Palazzolo & Mirabelli
[2022] FedCFamC1F 796
Federal Circuit and Family Court of Australia
(DIVISION 1)
Palazzolo & Mirabelli [2022] FedCFamC1F 796
File number(s): BRC 12859 of 2018 Judgment of: BAUMANN J Date of judgment: 19 October 2022 Catchwords: FAMILY LAW – PARENTING – Interim – Where the current evidence reveals that both children are exposed to the parental conflict and it is causing them distress – Where the father has demonstrated an inability to consistently prioritise the children’s best interests – Where a cessation of all contact for some months with the father would not be in the children’s best interests – Orders made for the children to spend day time with the father Legislation: Family Law Act 1975 (Cth), s 60CC Cases cited: Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 13 October 2022 Date of Orders 14 October 2022 Place: Brisbane Solicitor for the Applicant: Hawkes Lawyers Counsel for the Respondent: Mr Berghofer Solicitor for the Respondent: Bennett & Philp Lawyers Solicitor for the Independent Children's Lawyer: Ms Bricknell, Legal Aid Queensland ORDERS
BRC 12859 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PALAZZOLO
Applicant
AND: MS MIRABELLI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
14 OCTOBER 2022
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That Orders 5, 12 and 17 of the Orders dated 6 September 2022 are discharged.
2.That the children, X born 2011 (“X”) and Y born 2014 (“Y”) (collectively “the children”) shall spend time with the father as follows:
(a)Every second Saturday, commencing 22 October 2022, from 9.00am to 3.00pm;
(b)Every second Sunday, commencing 30 October 2022, in the week the children are not spending time with the father as follows:
(i)X shall spend time with the father from 9.00am to 1.00pm; and
(ii)Y shall spend time with the father from 1.00pm to 5.00pm.
(c)On Christmas Eve from 9.00am to 5.00pm; and
(d)On the children’s and the father’s birthday from 3.00pm to 6.00pm.
3.That changeover of the children will occur at the B Region Children's Contact Centre (“the Centre”) if the Centre is available to facilitate changeover or, if the Centre is unavailable, at McDonalds, C Region.
4.That the parents contact the Centre within forty eight (48) hours of the date of these Orders and comply with all the requirements of the Centre staff so that changeover will be facilitated.
5.That any costs associated with the supervised changeover be shared equally by the parents.
Updated family report
6.That for the purposes of writing an updated family report, the mother and the father shall attend family report interviews in person with Ms D at the Brisbane office of Legal Aid Queensland on 8 November 2022, as arranged by the Independent Children’s Lawyer.
7.That the mother shall ensure that the children attend the family report interviews in person at the Brisbane office of Legal Aid Queensland on 8 November 2022, and that the children are available to meet with the Independent Children’s Lawyer and Ms D, as arranged by the Independent Children’s Lawyer.
8.That the parents use their best endeavours to ensure that their partners also attend the family report interviews in person on 8 November 2022, as arranged by the Independent Children’s Lawyer.
9.That the Independent Children’s Lawyer have leave to provide Ms D with copies of any relevant subpoena material and any relevant documents filed in these and the previous family law proceedings.
10.That following the release of the updated family report, the parents attend a mediation conference, as arranged by Legal Aid Queensland, to review the time the children will spend with the father.
11.That the Independent Children’s Lawyer be at liberty to apply on short notice.
12.That these proceedings be adjourned for Case Management Hearing at 9.30am on 19 December 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane, to review the family report and consider listing the proceedings for a Final hearing, if necessary.
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 the pseudonym Palazzolo & Mirabelli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
On 14 October 2022 Orders, as contemplated during an interim hearing in this matter conducted on 13 October 2022, were made by the Court.
In the ultimate analysis, at the conclusion of the hearing, I indicated I would not pronounce orders until I had considered three tendered items of evidence, which I had not viewed prior to the hearing.
As the transcript of the hearing reveals, the final competing proposals were:
(a)the Independent Children’s Lawyer (“ICL”) circulated a draft interim minute of order which provided for the two children (X aged 11 years and Y aged eight years), to spend unsupervised day time with the Applicant father Mr Palazzolo;
(b)with some minor amendments, the mother confirmed she would consent to interim order as proposed by the ICL; and
(c)the father, who sought initially for an interim order to change residence, ultimately did not press for that change on an interim basis, however he submitted that the time the children should spend with him should include overnight time – certainly more time than the ICL proposed.
background
The parents of these two children have been in almost continual conflict since they separated in May 2015 – when X was aged four years and Y under one year.
