PARISI & ZEIN

[2020] FamCA 587

FAMILY COURT OF AUSTRALIA

PARISI & ZEIN [2020] FamCA 587

FAMILY LAW – PARENTING – interim parenting orders proposed by ICL – family report writer recommending separating children aged 13 and 11 – mother opposing those orders – ICL and father supporting orders separating siblings – father living an hour’s drive from children – father not participating in parenting – mother shouldering the whole burden – eldest child’s behaviour uncontrolled – changeovers problematic in COVID-19 pandemic.

FAMILY LAW – PRACTICE AND PROCEDURE – untested evidence – family violence alleged – case crying out for urgent trial – urgent trial ordered.

Family Law Act 1975 (Cth) s 102NA

Banks & Banks [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Marvel v Marvel (2010) 43 Fam LR 348
Redmond & Redmond [2014] FamCAFC 155
Salah & Salah (2016) 56 Fam LR 299
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Parisi

RESPONDENT: Ms Zein

INDEPENDENT CHILDREN’S LAWYER: V M Family Lawyers

FILE NUMBER: MLC 1054 of 2019

DATE DELIVERED: 22 July 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Wilson J

HEARING DATE: 16 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Not applicable

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Not applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: V M Family Lawyers

Orders

1. The requirements of s 102NA(2) of the Family Law Act will apply to any cross-examination during the trial of this proceeding.

2. I fix this proceeding for trial before the Honourable Justice Hartnett on 7, 8 and 9 December 2020.

3. On or before 2pm on 24 July 2020 the independent children’s lawyer must email my chambers with the completed trial directions.

4. General liberty to apply is reserved.

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 Parisi & Zein 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 MELBOURNE

FILE NUMBER: MLC 1054 of 2019

Mr Parisi

Applicant

And

Ms Zein

Respondent

REASONS FOR JUDGMENT

Introduction

1. Compounding the complexities of the interpersonal relationships in this case are the very considerable logistical obstacles created by the current COVID-19 pandemic.  The father lives on the outskirts of metropolitan Melbourne whereas the mother and the two children live in an inner suburb.  In addition, the eldest child who is currently 13 years of age is exhibiting concerning behavioural traits creating for each parent major problems when that child is in his or her care.

2. Very sensibly, Mr Finn, the independent children’s lawyer, sought professional advice on the best way forward.  A very experienced clinical psychologist, Dr B provided a report dated 14 July 2020.  In it Dr B recommended the separation of the two siblings.  That unusual recommendation caused me to ask for the views of each parent (both unrepresented) about the propriety of the approach recommended by Dr B.

3. With commendable cooperation both the mother and the father provided their responses by email following a telephone directions hearing convened by me on 16 July 2020.

4. The father supported Dr B’s recommendation saying that the children need some time apart and some respite from the existing conflict in the family home.

5. The mother doubted the accuracy of Dr B’s report, contending that the report was inaccurate, that Dr B was not impartial and that the report did not reflect what was really happening in the children’s and the parents’ lives.  The mother said Dr B did not address in her report the mother’s concerns about family violence and the source of the children’s trauma.  The mother, a qualified professional whose analytical skills cannot be doubted having regard to her email of 16 July 2020 in response to Dr B’s report, provided a detailed response to all of the key recommendations and comments provided by Dr B.

6. In essence, the mother opposed the most significant recommendation made by Dr B, namely, separating the children.

7. Against that backdrop I have been asked to make certain parenting orders on an interim basis.  The ICL supports the recommendations made by Dr B.

Synopsis

1. For the reasons that follow, I will not make the order separating the children.  Instead I make orders fast-tracking this case to trial.

Relevant factual circumstances

1. This proceeding was commenced last year and has not travelled particularly far on the path to trial.  Allegations and counter allegations have been made by each parent.  Having regard to the observations in such cases as Marvel v Marvel,[1] SS & AH,[2] Deiter & Deiter,[3] Eaby & Speelman,[4] Banks & Banks,[5] Salah & Salah[6] and Redmond & Redmond[7] it is undesirable for me to express any findings of fact at this stage of the litigation.  It is also necessary for me to make any findings with great circumspection.  That is for the simple reason that this is an interim application, the evidence is in an embryonic state of evolution and nothing has been tested by cross-examination.

   [1] (2010) 43 Fam LR 348.

   [2] [2010] FamCAFC 13.

   [3] [2011] FamCAFC 82.

   [4] [2015] FamCAFC 104.

   [5] [2015] FamCAFC 36.

