primary care of the mother, and the father had little time or contact with her. I pause to observe that the reasons for this are in dispute.
·The father spent day and overnight time with the child fortnightly while she was the subject of a care and protection order in early 2018 and later when the child was in a kinship care arrangement.
·In approximately 2019, the child returned back into the mother's full time care, and concerns were reported to Child Safety Services (“CSS”) about the child's safety and wellbeing in early 2020, June 2021, July 2021, November 2021, and throughout 2022.
·In 2022, the child was placed in the father's care due to the heightened level of concern for the mother's mental health, alleged substance abuse, homelessness and capacity to care safely for the child.
·The education department has held concerns for the child in the mother's care, particularly in 2022, but also based on historical reports. These records evidence that the child's school attendance was poor and basic needs were not always met, and that she was presenting with behavioural and emotional dysregulation while in the mother's care.
·The concerns of CSS led to the child being placed in the father's care on 24 November 2022. CSS described the placement as “full-time and permanent”. No care and protection orders were made, but the expectation was that the parents would enter into a parenting plan consistent with the father being the primary carer.
·The father enrolled the child at E School, and by March 2023, X was observed and recorded as being “200 per cent better than last year”. She is described as settled and engaging well at school with improved learning.
·No adverse events concerning the care for the child by the father and his stepmother are noted in independent records from medical providers, police, CSS or the Education Department between late 2022 and late 2023, subject to one report in mid-2023.
·After the child remained in the father's primary care, the child initially spent day time periods with the mother and then every second weekend.
That is all uncontroversial evidence supported by documentary evidence before the Court. The undisputed evidence before the Court shows, as I have stated, that she was stable and there was an improved care arrangement after coming into the father's care. Also, that there were no material concerns expressed by the mother or CSS about her being in the father's primary care. In a June 2023 report, the following statement appears:
There have been limited concerns raised for [X] in the care of [Mr Pacelli], with concerns only arising in [mid-]2023, which have related to alleged family violence in the home along with verbal and physical harm by [Mr Pacelli] and his partner. While service providers have reported their concerns in relation to [X] disclosing harm, [X]'s voice has not been independently obtained without influence from [Ms Civita].
Significantly, the stable situation that I have described changed. Based on the parties' mutual evidence, the trigger for the change was a dispute about the changeover of the child's care in late 2023, when the mother was due to spend time with the child. Although police may have been called in late 2023, no report was made about risk of harm to the child at that time. Critically, in my view, the first report by police was in late 2023, and information recorded by police reflects a different basis for the mother withholding the child to that which is now claimed. No mention is made of the child having told the mother that the father or stepmother throws the child around the house.
The information given at that time to police was that the mother thinks she can provide better care, and that the child and the mother believed that the child was fearful of the father. The mother, at that time, recorded historical allegations of family violence alleged to have been perpetrated by the father in prior relationships. The subsequent reports of alleged family violence by the father and stepmother towards the child have all emerged and been enlarged after late 2023 and the allegations, in my view, can be seen to emerge from the mother's narrative and reporting to authorities, not the “voice” of the child herself.
This view is reinforced by the content of the reports from F Hospital and Dr G, which are nonspecific about when the alleged physical harm to the child was said to have been inflicted by the father and stepmother, and I infer from the contents of their reports that neither doctor has had the benefit of the knowledge of the mother's full medical and mental health history. This is because the F Hospital record was compiled by an emergency department doctor, and Dr G only commenced seeing the mother and child in late 2023.
As the mother stated in her affidavit that a police investigation was “ongoing” about the alleged physical harm to the child, I requested further information from the Tasmania Police liaison officer during the hearing. The information received from the liaison officer during the hearing was that they had conducted an investigation and interviewed the child and the father over late 2023. As a result, they had closed the investigation, which was completed by Suburb H CIB. As a criminal investigation bureau, I infer that the officers were experienced in investigating allegations of this nature, and it is significant, in my view, that they concluded “that there is insufficient evidence to charge Mr Pacelli” and, importantly, “police have doubts about the credibility of the allegations made.”
Also of significance is that the allegations of family violence against the father were only reported to the Education Department by the mother almost two months after she raised them with CSS and the doctors.
From the above chronological history of events that I have described, it can be reasonably inferred that the incidents of physical harm to the child alleged against the father probably are alleged to have occurred while the child was attending E Primary School, where the school principal, social work and support teams were aware of the child's complex history before going into the father's care. Notably, there are no records of concern in the Education Department records about the father until the mother reports her allegations in November 2023. Further, the same records from the education department record that the child has not been at school for several weeks, meaning during the time when the child had been withheld and was in the mother's care.
EVALUATION
Turning to my evaluation of the evidence I have just described and conducting the multileveled evaluation that I currently must undertake of all the considerations in s 60CC(2) and (3), I do so cognisant that the evidence has not been tested and that there may be conflict and dispute about the veracity of each parent's account. Nonetheless, there is a large degree of objective material before the Court based on the records I have described. I am required to assess the respective proposals made by the parties about the care of the child in the interim, and I have, in doing so, weighed probabilities of competing claims on some untested evidence, but a great deal of evidence which is not in dispute. I weigh that evidence to assess the impact of the potential risks to the child in each parent's care.
