Palazzolo & Mirabelli (No 2)
[2022] FedCFamC1F 1091
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Palazzolo & Mirabelli (No 2) [2022] FedCFamC1F 1091
File number(s): BRC 12859 of 2018 Judgment of: BAUMANN J Date of judgment: 19 December 2022 Catchwords: FAMILY LAW – PARENTING – Where the parties have reached final consent orders – Long history of litigation between the parties – Best interests of the two children subject to the proceedings Division: Division 1 First Instance Number of paragraphs: 18 Date of last submission/s: 19 December 2022 Date of hearing: 19 December 2022 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in person 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:
19 DECEMBER 2022
BY CONSENT THE COURT ORDERS:
1.That all previous parenting Orders be discharged.
2.That the children, X born 2011 and Y born 2014 (“the children”) will live with the Applicant father.
Parental responsibility
3.That the father 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.
4.That prior to making a major long-term decision for the children’s care, welfare and development, the father will:
(a)advise the mother in writing of the decision intended to be made;
(b)seek the mother’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 children’s best interest any written response received from the mother prior to making any such decision; and
(d)advise the mother in writing within seven days of his ultimate sole decision.
5.That the children will spend time and communicate with the Respondent mother in accordance with their wishes and the Applicant father will facilitate the children to do this.
6.That the Respondent mother will communicate with the children by sending cards, letters and gifts every months and on special occasions and the father will ensure the children receive the mother’s letters, cards and gifts.
7.That these Orders provide authority for the mother to:
(a)contact the children’s school, co-curricular providers and health professionals to obtain information about the children, including but not limited to school reports, awards, photographs and health reports;
(b)discuss with the children’s teachers, co-curricular facilitators and health professionals the children’s progress, health and welfare; and
(c)attend any school event or co-curricular activity that the children are involved in.
8.That the father provide to the mother in writing, and within twenty four (24) hours of the children’s enrolment or attendance, the following information:
(a)The name and location of any co-curricular activity that the children are participating in and the name and contact details of the facilitator of that activity; and
(b)The name and contact details of any health provider that the children have attended.
9.That the father notify the mother in writing of the following information, at least a month prior to any change in residence or travel occurs:
(a)Any change to the children’s residential and postal address;
(b)Any proposed interstate or intrastate travel and holidays for the children; or
(c)Any overseas travel proposed for the children.
10.That leave be granted for the father’s legal representatives, Hawkes Lawyers, to withdraw from acting on behalf of the father.
11.That the Independent Children’s Lawyer be discharged.
12.That any previous Orders restraining the removal or attempted removal of the children from the Commonwealth of Australia be discharged, and the children’s names be removed from the Airport Watch List.
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).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
The Applicant father Mr Palazzolo, who is now aged 45 years, and the Respondent mother Ms Mirabelli, who is now aged 34 years, separated in mid-2015. When they separated their two children, X, who was born 2011, was approximately four years of age, and Y, who was born 2014 and not yet reached her first birthday.
Sadly, the parties have been involved in litigation in relation to these children almost entirely since separation, with the mother commencing her first application in November 2018. That ultimately resulted in final Orders being made by me on 17 November 2021 that the children live with the mother; that the mother have sole parental responsibility and for some defined time for the children to spend with the father.
This is despite, during the period of the litigation from 2018 until 2021, the parties being the subject of psychiatric assessments by Dr F and a family report by Ms E on two occasions, in 2019 and again in 2020. In fact, a number of Orders were made and it had been hoped that the conflict between the parties would have resulted in an end to the conflict by reason of the consent Orders made in November 2021. As history would reveal, in June 2022, nearly six months after the final orders had been entered into, the father asserted that there ought to be significant changes to the Orders and brought an application to the Court.
I do not propose to deal with all the events that have occurred and the very significant case management undertaken by Senior Judicial Registrars of the Court, save to say that as a result of a range of evidence, including that from the Department which identified the chronic and toxic relationship between the parents, a Senior Judicial Registrar, on 6 September 2022, made various orders, the effect of which that the children were to live with the mother until further order. There was to be no time or communication with the father. A number of other orders were made on that day.
As the case management of this matter would reflect, when the matter came to Division 1 and I saw it for the first occasion on 26 September 2022, I was concerned about the endurance of the interim orders if a trial was to take place some time in the future. Accordingly, I brought the matter on for an Interim Hearing on 14 October 2022, at which time I effectively ordered that the children continue to live with the mother but that the children spend time with the father in alternate weeks, as those Orders reflect. I invited the Independent Children’s Lawyer, Ms Bricknell, who had been involved in the matter for some time, and a very difficult matter it has been, to obtain an updated family report, which she was able to achieve through the agency of Ms D.
Ms D, an experienced family consultant and social worker, saw the children and the parents in consultation and with full overview of evidence, much of it recent, and after such consultation she produced a report dated 9 December 2022, which the Independent Children’s Lawyer caused to be filed on 12 December 2022. The report, which I have read, again makes it clear that these children have been placed in the invidious position of being exposed to the conflict between their parents.
The report reflects that the children were expressing strong views against spending time with the mother. The children expressed allegations that they had been the subject of abuse and neglect by their mother.