With the benefit of family reports by Ms E, and a psychiatric assessment by Dr F, when the matter came before me on 17 November 2021, the parents (who had legal representation) urged the Court to make final parenting orders, which the Court did, in the following terms (“the said final Orders”):
1.That the children, [X] born [2011] and [Y] born [2014] (“the children”) live with Applicant mother.
Parental responsibility
2.That the mother have sole parental responsibility for all of the major long-term decisions for the children’s care, welfare and development including but not limited to:
a. education (including primary, secondary and tertiary);
b. health care, medical and dental issues;
c. religious observance;
d. sporting, cultural and social activities; and
e. travel, including the obtaining of a passport.
3.That prior to making a major long-term decision for the children’s care, welfare and development, the mother will:
a. advise the Respondent father in writing of the decision intended to be made;
b. seek the father’s written response in relation to the decision intended to be made with such response to be provided within seven (7) days;
c. consider by reference to the child’s best interest any written response received from the father prior to making any such decision; and
d. advise the father in writing within seven (7) days of her ultimate sole decision.
4.That each parent will be responsible for making decisions regarding the children’s day-to-day care, welfare and development during the times that the children are in their care, unless prevented from doing so in these Orders.
Living arrangements
5.That the children spend time with the father during the school term as agreed by the parents in writing and failing agreement, as follows:
a. In week one (1) of every two (2) week time period, from after school or 3:00pm on Friday to before school or 9:00am Monday;
b. In week two (2) of every two (2) week time period, from after school or 3:00pm on Wednesday to before school or 9:00am Friday; and
c. The first week of every two (2) week time period will commence on the first week of every school term.
6.That during the school holidays the children will spend time with the father as follows:
a. In the first, second and third school term holidays, from 4:00pm on the first Saturday of the school holidays to 4:00pm on the second Sunday;
b. In the December/January school holidays as follows:
i.In odd numbered years the children will spend weeks one (1), four (4) and five (5) with the mother and weeks two (2), three (3) and six (6) with the father;
ii.In even numbered years the children will spend weeks one (1), four (4) and five (5) with the father and weeks two (2), three (3) and six (6) with the mother;
iii.The school holiday time will commence at 4.00pm on the first Saturday of the school holiday period and with changeover to occur at 4:00pm on Saturdays; and
iv.If a parent wishes to travel overseas with the children over the December/January holidays, outside their allotted time period, they:
1. will seek the other parent’s agreement in writing two (2) months prior to travel and provide the dates of intended travel;
2. the other parent will not unreasonably withhold their agreement to the travelling parent going overseas for a four week time period with that time to include the Christmas special occasion days; and
3. upon their return to Australia the children will spend the remainder of the school holidays until 4:00pm on the Saturday before school re‑commences with the non-travelling parent and, if required, an extra week of school holidays in the following year as agreed to by the parents.
7.That the children spend the following special occasions with each of the parents:
a. With the mother for Mother’s Day from 3.00pm on the Saturday before Mother’s Day to 9.00am or the start of school on the Monday after Mother’s Day;
b. With the father for Father’s Day from 3.00pm on Saturday before Father’s Day to 9.00am or the start of school on the Monday after Father’s Day;
c. For the children’s birthdays as follows:
i.In every odd numbered year with the father from 3.00pm (or after school if a school day) the day before the birthday to 9.00am (or before school if a school day) the day after the birthday; and
ii.In every even numbered year with the mother from 3.00pm (or after school if a school day) the day before the birthday to 9.00am (or before school if a school day) the day after the birthday.
d. For the parent’s birthdays, the children will spend time with each parent on their birthday from 3.00pm or after school the day prior to the birthday to 9.00am or before school the day after the birthday.
e. For Christmas as follows:
iii.From 3:00pm on Christmas Eve to 3.00pm on Boxing Day with the father in even numbered years; and
iv.From 3:00pm on Christmas Eve to 3.00pm on Boxing Day with the mother in odd numbered years.
f. For Easter, from 3.00pm or after school on the Thursday before Good Friday to 3.00pm on Easter Monday with the father in odd numbered years and the mother in even numbered years.
Changeover
8.That changeover of the children will occur as follows:
a. When the children are attending school, immediately before or after their time with the father, changeover will occur at the children’s school; and
b. At all other times changeover will occur outside the mother’s residence at the gate, with the father restrained from entering the gate to the mother’s residence.
