PANELLI & PANELLI

[2020] FamCA 584

FAMILY COURT OF AUSTRALIA

PANELLI & PANELLI [2020] FamCA 584

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – where the matter was listed for final hearing – where the expert report was only available some two days prior to the commencement of the final hearing – where the mother had not seen the children for over two years – where the expert could not observe the mother and the children together – where the expert recommended family therapy – where the parties entered into interim consent orders to engage in family therapy – interim consent orders made – final hearing adjourned to allow the parties and the children to attend family therapy.

APPLICANT: Ms Panelli

RESPONDENT: Mr Panelli

INDEPENDENT CHILDREN’S LAWYER: JLM Family Lawyers Pty Ltd

FILE NUMBER: SYC 4668 of 2018

DATE DELIVERED: 14 July 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 13 & 14 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lawrence

SOLICITOR FOR THE APPLICANT: Legal Aid NSW Sydney Central Family Law

COUNSEL FOR THE RESPONDENT: Ms Carr

SOLICITOR FOR THE RESPONDENT: David H Cohen & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Conte-Mills

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: JLM Family Lawyers Pty Ltd

Orders

1. BY CONSENT AND PENDING FURTHER ORDER, orders be made in accordance with the copy document signed by the parties, their legal representatives and the Independent Children’s Lawyer and initialled by me, dated today and placed with the papers.

2. I DIRECT that the solicitor for the applicant file a clean certified typescript of the said document placed on the court file within 3 business days of the date of these orders in Microsoft Word format.

3. Pursuant to s 65DA(2) 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 included in these orders.

4. The final hearing dates listed on 14, 15 and 16 July 2020 be vacated.

5. All previous orders relating to the mother spending time with the children be discharged.

6. Leave be granted to the Independent Children’s Lawyer to have liberty to re-list the matter on 7 days’ notice prior to the adjourned date.

7. THE COURT REQUESTS that K Services give consideration to provide urgently, or as soon as possible, intake for the parties and the children.

8. All extant applications be adjourned to 11 December 2020 at 10:30am for callover or mention to be conducted by Microsoft Teams.

THE COURT NOTES THAT:

1. On the adjourned date consideration will be given to ordering an Updated Expert Report by Dr B.

2. There remains on foot an Application-Contravention filed by the mother on 23 December 2019 and she will give consideration as to whether that Application will be discontinued or pressed, and the Court expects the mother to inform the Court of her position on the adjourned date.

3. The Application in a Case filed on 19 December 2019 is to be discontinued and that a Notice of Discontinuance will be filed within 7 days of the date of these orders.

BY CONSENT, BY WAY OF INTERIM ORDERS, PENDING FURTHER ORDER:

1. Within seven (7) days of these orders each parent is to contact C Services and do all acts and things to ensure that the family can be referred to family therapy through C Services for family therapy to assist them with facilitating a reintroduction of the children, X born … 2011, Y born … 2011 and Z born … 2015 (“the children”), to their mother with the view of them spending time with her.

2. That the children shall live with the father.

3. Upon being accepted to C Services each parent must:

   (a)       Attend any further appointments and assessment;

   (b)       Comply with any appointment made by C Services;

   (c)       Comply with all reasonable rules of C Services;

   (d)       Comply with all reasonable requests or directions of the staff of C Services;

   (e)       Facilitate any time between the mother and the children recommended by C Services.

4. For the purposes of the fees for C Services the following shall apply

   (a)       The father shall pay for the sessions he attends;

   (b)       The mother shall pay for the sessions she attends;

   (c)       Both parents shall share equally for any session the children or any of them attend

5. In the event the parties agree in writing through their legal representatives,  and the family is accepted by either

   (a)       D Health Centre; or

   (b)       F Services; or

   (c)       G Centre; or

   (d)       H Centre ;

   and provided that such service is offered by a qualified family therapist, then the family may use or continue one of those services for family therapy instead of C Services, on the same conditions as set out in orders 2 and 3.

6. Within 28 days the parties shall do all things necessary to engage the children with K Services.  The parties shall provide a copy of the report of Dr B which was released on 13 July 2020 to K Services.

