Paretino and Paretino

[2016] FamCA 261

FAMILY COURT OF AUSTRALIA

PARETINO & PARETINO [2016] FamCA 261

FAMILY LAW – CHILDREN – Short term interim parenting – Allegations of family violence, mental health concerns, substance misuse – Issue of how long the father’s time with the children should be supervised – Need to protect the children from harm – Orders made as sought by the mother.

SS & AH [2010] FamCAFC 13
George & George [2013] FamCAFC 182
Deiter & Deiter [2011] FamCAFC 82

APPLICANT: Ms Paretino

RESPONDENT: Mr Paretino

FILE NUMBER: PAC 906 of 2016

DATE DELIVERED: 19 April 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam

HEARING DATE: 11 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gardiner

SOLICITOR FOR THE APPLICANT: Slater & Gordon

COUNSEL FOR THE RESPONDENT: Mr Sansom

SOLICITOR FOR THE RESPONDENT: Abrams Turner Whelan Family Lawyers

Orders

1. The children B born … 2007 and C born … 2011 live with the Mother.

2. The children spend time with the Father as follows:

   a.   From 10.00am until 1.00pm on 17, 24 April and 1 May 2016;

   b.   From 10.00am until 1.00m on 7 May 2016;

   c.   From 10.00am until 4.00pm commencing from 15 May 2016 and continuing each Sunday thereafter.

3. The time which the children are to spend with the father in Order 2 shall at all times be supervised by the father’s sister, Ms D Paretino and in the event that the said supervisor should be unable or unwilling to act as supervisor on any occasion then the father’s time shall be suspended on such occasions.

4. All changeovers are to occur at the mother’s residence and the supervisor is to be present at changeover.

5. The father is restrained from consuming alcohol or taking any illicit drugs and other substances at all time whilst the children are in his care and for at least 48 hours prior to the commencement of such times.

6. The father have exclusive use and occupation of the property at E Street, Suburb F commencing 2 May 2016 and noting that the property is in the father’s sole name and unoccupied and that it may be inconsistent with an interim and/or provisional AVO. 

7. An appointment with a Family Consultant for the purposes of a Children and Parents Issues Assessment as part of the Child Responsive Program has been arranged for 18 July 2016 and the usual listing and time frame will follow that event.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 906  of 2016

Ms Paretino

Applicant

And

Mr Paretino

Respondent

REASONS FOR JUDGMENT

Introduction

1. A father in parenting proceedings concerning two little girls aged eight and five seeks to spend time with his children on an interim basis.  The parents have reached agreement that the children, who live with their mother, are to spend time with their father and that it be supervised by the children’s paternal aunt. The father seeks that this supervision only be required for four initial periods of time and thereafter that he have unsupervised time with the children each alternate weekend from 9 am Saturday to 5 pm Sunday. The mother proposes that time with the father increase after four weeks but remain supervised.

2. The father commenced proceedings on 1 March 2016 and the interim parenting application was listed for 11 April 2016. An appointment with a family consultant for the purposes of a Children and Parents Issues Assessment as part of the Child Responsive Program is not able to be arranged until mid-July 2016. In these circumstances, I was required to make an assessment of the issues of risks associated with the father’s care raised in the mother’s affidavit without the assistance of a family consultant’s Memorandum, or any documents other than those provided by the parties annexed to their affidavits.

3. On 11 April 2016 I made short term interim parenting orders in accordance with the Minute of Order proposed by the mother and indicated that I would provide reasons at a later date. These are the Reasons for those orders.

Background

1. The mother who is 43 and the father who is 45 were married in 2006. They have two children, B who was born in 2007 and is currently eight and C, who was born in 2011 and is currently five.

2. The mother ceased her employment prior to the first child’s birth and has not returned to paid employment, other than within the family business. She has been the primary carer for the children.

3. The parents separated on a number of occasions throughout the marriage, but finally separated in November 2015. The children have lived with their mother since separation and the father has spent no time with them throughout that four and a half month period.

4. The parents’ relationship was volatile and characterised by verbal abuse and heated arguments. There were occasions on which police were called to the family home.

5. The father suffers from a mental condition and has, on occasions been admitted into specialist mental health facilities to receive treatment, including for a three-week period in February 2015. Approximately one month prior to this admission the father had placed a noose on a beam in the garage at the family home.