   [6] (2016) 56 Fam LR 299.

   [7] [2014] FamCAFC 155.

2. That said, even at this early juncture, the circumstances presenting to the parents on this parenting application raise serious issues that must be addressed immediately in the best interests of the two children.

3. Before addressing the mother’s criticisms of Dr B’s report, it is utile to record the more important matters canvassed by Dr B.  I recognise that the mother says that many of the matters recorded below have been produced by defective reasoning undertaken by Dr B or by only a superficial consideration of relevant material.  I also recognise that at the trial of this proceeding the mother is likely to challenge Dr B on a large number of matters in Dr B’s report.

4. Dr B reported in relation to the eldest child, 13 years of age, and the youngest child, 11 years of age.  In précis form, Dr B stated –

   a)she was concerned that the eldest child needs to be kept safe and that the eldest child’s current trajectory indicates behaviour leading to the juvenile justice system;

   b)the eldest child is reluctant to spend time with her father at his residence;

   c)the father told Dr B that the eldest child was punching the youngest child, screaming in public and not caring about the impact of her behaviour on others;

   d)historically, the children’s parents separated in October 2018 (according to the mother) or December 2017 (according to the father);

   e)from January 2019 a shared care regime of 50/50 had operated;

   f)an interim intervention order was made on 5 March 2019 after the eldest child had been removed from the family home;

   g)a fellow student obtained an IVO against the eldest child after an assault at school, that IVO expiring in September 2020;

   h)the father works as a tradesman but is able to work only two to three days a week on account of what Dr B said was “physical, mental and emotional capacity and the current interim parenting orders”;

   i)the mother works full-time as a professional; and

   j)the eldest daughter does not want to live at the father’s address.

5. Dr B reported that the mother and the eldest daughter engage in conflict which could get physical at times.  Dr B also reported that the father’s current living arrangements in a town an hour’s drive from Melbourne has impacted on his capacity to respond to the crises (plural) in relation to the children.

6. So far as risks were concerned, Dr B identified several.  They included –

   a)the father’s physical location on the outskirts of metropolitan Melbourne making him unable to assist in day-to-day issues for the children;

   b)the eldest daughter’s conduct is affecting the youngest child;

   c)the parents are unable to control the behaviour of the eldest child;

   d)the mother is “reported to be highly emotionally reactive” (Dr B’s words, although she did not say on what material she based her statement expressed in the passive tense “is reported to be”);

   e)the mother said the eldest child physically struck the mother and pulled the mother’s hair;

   f)the mother alleged the father had physically struck the eldest child resulting in that child suffering trauma;

   g)the father reported that on two occasions he had been required to call police as a result of the eldest child’s aggression and violence; and

   h)the father reported that the children are at mental risk while in the mother’s care.

7. Dr B addressed each parent.  So far as the father was concerned, Dr B said the following of the more important matters –

   a)the father did not reflect at Dr B’s interview with him on his anger issues that led to the IVO;

   b)he had mental health issues;

   c)he told Dr B the mother was alienating the children;

   d)the father reported panic attacks, feelings of dizziness, passing out while driving and psychological stress yet he has not sought medication for any of those matters;

   e)the father said he grew up in a traditionally ethnic family environment, that he left school at year 8 and that he described himself as “a beaten down dog” (words Dr B attributed as being the father’s own words);

   f)he told Dr B the children had described to him their confusion about why he left the family home; and

   g)he said he was engaged with the children but that his poor mental health and physical proximity were barriers to his being involved on a daily basis.

8. Clinically, Dr B considered the father’s psychopathological indicators revealed anxiety and a major depressive disorder.

9. Dr B conducted an evaluation of the mother as well.  So far as may be presently relevant, the following of the more important issues raised by Dr B emerged –

   a)the mother left Country C aged four, arriving in Country D and then Australia at age six;

   b)she is the youngest of eight children;

   c)she obtained two degrees from university in respect of which her family is very proud of her;

   d)she currently works full time as a professional ;

   e)Dr B described the mother as energetic, engaging and passionate;

   f)the mother denied experiencing any anxiety, depression or mental health issues;

   g)the mother said she was angry at herself for what the mother said involved her “putting up with him” for 18 years;

   h)the mother took the view the father did not want the children;

   i)the mother reported to Dr B that the father’s assertion that he is unable to assist further with the eldest daughter’s behaviour is a way (to use the mother’s words) “to hurt and control” the mother;

   j)Dr B reported that the mother said the father did not want to see the children;

   k)Dr B said the mother reported that the father described the children as being “vagina’s with skirts” (sic); and

   l)Dr B reported that the mother attributed the source of conflict to be the mother’s desire to return to work compared with the father’s wish for her to stay at home with the children.