7. The parents’ lawyers and the independent childrens’ lawyer have leave to provide a copy of Dr B’s report released on 13 July 2020 and a copy of these Orders to C Services, and any other service providing family therapy to the family, K Services and z’s paediatrician.

8. The Independent Children’s Lawyer shall be at liberty to contact the family therapist to confirm details of the parties’ attendance at family therapy, compliance with these orders and recommendations of the family therapist.

9. The family therapy shall be reportable.

10. Each party shall ensure that, other than the independent children’s lawyer, third parties do not contact or speak with the family therapist working with the family, without an order of this court or the written agreement of both parents.

11. Other than in accordance with these orders, neither party shall cause the children to consult a psychiatrist, psychologist and /or counsellor without the written consent of the other party or order of the court.

12. The father shall ensure that the mother is informed as soon as reasonably practicable of:

    (a)       any medical problems, emergencies, hospitalisations, or illnesses suffered by any of the children while in each parent’s care;

    (b)       any medication that has been prescribed for any of the children;

    (c)       any social, school or religious functions which any of the children is to attend;

    (d)       any other matter relevant to the children’s welfare.

13. Within 14 days of these orders the father is to do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the mother copies of all of each child’s school reports and newsletters, school photo order forms any written material pertaining to each child’s academic and extra-curricular activities, and ensure the children’s school are able to discuss all matters relevant to the children’s welfare and education and schooling with the mother.

14. Each party is restrained from using any form of physical discipline on the children.

15. Each party is restrained from discussing with the children any legal proceedings including these court proceedings and any past apprehended violence order proceedings, and/or the criminal proceedings against either parent.

16. The Court notes that Z has been referred to D Health Centre for a paedriatician; and the Court requests that the paediatrician consult with both parents about the child’s history, and inform both parents of treatment and recommendations.

17. The mother shall be at liberty to contact and receive information and reports about treatment from any medical or allied health professionals attended by the children and this order shall be authority for her to do so.

18. Neither party is to denigrate the other party in the presence or hearing of the children and shall use their best endeavours to ensure no other person does so.

19. Proceedings listed for mention on (3 months).

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4668 of 2018

Ms Panelli

Applicant

And

Mr Panelli

Respondent

And

Independent Children’s Lawyer 

REASONS FOR JUDGMENT

1. These are oral reasons in proceedings SYC4668/2018, relating to proposed Interim Consent Orders signed by the parties on 14 July 2020. These proceedings are parenting proceedings concerning three children; X, born in 2011; Y, born in 2013; Z, born in 2015. I will refer to them collectively as “the children”.

2. These proceedings were listed for a final hearing to commence on 13 July 2020. It was beyond argument that the evidence in the proceedings demonstrated a long and most unhappy history of conflict between the parents.  For the purpose of this judgment, it is of some significance that the report of the single expert, Dr B, was not issued and made available to the parties until Friday 10 July 2020 (an updated version was sent to chambers on 13 July 2020); that is, only a few days prior to the commencement of the final hearing.

3. Accordingly, although the parties have taken steps to make the matter ready for final hearing, the absence of expert evidence, until such a short time prior to the commencement of the trial, meant that they were unable to complete their preparations while taking account of expert evidence. 

4. Dr B’s report is comprehensive. It highlights a truly awful situation in which the children have found themselves over the last several years.  It is unnecessary for the purpose of these reasons to go into any great detail.  However, I note that they have not seen their mother since February 2018.  They have been in their father’s sole care since then.

5. The father is over 60 years old, and I accept he has done his best to provide for the children while they have been in his sole care. However, the children, according to the report of Dr B, continue to speak in derogatory and fearful terms about their mother. They say they do not wish to spend any time with her.

6. As Dr B pointed out in her report, she was unable to observe the children with the mother in preparing her report, even though arrangements had been made for this to occur. It is unnecessary for me to detail the reasons why Dr B was unable to observe the children with the mother; the fact is that she was not able to do so.