The mother has consistently and persistently denied any such abuse. Nonetheless, paragraph 127 of the report says as follows:
127.On the day of interviews both parents were in agreement that the children should live with the father and have contact with their mother at times of the own choosing. Both parents acknowledged the harmful effects of their long-running parenting dispute. The mother reported that she has not come to this decision easily, and she accepted that the children appear to be happier when living with their father.
128:It is of vital importance that the children’s distress is not disregarded and that the litigation proceedings are finalised as a matter of urgency and that the children’s need for a resolution is prioritized.
This matter had been listed by me for Case Management Hearing today with a view to listing for an early trial, if possible. Having read the material and being aware of the history, the Independent Children’s Lawyer, Ms Bricknell, who, as I said has very consistently done her best to meet the needs of these children through the Court process, offered an order to the Court, the effect of which was that the children would live with and spend time with their parents as agreed to by their parents.
Further, other orders were suggested to try and allow the parties to continue to communicate. Order 2 provided for the parents to effectively have equal shared parental responsibility. I indicated to Ms Bricknell, when I saw these orders that I was not prepared to make them on the evidence. The reasons for taking that view are reflected by the comments and exchanges between the Bench and Ms Bricknell today. I should note at this stage that both the mother and father are today unrepresented. I accept that it is in the best interests of these children to make an order which is least likely to result in further proceedings. To be fair, no order to date has ever achieved that. I am not satisfied that any order I make now will achieve it.
Nonetheless, to provide these children with some certainty, in my view, a more precise order had to be made. It is also my view that, because of the toxic communication between the parents, that it is impractical for these parties to exercise equal shared parental responsibility. I indicated that I was prepared to make an order for the father to have sole parental responsibility, but then I would want the father to consult with the mother and I would also want the mother to have the opportunity to send cards, gifts and the like to the children. I said to the mother today, and I record in these reasons, that the mother’s decision not to press to a trial in this matter and to urge that the children live with her and effectively spend no or little time with the father was an option open to her.
I am conscious that she does not have legal representation today, but I am satisfied that she has, by consenting to orders which I make today, had very much in her mind the best interests of these children. She could have quite easily pressed the matter to a trial, even as an unrepresented litigant, and asked the Court to make an order in the children’s best interests. The trial for these parties would have been significantly difficult for both and likely to have caused significant scars to both of them and their future parenting of these children. The mother has had to confront the children not even wishing to see her at the family report interviews. She has had to confront them making comments and allegations against her which she says are untrue and which are extremely hurtful.
She, to a large degree, blames this on the father, his actions, his influence, maybe his comments. In my view, these children had been influenced by the conduct of both of their parents and the things they have seen and heard in each parents’ household. The children’s wishes, as expressed to Ms D, reflect, in my view, a desire to have some clear time in their life. It is tragic that that does not, in a prescribed way, involve both parents. Neither parent loves these children more than the other. Neither parent wants the best for their children less than the other. There is no guarantee that the orders I make today will guarantee an outcome which might not be challenged in the future. The Independent Children’s Lawyer neither opposes nor consents to the orders proposed, and I thank her for preparing the orders and holds some reservations about the long-term future of these children.
Inevitably, in a civil system relating to parenting orders, children’s parents, being the parents they have, not necessarily the parents they need or the parents they seek, ultimately have the capacity to reach agreements as to the future parenting of their children. There is no allegations before me about the children being the subject of sexual abuse or, in my view, significant violence or neglect. The biggest risk to these children has always been the conflict between the parents and the inability of these parents, it seems, to acknowledge their contribution to how that conflict has shaped their children’s attitude and their view of the world.
It was important, in my view, to have a more prescribed order than that initially offered by the Independent Children’s Lawyer so that the mother has the capacity under the orders to communicate with the children on a regular basis and to be continually involved with and obtain knowledge and information on their welfare and development so that if, as I hope will be the case at some time in the future, the children reach out to have a relationship with their mother, she has been kept informed of their continuing development. I do not lose sight of the fact that the conflict experienced by these children has, at times, caused them major emotional and mental health challenges. It is no doubt something uppermost in both parties’ mind, but particularly the mother, that a constant continuation of this litigation could have had a very significant and tragic outcome.
It is for that reason that I have today indicated to the mother and I record in these reasons, my view that the mother deserves significant credit for making the hard decision she has done today. She told Ms D that it was not a decision she made easily, and I am sure that is the case. The father should not see today’s orders as being a “win” by him. If he sees it in that form, it would be to significantly underestimate the strength of the children’s underlying love for and need for in their life, a mother of the quality of the mother in this case.
But as these children have reached a very significant stage of their development, particularly X, who will be 12 next March, these children need to have the opportunity for some quiet and settled time so that they can get along with their normal development. The mother’s decision, which the father of course supports and the Independent Children’s Lawyer acknowledges, although is unable to support, quite understandably gives these children the best chance of achieving that result.
Accordingly, for those reasons I make the orders which the parties offer with their consent on a final basis. I discharge the Independent Children’s Lawyer.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 5 June 2023
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