10. Dr B conducted psychometric testing on the mother.  From those results the mother showed isolated signs of depression.

11. The father alleged to Dr B that the mother bit, hit or kicked the father.

12. The mother alleged to Dr B that the father called the mother names, each of which was used in paragraph 25 of Dr B’s report and need not be repeated here.

13. The father denied perpetrating family violence towards the mother, according to paragraph 25 of Dr B’s report.

14. Both parents alleged one form of family violence or another against the other parent.

15. So far as her observation of the children were concerned, Dr B provided a detailed snapshot, albeit one with which the mother took exception in parts.  The following is necessarily a truncated version of Dr B’s report.  In no special order of significance, Dr B reported as follows –

    a)the eldest child described the writer of a child inclusive conference memorandum as “a bitch”;

    b)both children “appeared to want to identify with a gangster-style hard exterior” (Dr B’s words in paragraph 28 of her report);

    c)they were also young, lost and without significant role models;

    d)the eldest child had moved schools recently, a transition that did not go well and she exhibited school refusal and she abused a teacher;

    e)the eldest child is unable to control her impulse to eat or to express her anger;

    f)the eldest spoke to Dr B for 40 minutes;

    g)prior to her parents’ separation the eldest child had been a state swimmer training three mornings per week with competitions on the weekend yet she stopped that activity late in 2019;

    h)the eldest child spoke of the mother as being “over the top” (words I assume Dr B attributed to being said by the eldest child);

    i)the eldest child reported to Dr B that neither she nor the mother could control her anger;

    j)Dr B described an incident of violence towards another student, how the eldest child caused the other student’s nose to bleed after which Dr B reported that the eldest child experienced what she called “a hard time” at school;

    k)the eldest child told Dr B that she (the child) wished her parents’ separation had not occurred;

    l)Dr B said the eldest child is easily psychologically aroused and distressed and was heightened due to a highly reactive and emotionally charged home life with the mother;

    m)the eldest child has no self-control, according to Dr B;

    n)the eldest child’s peer group is poor;

    o)the eldest child’s sleeping patterns are poor; and

    p)the eldest child does not wish to live with the father and wished he would move closer.

16. The youngest child was also the subject of careful assessment by Dr B.  Some of Dr B’s observations were as follows –

    a)since court orders in May of this year the youngest child enjoys going every week to her father’s home in regional Victoria but does not wish to be removed from her connections;

    b)according to Dr B, the youngest daughter would do whatever is best for her parents;

    c)Dr B reported that the youngest child had said that the eldest child did not want to go to the father’s home each week;

    d)the youngest child and the mother enjoyed a close relationship;

    e)the youngest child told Dr B that the mother needed the two children to go to the father’s home each weekend to give the mother a break; and

    f)the youngest child displayed no problems according to psychometric testing.

The recommendations of Dr B

1. Dr B made a collection of long term recommendations.  However, her recommendations having a short term relevance were few.  They were as follows –

   a)that the parents settle their disputes as a matter of urgency;

   b)that the parents have shared parental responsibility for the children;

   c)the parents do all things necessary for the father to reside back in inner suburbs of Melbourne;

   d)the children to spend time with the parents in a shared care parallel parenting regime;

   e)the youngest child spend time with each parent on a week about arrangement;

   f)the eldest child decide herself where she will live but she must abide curfew arrangements;

   g)the children be separated until the eldest child’s conduct is contained; and

   h)the children be with alternate parents each weekend.

The ICL’s proposal

1. In debate before me on 16 July 2020 Mr Finn, the ICL, quite frankly conceded that he was at a loss in terms of sensible recommendations following Dr B’s report.  He proposed interim orders in the following terms –

   UNTIL FURTHER ORDER

   1.That all previous parenting orders in relation to the children namely X born in 2006 and Y born in 2009 (“The children”) be discharged.

   2.That the child “X” live with the mother.

   3.That the child “Y” live with the father and that a changeover into father’s care be effected on the 23^rd July 2020 with the assistance of a professional supervisor employed by F Services at Y’s current school or G Centre.

   4.That any costs associated with the service provided by F Services shall be borne by the father and paid in advance.

   5.That both children spend time with the father each alternate weekend commencing on the 30^th July 2020.