6. There were two incidents of significance in 2015. On 3 May 2015, a provisional Apprehended Domestic Violence Order (ADVO) was made for the protection of the mother against the father, which included conditions that the father not go within 100 m of the home and not approach or contact the mother by any means except for the purposes of counselling, conciliation or mediation under the Family Law Act. The order was subsequently made as an interim order in a Local Court in more limited terms, which continued until 22 September 2015 when the matter was listed for final hearing. The mother did not attend court on that date and the ADVO application was dismissed.

7. There was a second incident between the parties on 26 and 27 November 2015, which also resulted in an ADVO being issued against the father for the protection of the mother and has been continued by a court on an interim basis. The father was also charged with assault of the mother arising from that incident. The hearing of the charge and ADVO application, which was defended by the father, is currently pending before a Local Court. 

8. Following the November incident, which resulted in the parties’ final separation the mother continued to live in the former family home with the children but subsequently moved with them to her parents’ residence. 

9. Since separation the children have not spent any time with the father, other than for a short time on 9 March 2016, when the mother parked the car in the father’s street and permitted the children to spend time with him briefly. The father has also had very limited contact with the children by way of some telephone calls since separation. As I understand it, the mother has not permitted any other contact.

10. The mother proposes that she have sole parental responsibility for the children on an interim and final basis, that they live with her and spend time with the father under supervision of a children’s contact service for at least two hours per fortnight, also on an interim and final basis. The mother also proposes certain conditions on the time the father is to spend with the children, including providing details of treating health professionals, including in particular a psychiatrist and that he be restrained from taking illicit substances and consuming alcohol prior to and while having contact with the children. The father seeks that the parties have equal shared parental responsibility for the children and that they live with the mother and spend substantial time with him. On an interim basis he proposes the children spend four consecutive six hour periods with him supervised and then that the children live with him on each alternate weekend from 9 am Saturday to 5 pm Sunday.

The mother’s concerns

1. The mother raises a number of matters which she says necessitate supervision of the father’s time. She contends that there has been a long history of family violence perpetrated by the father against her, and that the children have witnessed many of these incidents. She says that there have been approximately three occasions on which B has telephoned police due to the father’s behaviour and that police have attended in response to those calls. She says there have been other occasions when B has called the maternal grandmother after an incident involving the father. She describes the father’s behaviour as extremely distressing for the children who have become scared and upset when they have witnessed his abuse.

2. The mother says that in the course of the incident in May 2015, the father verbally abused her, slapped her and head butted her in the face in the presence of the children. Following this incident she called police and that as a result, an ADVO was issued for her protection. Her explanation for failing to attend court when the application was listed for final hearing is that she did not understand that she was required to attend. The father does not give an account of this incident in his affidavit except to say that he had “an argument which resulted in [the mother] calling the police” and says that she did not attend court for the ADVO as she did not want it as the parties had reconciled.

3. The mother says that in the second incident precipitating separation in November 2015 the father was verbally abusive towards her and kicked her in the back causing her to fall over. The mother says that on the following day, the father pinned her to the fridge with one hand around her neck and the other pushing against her face while he verbally abused her and that both children were present and witnessed the incident. On this occasion she says B called police who later attended at the family home. The father’s version of this incident in his affidavit is quite different and he describes the mother as becoming very angry and striking him with a knife sharpening tool and punching him in the head. He denies any attempt to choke, strangle or pin the mother to the wall and says that it was the wife who called police. He does not deny that the children were present during this incident and that he had been charged with assault.  The father is challenging the charge and the hearing of that matter is pending.

4. It is the mother’s position that the father’s controlling behaviour and angry outbursts are associated with his mental health conditions. She describes in her affidavit outbursts, “fits of rage” and verbal abuse which cause her to feel extremely intimidated and concerned for her personal safety.

5. In relation to controlling behaviour, it is the mother’s belief that devices including mobile telephone, email accounts and computers used by her have been the subject of unauthorised access which she has reported to various agencies including the police. She says that in December 2015 she also learnt from the security company which provides back-to-base monitoring for the home security system that there had been tampering with that system. The father denies tampering or interfering with electronic devices or the security system at the home.