Each party has conceded that there is some risk of harm to the child alleged in each party’s care and it is obvious that the Court needs to assess which proposal is likely to expose the child to the lower risk of harm, whether physical or emotional, in the interim. This assessment involves considering the evidence I have described about the parenting capacity of the parents, the nature of their relationship with the child and their ability to facilitate a relationship with the other parent, while keeping the child safe from physical or emotional harm. I must prioritise the proposal which is likely to minimise the relative risk to the child.
Risk to the Child in the Father’s Care
I turn to address the risks to the child in the father's care. I place relatively low weight on the allegations of physical harm to the child in the father's care at this juncture. The evidence suggests to me that the mother has constructed the allegations after deciding to withhold the child in late 2023. This is because:
(a)There is no report of physical harm until late 2023, and even then there were concerns that the allegations were influenced or made by the mother and not the child.
(b)There is no record of any report of harm at the school between the beginning of the school year and when the child was withheld by the mother, being the period when she was in the father's care.
(c)The mother's allegations all arose after the changeover dispute.
(d)The allegations initially reported by the mother to police are inconsistent with her subsequent and enlarged allegations against the father and stepmother, which she then reported to doctors and CSS.
(e)The police investigation which did hear the voice of the child (because she was interviewed) considered that the allegations were not reliable. It is notable that this was the same view held by CSS.
I am mindful that the mother has a complex history of trauma and mental health difficulties, which may have impacted on the reliability of her reports and her motives, and I have taken this into account.
I consider it likely that the father has historically perpetrated family violence in the form of verbal abuse, given the information recorded in the s 69ZW reports, but there is no information suggesting physical harm or abuse of the child. I do not discount the possibility that the child has been present when there may have been verbal arguments and raised voices between the father and his partner, subjecting the child to possible emotional harm if she was witness to it. I will elaborate further on this shortly.
In making these remarks, I am also informed by the interim family violence order that was made in late 2023 for the protection of the mother, but I do note that this was made without an appearance by the father and I do not know what evidence was before the court and whether it was probative. The father also has a history of being charged with offences in 2005 and 2016. But only the 2016 charge was proved by a plea of guilty. The conviction of driving over the prescribed limit in 1993 is also noted and is moderately high but it was when he was a young man, about 20 years of age. There is also a subsequent drink driving charge in mid-2023 and the reading is again relatively high, raising the degree of concern about the reports to CSS in June 2023.
It is important the father recognise the risks of abuse of alcohol if he is to successfully provide care for the child. There is a well-known association between abuse of alcohol and inability to manage emotions and act impulsively, which creates a risk of verbal arguments between couples which children may well observe and hear. I have taken this into account.
Risk to the Child in the Mother’s Care
I now turn to the risk if the child is to remain in the mother's care. The evidence before the Court referred to earlier in these reasons, particularly the CSS records, outline the extensive history of consistent concerns for the welfare of the child in the mother's care between 2017 and 2022. The concerns relate to the mother's mental health, substance use, homelessness and a relationship with a partner who CSS were satisfied had inflicted injuries on the child including injuries from “throw playing the child”. Further, the concerns are echoed in the Education Department records which I have already described.
From the material before the Court, I suspect that the mother has difficulty in addressing mental health concerns, as well as her substance abuse issues. The CSS record also reflects inconsistency in her engagement with J Centre supports. In particular, I refer to the entries in June 2023.
Given the gravity of concerns throughout 2022, the unilateral withholding of the child contrary to any input from CSS in late 2023, and the evidence about the mother engaging with Dr G and arranging assessments and treatment only from late 2023, the view or picture which emerges is that the child has been subjected to likely and relatively high risks of harm in the mother's care. I place little weight on the reports of Dr G given that the mother and the child have only begun seeing her recently.
Finally, if the allegations made by the mother against the father are demonstrated to have been constructed by the mother to justify her withholding of the child – and here I am referring specifically to the allegations of physical harm by the father and his partner to the child – this would cause an extremely high level of concern about the mother inflicting emotional harm on the child by failing to facilitate a relationship between the father and the child.
I conclude in my assessment of the risks to the child in the mother's care by observing that it is curious indeed that the allegations against the father now are very similar to those that were substantiated against the mother's partner in 2017/2018, which relate to throwing the child.
CONLCUSION
For all the reasons given, I have formed the strong impression that the risks of harm to the child in the mother's care are higher than the risks of harm to the child, either physically or emotionally, in the father's care. The child should be returned to the care of the father in the interim. This will ensure that the child attends school, where she had been attending all year until the mother withheld her. She will there be visible to mandatory reporters within the Education Department and it can be envisaged that the improvements she experienced up until late 2023 may well continue.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 9 January 2024
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