   6.That there be no telephone or electronic communication between the children unless agreed to in writing by the parties including the Independent Children’s Lawyer.

   7.That within 7 days the Independent Children’s Lawyer make a notification to the Department of Human Services with a request that the family be engaged with M Services.

   8.That the mother be, and is hereby restrained from instructing or travelling to H Services, and instructing any psychiatrist for one or both of the children.

   9.That as soon as practicable, and or within the next 7 days the father attend upon a therapeutic psychiatrist as nominated by the Independent Children’s Lawyer and recommended by Dr J.

   10.That the Independent Children’s Lawyer be granted leave to provide the psychiatrist as referred to in paragraph (9) herein.

   11.That both parties be and are hereby restrained from taking the children to any other health professional unless agreed to in writing with the Independent Children’s Lawyer.

   12.That as soon as practicable the child attend upon L Services on referral from her general medical practitioner for an urgent psychiatric assessment or attend upon K Centre to undertake an urgent psychiatric assessment and otherwise refer the child to a paediatric psychiatrist for ongoing therapy to deal with X’s conduct disorder.

   13.That both parties be equally responsible for the medical costs on gap payment of X’s medical costs.

   14.That Y attend upon a therapeutic psychologist as nominated by Dr B and otherwise the ICL be granted leave to provide a copy of B report.

   15.That both parties be equally responsible for the medical costs on gap payment of such psychologists fees.

   AND THE COURT NOTES

   1.X refuses to spend time with her father, is rebellious and combative towards mother and father.

   2.On the next return date consideration will be given to the success or otherwise of the regime.

2. Self-evidently, the ICL’s proposal proceeded on the basis that the children were separated.

3. While removing the youngest child from the presence of the eldest child reduced any risk to the youngest child from the aggressive behaviour of the eldest child, by having the youngest child live with the father several consequences followed.  First, the youngest would live nowhere near her existing school.  Second, the father has said he does not want the children.  Third, his mental capacity is compromised at present and his ability to properly care for the youngest may well be in doubt.  Fourth, any such removal necessarily takes the youngest child from her primary carer, the mother, with whom the youngest child has no adverse relationship.  Fifth, such a step is undertaken merely to accommodate the consequences of the unacceptably bad behaviour of the eldest child.

1. In my view the ICL’s proposal is erroneous.

2. The mother has sought an order for sole parental responsibility.  She points out –

   a)she has provided the children with a safe environment, stability and consistency;

   b)the father makes no effort to co-parent; and

   c)the father has failed to act protectively towards the eldest child.

Determination on this interim issue

1. In my view this situation cries out for close and careful judicial attention.

2. In view of the allegations of family violence made in this case, and in view of the fact that the parents are not legally represented, I propose to make an order under s 102NA of the Family Law Act for the parents to be legally represented.

3. I propose to fix this proceeding for trial as a matter of urgency.  The issues in this case need to be determined without delay.  All issues need to be tested at trial.  The ICL will advance the interests of the children separately from the representation of the parents. 

4. The urgency of this proceeding calls for a trial this year.  My next available trial dates are in April 2021.  In consultation with the Honourable Justice Hartnett, the case management judge, her Honour graciously offered to accommodate a trial of this proceeding in December of this year.  With these reasons I have provided standard pre-trial directions that will require completion.  Updated trial affidavits will be among the more important matters that need addressing.  During the trial Dr B will most likely be cross-examined during which her theories can be tested and examined.

5. Doing the best I can to assess the likely duration of the trial of this proceeding, it seems to me to be sensible to allocate a three day trial.  I fix 7, 8 and 9 December 2020 for the trial of this proceeding before Hartnett J.  I thank her Honour for assisting to resolve this difficult case.

6. There remains the question of the children’s arrangements between now and the trial.  I shall not make orders as proposed by Dr B and the ICL at this stage.  To do so would orchestrate undue chaos in the children’s lives.  The status quo must prevail.  All orders presently in force remain in force until the trial.

7. The present COVID-19 pandemic is creating its own complications for this family.  I recognise the burden under which the mother is labouring.  I also recognise how the father, by sheer dint of his distance from the mother and the children, is removed from the day-to-day burden under which the mother is operating.  Any uncooperative attitude must stop at once in the interests of getting this case on for trial and doing what must be done to achieve that end. 

8. I request Mr Finn to take the running of completing the directions timetable that has been provided.  He should return those to my chambers by 2pm Friday 24 July 2020.

9. General liberty to apply is reserved.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 22 July 2020.

Associate: 

Date:  22 July 2020