Communication
9.That the children are at liberty to communicate with the other parents by email, text message, phone or FaceTime at any reasonable time that they request to do so.
10.That the parents will communicate with each other about the children by email or text message unless it is an emergency and then by telephone call.
11.That each parent will keep the other parent informed of a residential address and a contact telephone number for the children and they will inform the other parent, in writing, of any changes to these details within forty-eight (48) hours of such a change.
12.That the parent responsible for the care of the children is to contact the other parent as soon as practicable if the children:
a. become seriously ill;
b. are hospitalised; or
c. are involved in an accident; and
inform the other parent of the name and address of any treating doctor and medical facility.
13.That in the event an urgent decision (such as a medical emergency) must be made by either parent and the other parent is not able to be contacted, after all reasonable attempts have been made or the other parent fails to respond to a reasonable request for information, the parent caring for the children will make that decision and inform the other parent by the most immediate means possible.
14.That these Orders provide authorisation to:
a. allow the provision to the other parent, by any health, educational or welfare professional or other professional attended by the children, of any information affecting the health and welfare of the children;
b. permit the children’s school to provide reports, notices and school photographs to the other parent; and
c. permit the other parent to discuss with the children’s teacher their performance.
15.That the mother will keep the father informed in writing of the name, address and telephone numbers of any health service provider engaged or proposed to be engaged in relation to the children, and any form of treatment administered, recommended or proposed for the children within two (2) hours of attendance or the treatment being prescribed.
16.That the parents will ensure that the children attend any extra-curricular activities that occur during the time that the children spend with that parent, including but not limited to acting rehearsals, acting performances, sailing activities, sporting fixtures, sports training, dance lessons, dance rehearsals and their friend’s birthday parties.
17.That both parents are at liberty to enroll the children into extra-curricular activities that occur during the time the children are with that parent, and the parents are restrained from enrolling the children into extra-curricular activities that occur during the time the children are with the other parent unless otherwise agreed to by the parents in writing.
Overseas travel
18.That the parents will do all acts and sign all documents necessary to ensure that the children maintain valid Australian passports.
19.That the parents will not arrange for the children to travel overseas during the school term or on the children’s special occasion time with the other parent unless this is agreed to by the parents in writing.
20.That the parent who has possession of the children’s passports will provide the passports to the other parent within five (5) days of receiving a written request to do so.
21.That at least four (4) weeks before the children travel overseas, the parent travelling with the children will provide the other parent with a written itinerary which contains the following information:
a. The dates and times of the children’s departure and arrival in Australia and the countries they are travelling to;
b. The addresses of all the places that the children will be staying while they are overseas; and
c. A contact telephone number and email address for the children at each location that they are staying at while overseas.
22.That the parents will share equally in any costs associated with maintaining the children’s passports.
Restraints
23.That the mother is restrained from making any changes to the children’s living arrangements that makes it more difficult for the children to spend time with the father in the accordance with these Orders, unless otherwise agreed in writing.
24.That the father is restrained from taking the children to a health or allied health professional including but not limited to a doctor, counsellor, psychologist or psychiatrist.
25.That if it is an emergency situation, such as a medical emergency, the father is at liberty to seek urgent medical attention for the children and he must provide the following information to the mother in writing within two (2) hours of the emergency situation:
a. A description of the emergency situation;
b. The name and contact details of the medical practitioner; and
c. The details of any treatment prescribed by the medical practitioner, including drug names, dose amounts and frequency of administration.
26.That the parents are restrained from engaging in the following behaviours:
a. From video or audio recording the children when the other parent is present with the children;
b. Discussing any adult issues with the children including their views of the other parent and the other parent’s partner; and
c. Questioning the children about the other parent including questioning the children about how the other parent cares for them.
27.That the father is restrained from assisting the children to communicate with him by email, letter, text message, social media or telephone unless the communication is specifically authorised by these Orders.
General
28.That within three (3) months from the date of these orders, the parents shall arrange and attend a joint session with [Dr G], the cost of which is to be shared equally, at which sessions the parties shall have leave to produce to [Dr G] a copy of these Orders and invite him to provide advice as to future strategies they can apply to support the Orders made today with the parents’ consent.
29.That the parents will make the children available to meet with the Independent Children’s Lawyer in the company of [Ms E], the family report writer, so that these Orders can be explained to the children.
30.That the Independent Children’s Lawyer be discharged after the Orders have been explained to the children.
Although final orders were made, it is fair to observe some simmering issues remained unresolved between these parents who are still unable to communicate effectively.