7. In her report, Dr B expressed the view that the children have insecure attachments, and the absence of their mother from their lives could well have long-term adverse consequences for them. 

8. When the matter was called on for final hearing, Counsel for the mother indicated that in light of Dr B’s report, which the parties had but two days to consider, interim orders may in fact be more beneficial for the children rather than final orders at this stage.

9. The Independent Children’s Lawyer submitted, with some force, that the history of this matter made it imperative that a final outcome should be achieved as soon as possible, and that would be in the best interests of the children. 

10. In her report at paragraph 173, Dr B opined as follows:

    It is unfortunate that the children were not able to be observed with their mother, and that there has been no opportunity for this to happen.  While Mr Panelli takes objection to any suggestions that he is obstructing the children from seeing their mother, he is pivotal in the matter moving forward.

11. Then, at paragraph 174, Dr B further says:

    This family may benefit from engaging with a family therapist who specialises in family law.  It is only by exploring and challenging any negative views about each other and reflecting upon their own parenting behaviour that they are likely to find a way to respect each other as parents and improve their capacity to see the worth of the other in their children’s lives.  Court orders, per se, will not achieve this end, and it is only likely to lead to more litigation.  The prognosis for their children, if the current trajectory continues, is unfortunately dismal.

12. Rather than commencing the trial on 13 July 2020, I permitted the parties some time to engage in discussion and negotiation, taking account of the views expressed by Dr B, and with the assistance of an experienced Independent Children’s Lawyer and Counsel. 

13. Ultimately, the parties have agreed upon a set of proposed interim orders consistent with Dr B’s recommendations. Dr B’s recommendations are found at paragraphs 205 to 213 of her report, and they are as follows:

    [205] It is recommended that the parties work on a more collaborative relationship if there is any hope of them being able to exercise shared parental responsibility. That may be an issue they explore if they were to engage with a family therapist. Otherwise, the Court may need to consider granting sole parental responsibility to the primary care giving parent.

    [206] It is recommended that the children continue to live with their father.

    [207] It is recommended that the parties engage with a family therapist who specializes in family law to assist them with facilitating a reintroduction of the children to their mother with the view of them spending time with her.

    [208] Once a re-introduction has been affected, it is recommended that the children spend time with their mother initially in therapy and/or supervised setting and then for incrementally longer periods of unsupervised time.

    [209] It is recommended, contingent on the progress of the progress of therapy proposed in paragraph 207, that the children ultimately spend overnight time, no less than alternate weekends with their mother. 

    [210] It is recommended that both parents be involved in the children’s future medical and educational including therapy interventions.

    [211] It is recommended that a comprehensive paediatric assessment be undertaken for Z to ascertain her developmental needs and best intervention strategies.

    [212] It is recommended that neither party nor significant others physically discipline the children.

    [213] It is recommended that neither party nor significant others denigrate the other or significant others to the children or involve the children in any discussions pertaining to the adult dispute.

14. In the circumstances in which the Court presently finds itself, the adjournment of a five day final hearing is not something that can lightly be entertained, but there is no room for debate that there is no expert, and little other, evidence presently available, to enable the Court to form any sensible view about if and how the relationship between the children and their mother could be rehabilitated, and how they may begin spending time with her in a manner which will not expose them to the risk of further psychological harm.

15. I am persuaded that the only way in which an evidentiary platform can be responsibly created, upon which the Court can then act for the purpose of making final orders, is by the parties engaging in the forms of family therapy and other therapy as recommended by Dr B, so as to give her an opportunity to observe the children with their mother.

16. Accordingly, I am prepared to embrace the proposal put forward by the parties to adjourn the final hearing and make the detailed proposed interim orders. I acknowledge that the parties must have overcome entrenched feelings of antipathy towards each other in order to progress this matter on a sensible basis in the best interests of their children. To that extent, they are to be commended.

17. The Court also acknowledges that the intercession of Counsel has been of great utility in enabling the parties to perceive what is a sensible way forward, in a very difficult situation. 

18. Accordingly, I propose to make the interim orders as proposed by the parties. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 14 July 2020.

Associate:

Date: 29 July 2020