Pacino & Pacino

[2021] FamCA 166

FAMILY COURT OF AUSTRALIA

Pacino & Pacino [2021] FamCA 166

File number(s):

WOC 262 of 2016

Judgment of:

HARPER J

Date of judgment:

17 March 2021

Catchwords:

FAMILY LAW – PARENTING AND FINANCIAL PROCEEDINGS – Where the parties have been involved in acrimonious proceedings for five years – Where the children have accused the father of family violence – Where criminal proceedings ensued and the children gave evidence of the family violence – Where the father was found not guilty – Where the father also makes claims of family violence against the mother – Where the children have not seen the father in five years – Where the parties nonetheless negotiated consent orders finalising the entirety of the proceedings – Where the parties agreed to engage in family therapy – Where the Single Expert opined that family therapy was unlikely to be successful at the time of the report in 2018 – Where the ICL did not support nor actively oppose the consent orders – Where consent orders would relieve the children of the burden of litigation – Where the parties agreed to divide the modest asset pool – Consent Orders made.

Legislation:

Family Law Act 1975 (Cth) s 60CC

Family Law Rules 2004 (Cth) r 10.15A  

Cases cited:

Tibb & Sheean (2018) 58 Fam LR 351

Number of paragraphs:

21

Date of hearing:

17 March 2021

Place:

Sydney

Counsel for the Applicant:

Mr Dura assisted by Ms Jeliba

Counsel for the Respondent:

Ms Lawson

Counsel for the Independent Children's Lawyer:

Ms Hayward

ORDERS

WOC 262 of 2016

BETWEEN:

MR PACINO
Applicant

AND:

MS PACINO
Respondent

INDEPENDENT CHILDREN'S LAWYER

Other

ORDER MADE BY:	HARPER J
DATE OF ORDER:	17 MARCH 2021

THE COURT ORDERS THAT:

1.The document titled "MINUTE OF CONSENT ORDERS" as signed by the parties and dated 17 March 2021 be marked "Exhibit A".

2.Orders be made by consent in accordance with Exhibit A.

3.Within 14 days, the Independent Children's Lawyer take all necessary steps to cause the children the subject of the proceedings to attend at the Court building for the purpose of having the Orders made by consent on 17 March 2021 explained to them by a Family Consultant of the Court, noting that the Court requests the Family Consultant to make clear to the children that the Orders made were fully supported by the Respondent Mother.

4.The Independent Children's Lawyer have leave to provide to the Family Consultant any documents relating to the proceedings the Independent Children's Lawyer considers necessary for the purpose of the Family Consultant providing the explanation referred to in Order 3. 

5.The Respondent Mother be retrained from communicating to the children in any way about the final orders made herein before such orders have been explained to the children in accordance with Order 3.

6.The Independent Children's Lawyer be discharged on and from 30 April 2021.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pacino & Pacino has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

HARPER J:

1. These are parenting and property proceedings.  They have been ongoing for some five years.  It is beyond argument that the parties have been locked in a titanic and extremely acrimonious battle in relation to both their children and their available matrimonial assets.  There are four children of the relationship.  The eldest child, Ms B, was born in 2001 and is now, at the age of 19, beyond the jurisdiction of the Court.  The remaining children are X, born in 2003 and aged 17, Y, born in 2005 and aged 15, and Z, born in 2009, currently aged 11.

2. The proceedings were listed for a final hearing for ten days commencing on 15 March 2021.  In preparation for the final hearing the parties produced voluminous pages of documentary evidence, and affidavit evidence, including a handwriting expert, together with their case outlines and chronologies.  After the trial commenced briefly on 15 March 2021, the parties very sensibly commenced discussions in an attempt to resolve the disputes between them. 

3. I note here that an independent children's lawyer has also been appointed. 

4. On Wednesday, 19 March 2021 the parties presented to the Court a proposed minute of consent orders which contained orders that would, if made, resolve all aspects of the proceedings.

5. Each of the parties have signed the proposed minute of consent orders. However, the independent children's lawyer has not.  It is important to emphasise here that, of the children who have not reached their majority, the proposed minute of consent orders focuses primarily upon Z, who, as already mention, is 11 years old.  Z has not seen her father for about five years.  The proposed minute of consent orders makes provision for a regime of family therapy to be commenced involving Z and the father, individually and then jointly, followed by sessions of supervised time, followed thereafter by unsupervised time on weekends but no overnight time.

6. In relation to the parenting aspect of the proceedings I must be satisfied in making the parenting orders that the orders proposed will be in the best interests of the children.  The proposed minute of consent orders as it affects X and Y provide that, in effect, they spend time with the father only in accordance with their wishes.  I am satisfied an order of that nature is in their best interests, it is consistent with views they have expressed during the litigation and to Dr G, who was appointed as single expert for the preparation of a Family Report. 

7. The position regarding Z is less clear.  Turning to the primary and additional considerations set forth in section 60CC, I take it that the parents perceive there will be benefit in Z having a meaningful relationship with her father.  Presently, it appears that she is unlikely to have any relationship with her father.  One of the central concerns in the proceedings is that each party makes allegations against the other concerning family violence and risk.  I have not had the benefit of hearing all the evidence or submissions of the parties nor have I had the benefit of observing either of them in the witness box. 