At a trial (if ultimately required, and when findings can be made which is not able to occur within the context of this interim hearing), I anticipate the history since February 2022 will be more closely examined. Suffice it to say the parents each in their material make serious allegations against the other – generally in the range of psychological abuse and negative emotional behaviour.
The father says the tape of X threatening to self-harm was the catalyst for his Application filed on 21 June 2022 seeking residence. He had retained the children – having taken X and Y to a doctor on or about mid-2022 for assessment of X’s expressions of self-harm.
All the evidence reveals that both children are exposed to the parental conflict and it is causing them distress. In this regard, I note that the ICL has activated early appointments for a fresh family report with interviews to be conducted on 8 November 2022, culminating (it is hoped) in a report being published in December 2022.
The new litigation caused the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) to be involved (see Exhibit 2), resulting in an assessment dated 5 July 2022, which concluded the father was “a parent who is unwilling and unable to provide the children with their ongoing care and protection needs. The father has demonstrated his inability to consistently prioritise the children’s best interests by disregarding recommendations to engage in positive co-parenting; withholding the children from their mother which has damaged their relationships; and failing to respond appropriately to suggestions to reintegrate the children back into school, therefore contributing to their sense of social isolation.”
The mother was more positively assessed as a parent “who is willing and able to provide the children with their ongoing care and protection needs.”
An assessment by the H Town Community Support Service dated 8 July 2022 (Exhibit 3) (initiated it seems by the father) as a result of the child X’s “voicing suicidal ideation” (the tape viewed and marked as Exhibit 1 being an example) opined that:
Author observes recent contact with [P Services] with nil further role identified, however from today’s engagement it is apparent the children are struggling to cope, one with anxiety/panic, the other ([X]) voicing intent to suicide if he has to stay with his mother, with custody hearing to be attend this coming week.
The video (Exhibit 1) demonstrates X expressing an intent to self-harm, however the assessment made by the Mental Health Unit was no “immediate risk of suicide” but that if the children were “returned to their mother then it is highly likely there will be some form of incident/suicide attempt/misadventure, however clinicians could not get any clear time line around when this may occur.”
By Order of a Senior Judicial Registrar on 6 September 2022, the children returned to the mother and the father’s time was suspended. The Orders made were as follows:
1.That the Orders dated 17 November 2021 be reinstated.
2.That Orders 5 through 11 inclusive of Orders dated 17 November 2021 be suspended.
3.That the children [X] born [2011] and [Y] born [2014] (“the children”) be released from Court Children’s Services to the mother today.
4.That the children live with the mother until further order.
5.That the children have no time or communication with the father.
6.That within twenty-four (24) hours the mother is to contact:
a. The Department of Children, Youth Justice and Multicultural Affairs at [H Town] and request an updated safety plan;
b. [Ms K] at [J Services] to obtain an plan to manage the children’s mental health issues including management of the children’s social media to reduce the likelihood of their exposure to material which may encourage or depict self-harm, and strategies to manage challenging behaviour including school avoidance;
c. The principal of [L School] to develop a school attendance plan to encourage and facilitate the attendance of the children at school regularly including how she should best support their educational development; and
d. Her treating health practitioner to update her mental health plan.
7.That upon receiving the updated plans pursuant to order 7, the mother is to provide them to [Dr G] and make the earliest appointment with him to obtain any assistance suggested to implement the plans.
8.That the mother is to comply with the safety plans developed pursuant to Orders 6 and 7 herein.
9.That the mother is to attend upon the children’s general practitioner(s) for the purpose of obtaining updated mental health plans for the children and (if necessary) a referral to a paediatrician.
10.That the mother is to facilitate the children attending upon a paediatrician at the earliest available appointment for the purpose of obtaining a written report assessing of the children’s health needs and (if appropriate) an urgent referral to a child and adolescent psychiatrist for assessment.
11.That the mother is to provide a copy of the report to the Independent Children Lawyer.
12.That the mother is to ensure that the children attend (the [N Psychologists]) for confidential and inadmissible therapy.
13.That pursuant to s 121 of the Family Law Act, the mother have leave to provide The Department of Children, Youth Justice and Multicultural Affairs, [J Services] and [Dr G] with the following documents:
a. A copy of these Orders;
b. Information produced from the Department of Children, Youth Justice and Multicultural Affairs;
c. The [P Services] Assessment; and
d. The paediatric assessment.