6. It is also the mother’s case that as a result of the father’s mental health condition which she describes as schizophrenia and bipolar disorder, his parenting capacity is affected particularly when he is non-compliant with the advice of his treating health professionals to manage his condition. She also contends that this condition is exacerbated by the father’s alcohol and illicit drug use, which causes him to behave erratically and aggressively.

7. The father does not dispute that he suffered from a mental condition and spent time in a mental health facility in February 2015. He says that he has been diagnosed with depression associated with the breakdown of his marriage and that following his discharge from hospital his psychiatrist indicated that his state of mind had significantly improved.

8. The mother claims that the father uses illicit drugs and that she has on occasions found marijuana hidden in the home and has come across what she believes is methamphetamine. She says there have been other instances where the father has been noticeably affected by drugs or alcohol and that when she confronted him about his drug use in late 2014 he admitted to using cocaine. The mother contends that she found what she believed to be a glass pipe and other items for the use of consuming crystal methamphetamine in October 2015 in the home. She also contends that the father drank heavily throughout the marriage, which affected his behaviour.

9. The father denies consuming alcohol to excess during the relationship and denies using illicit substances other than occasional marijuana use.

The short term interim orders

1. Although interim parenting hearings proceed on the basis of the uncontested facts, the authorities make it clear that the Court may have some regard to the matters in dispute[1] and must make some assessment where those contested facts relate to risk.

   [1] See SS & AH [2010] FamCAFC 13; George & George [2013] FamCAFC 182; Deiter & Deiter [2011] FamCAFC 82.

2. As previously indicated, in making any such assessment I am not assisted by a Memorandum from a family consultant dealing with matters arising from the Children and Parents Issues Assessment, which would include matters of risk.

3. In relation to the risk said to arise from the father’s consumption of alcohol and illicit drugs, although he disputes the mother’s contentions, the father does agree to the order proposed by the mother restraining him from consuming alcohol or taking illicit drugs or other substances while the children are in his care or for 48 hours prior.

4. The issue of risk said to arise from the father’s mental health condition and non-compliance with medication is unable to be assessed on the limited information available. However, it is to be noted that on the short term basis the mother did not seek an order that he attend upon a particular psychiatrist and comply with medication, so I infer that she does not regard it as a matter of particularly significant risk on this short term interim application.

5. In my view at this stage the clearest risk factor relates to the children’s exposure to family violence. The father agrees that the relationship between he and the mother was volatile and that both parties engaged in aggressive behaviour. He attaches a text message interchange between the parties, which indicates that the mother engages in insulting and abusive communication with him. Most concerningly, although the father does dispute the mother’s evidence that the child B telephoned police during the November 2015 incident (as he said the mother made this call), he does not take issue with her evidence that the child has called the police on about three occasions. The father also does not give any account of the incident in May 2015 to challenge the mother’s evidence of a quite serious physical assault and does not challenge her contention that this incident occurred in the presence of the children. It is also not in dispute that it is he who was charged following the November 2015 incident and the ADVO was issued for the protection of the mother as a result of this incident. He also does not contest that this incident occurred in the presence of the children.

6. Each of the parties clearly has confidence in the paternal aunt who has agreed to supervise the father’s time with the children and has given the appropriate undertaking. In circumstances where there seems to be a need for supervision at the very least at the time of changeover where there is a likelihood that the children will be exposed to conflict between their parents, the father’s proposal that his time with the children be unsupervised after four weeks appears to provide inadequate protection for the children from the harm associated with exposure to family violence. Further, in circumstances where the children have spent no time with their father for five months it is, in my view, premature to move to unsupervised and overnight time, especially where some of the risk factors have been unable to be assessed.

7. The court will be in a better position to make a more considered assessment of the various risk factors after a Memorandum from the Children and Parents Issues Assessment is available to the court. The parties will also be in a position to obtain other relevant documentation such as in relation to the father’s mental health condition and the outcome of the criminal charges will also be known at a later stage.

8. On the limited information available to me the orders proposed by the mother will provide some support for the fostering of the children’s relationship with their father and importantly an appropriate level of protection for them. For these reasons the orders were made as proposed by the mother.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 19 April 2016.

Legal Associate:

Date:  19 April 2016