8. However, it is beyond dispute that the allegations that have been made are historical, and there's no evidence of particular risk arising after the parties separated in 2016.  In light of the agreement of the parties and their proposed consent orders, I am, of course, unable to form any view about the truth or otherwise of their various allegations against each other.  I do know, as an undisputed fact, however, that the father was charged with various criminal offences, of which he was acquitted in the past, and that the children gave evidence in those criminal proceedings against him. 

9. I also take account of the fact that the evidence of Dr G in her report dated 6 November 2018 records a strong expression of view by all the children that they had no wish to spend time with their father. 

10. It was also put to me that the benefit to the children of a cessation of litigation, not to mention the benefit to their parents, was very great in the circumstances of this case.  As both counsel for the parents submitted to me, if the orders proposed by the parents by consent are not made there will be ongoing litigation, the cessation of which would be some significant time in the future.  It is a significant factor that the children and the parents, if at all possible, should not be put through the considerable burden and aggravation of such an outcome. 

11. It was also put to me that the degree of certainty involved in making the proposed consent orders would be of benefit to the children since they would be finally relieved to know that their living arrangements are, to the extent possible, set in concrete and that the case is finally over.  I do not propose to otherwise go through the additional considerations set out in section 60CC(3).  The Full Court has made clear in such cases as Tibb & Sheean (2018) 58 Fam LR 351; (2018) 337 FLR 149; [2018] FamCAFC 142 that despite the mandatory need to consider those factors, it is not necessary to discuss them. I have considered those factors, not only during the time the parties took to negotiate their proposed settlement but also by reference to the, with respect, cogent submissions made by both counsel for the father and the mother.

12. I am also satisfied that the matters set out in rule 10.15A have been satisfactorily addressed by both the mother and the father's counsel.  I am persuaded that there is considerable force in the submission that the length of time since separation and the absence of evidence suggesting risk factors are still of significance, if they ever were, means that the Court can be satisfied that the proposed consent orders satisfactorily address whatever risk factors may remain operative, if any. 

13. The independent children's lawyer was not prepared to sign the proposed consent orders.  Her counsel made clear to the Court that she took that position because, the current state of the evidence, particularly the evidence in Dr G's report, did not support the making of those orders. 

14. She emphasised that Z has not spent any time with her father since she was five years old.  This is a factor which has caused the Court some concern and was, quite properly, raised by the independent children's lawyer.  However, on careful reflection, in circumstances where it is not suggested that Z would not benefit at all from a meaningful relationship with her father, and in circumstances where, although Dr G expressed doubt about the efficacy of family therapy as a way of reintroducing any of the children to their father in November 2018, on balance, I am persuaded that it is preferable to embrace the course for family therapy in the proposed final consent orders as a carefully graduated regime for Z to be reintroduced to her father. 

15. As counsel for the father pointed out, Dr G was doubtful about the efficacy of family therapy, but she did not express a view that it was completely hopeless.  I also observe that her statements about family therapy were made as a general proposition in relation to the children as a group, not specifically in relation to Z.  As counsel for the mother submitted, events have moved on, to some extent, since November 2018, and, as counsel for the mother also pointed out, the mere fact of agreement between the parents about a parenting regime is something which may go some distance in persuading the children that the toxic atmosphere of perpetual conflict into which they have been placed by their parents is, at last, come to an end, and all can move forward without the considerable millstone of litigation hanging, balefully, around their necks.

16. Counsel for the independent children’s lawyer also, quite properly, submitted that it was possible that the proposed final consent orders may, indeed, be positive for Z in the longer term.  Her point was that it was not presently possible to know.  That is a perfectly fair submission to make, but I would observe that, to some extent, in the many situations of terrible parental conflict that come before this Court, it can always be said that any consent orders involve a leap of faith to a greater or lesser extent.  Counsel for the independent children's lawyer also made clear that the independent children's lawyer does not wish to appear obstructive and does not, necessarily, oppose the orders.  It is just that she is not prepared to indicate consent to them by applying her signature.

17. Finally, I note that the parties have reached a final position concerning their property dispute.  As I understood the submissions of the parties, the existence of the resolution of the property dispute would, of itself, be a factor which might assist the children in viewing the proposed final consent orders as part of an overall desirable outcome which has brought the litigation to an end. 

18. Counsel for the father also proposed that orders should be made for a family consultant in the Court to explain the orders to the children and to include in their explanation the fact that the mother supports these orders, and it is not simply an unpalatable outcome imposed by the Court.

19. The mother also, as I understand it, agrees not to speak to the children about the orders until that process of explanation has been completed by a family consultant.  Accordingly, I am satisfied that, in circumstances where this litigation has been ongoing, where the parties have finally been able to bridge the considerable entrenched antipathy between them to formulate a sensible and broadly realistic resolution of their parenting dispute, that it is appropriate for the proposed final consent orders regarding parenting to be made. 

20. As already pointed out, the parties have also reached agreement of the property settlement.  The overall outcome, in circumstances where the balance sheet discloses a net property pool of slightly greater than $1.2 million, the proposed final property settlement would result in the husband paying $750,000 to the wife with her to contemporaneously assign her right in a property at D Street, Suburb F to him.  In the circumstances of this case, I am satisfied that such an outcome is just and equitable, and I propose to make the property settlement orders. 

21. I conclude by saying that the parties are to be commended for the efforts they have made to overcome their differences to reach a consensual position to resolve the litigation. There can be no doubt, even on the limited amount of evidence that has been put to me, that there must be considerable relief for both of them to know that the litigation has been brought to an end.  It will be of even greater relief to their children.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper.

Associate:

Dated:       17 March 2021