Airport Watch list
14.That until further Order or else subject to the written consent of both parties, each party, [MR PALAZZOLO] born [1977] and [MS MIRABELLI] born [1988], their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the children, [X] born [2011] and [Y] born [2014] from the Commonwealth of Australia.
15.That the Marshal of all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the children’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the children’s name on the Watch List until further order of the Court, or authenticated written consent of both parties.
Section 91B
16.That pursuant to section 91B of the Family Law Act 1975 the Court requests the intervention of the Director-General, Department of Children, Youth Justice and Multicultural Affairs in the proceedings relating to the children, [X] born [2011] and [Y] born [2014]:
a. Leave is granted to Department Officers to inspect the Court file and any subpoenaed material produced to the Court and for which leave to inspect has been granted to the parties, their legal representatives and/or the Independent Children’s Lawyer;
b. The Department is requested to advise, in writing within fourteen (14) days, whether they intend to intervene in these proceedings and in the event the Department indicated a desire to intervene orders, shall, upon such intention being advised to the Court, be made in chambers:
i.Formally granting such leave and joining the Department as a party;
ii.Granting photocopy access to the Department to copy such material as the Department desires and at the Court’s expense from the Court file and any subpoenaed material; relisting the proceedings on short notice to allow further case management directions to be made.
Restraints
17.The father is restrained from contacting or attending [L School], the Department of Children, Youth Justice and Multicultural Affairs [H Town], [J Services], [N Psychologists] and the paediatrician appointed pursuant to Order 10 herein personally or through an agent.
General
18.That the Independent Children’s Lawyer have leave to issue a subpoena to the Queensland Ambulance Service, [Q Hospital] and [Dr M] and [Dr O].
19.That pursuant to s.65L of the Family Law Act 1975, the mother, children and Independent Children’s Lawyer shall attend Court Children’s Service on 6 September 2022 at the Federal Circuit Court of Australia, Brisbane on Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane, for the purpose of a Family Consultant and the Independent Children’s Lawyer explaining these Orders to the children.
Transfer
20.That these proceedings be transferred to Division 1 of the Federal Circuit and Family Court of Australia in Brisbane.
21.That these proceedings be listed for Case Management Hearing before the Honourable Justice Baumann at 9.30am on 26 September 2022 in the Federal Circuit and Family Court of Australia in Brisbane.
Despite an invitation to intervene, the Department has elected no to do so.
The most recent affidavits reveal that the children wish to see their father, but, thankfully, no incident in the mother’s home has occurred. She has continued to experience difficulty in getting the children to attend school.
Outcome
This interim decision requires a balance of the children having the benefit of a relationship with their father, with the risk that the children are exposed to from the intense attitude and comments of the father – mostly, it is alleged, of a negative character about the mother.
The children have nearly lived their entire life since separation in the primary care of the mother. That was the effect of the said final Orders.
The exposure of these children to negative comments about the other parent has been a feature of the post separation period. I am not able to determine whether, and to what effect, each parent’s behaviour contributes to the anxiety these children are experiencing.
It would have been open to me not to consider making orders until after receipt of the family report, however:
(a)I have formed the view that a further change of residence is not indicated at this time, although the mother is on notice that it may become an important factor (if residence continues to be in contest), as to which parent is able to get the children to school consistently;
(b)I do not ignore the risk of emotional and psychological abuse which the mother asserts exists in the father’s home which to some degree is supported by the brief assessment by the Department; and
(c)in view of the strong views expressed by the children, an order for no time at all with the father, for what could be many months until trial, is disproportionate to the risk that could occur, especially when the limited time contended by the ICL (which does not include overnight time) is in place.
These children have had a regular and continuing relationship with their father and, on my assessment, a cessation of all contact for some months would not be in the children’s best interests. I make this assessment by giving more weight to the s 60CC(2)(b) factor as required.
In making these findings, I am aware of the pathway for interim determinations set out in Goode & Goode (2006) FLC 93-286 and the further remarks of a later Full Court in Banks & Banks (2015) FLC 93-637, that not every consideration in s 60CC(3) must be traversed. The competing primary considerations (s 60CC(2)) and the wishes of the children and the effect of the change were, in my view, the most obvious factors.
For the record I note that Mr Hawkes for the father indicated he did not need Reasons for Judgment but I felt obliged to say something more than the oral exchanges at the hearing, and I also wanted all parties to be satisfied I had read the two Exhibits and watched the video, before I perfected the Orders made 14 October 2022.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 19 October 2022
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