PARNELL & LEOTTA

[2012] FamCA 1155

FAMILY COURT OF AUSTRALIA

PARNELL & LEOTTA [2012] FamCA 1155

FAMILY LAW – CHILDREN – contravention application made by the mother –application dismissed as no contravention of orders by the father – mother did not regularly attend counselling for 12 months as ordered, therefore the orders did not provide for the child to spend unsupervised time with the mother – father had no case to answer and no need to adduce evidence

FAMILY LAW – Costs – mother to pay the fathers costs incidental to these proceedings

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 21.08

APPLICANT: Ms Parnell

RESPONDENT: Mr Leotta

FILE NUMBER: NCC 625 of 2008

DATE DELIVERED: 13 December 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 13 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr Potkonyak, Capellia Legal

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Ms Gillard as agent for Central Coast Family Law

Orders

1. The Application-Contravention filed 18 June 2012 is dismissed.

2. By consent, the applicant mother shall pay the respondent fathers costs of and incidental to these proceedings, assessed in the sum of $750 inclusive of GST, within three months of the date of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Parnell & Leotta 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 NEWCASTLE

FILE NUMBER: NCC 625 of 2008

Ms Parnell

Applicant

And

Mr Leotta

Respondent

Ex tempore

REASONS FOR JUDGMENT

1. On 13 May 2011, Justice Ryan delivered reasons for parenting orders that Her Honour made in respect of the only child of the applicant mother and the respondent father. The orders provided for the child to live with the father and to spend time with the mother under a gradually expanding regime that entailed eventual dispensation of supervision and increased time with the mother. 

2. On 18 June 2012, the mother filed an Application alleging the father contravened those orders without reasonable excuse. The respondent father refuted the allegation. That is the contested application now under consideration.

3. To prosecute the Application the mother relied upon only her affidavit filed on 18 June 2012, upon which she was cross-examined shortly, and a letter between the parties’ solicitors dated 10 December 2012, which was admitted into evidence consensually and marked Exhibit M1. 

4. The respondent father did not file any evidence in rebuttal of the contravention allegation pending the close of the mother’s case, consistently with the practice established by Rule 21.08 of the Family Law Rules.

5. The mother alleges the father contravened Order 4(b) made on 13 May 2011 by his failure to produce the child to the mother at 5:00 pm on 18 May 2012 at the L Town Children’s Contact Centre. 

6. Order 4(b) made by this Court on 13 May 2011 provides as follows:

   Provided the mother has, for 12 months from the date of these orders, regularly attended counselling with a psychologist or allied health professional to whom she has provided copies of [Dr E’s] reports dated 21 December 2009 and 18 February 2011 and a copy of the Court’s reasons for decision published the date of these orders her time with the child shall no longer be supervised and from the weekend after she has completed 12 months of therapy and for a further period of twelve (12) months she shall spend time with the child from 5:00 pm Friday until 5:00 pm Sunday in each alternate week.

7. There is no dispute that 18 May 2012 was indeed a Friday, nor that it was the first Friday following the expiration of 12 months from the date of the orders that were made on 13 May 2011. 

8. As would be apparent from recitation of Order 4(b), there were three pre-conditions to its implementation. 

9. The uncontested evidence adduced by the mother proved that she attended upon a psychiatrist, Dr H. Her first consultation with that psychiatrist occurred on 20 June 2011 and she had four further consultations with him thereafter, the last of which must have occurred on or before 15 February 2012.  The five consultations were, therefore, confined to a period of less than eight months. 

10. Dr H was provided by the mother with copies of Dr E’s earlier reports prepared in December 2009 and February 2011. Dr E was the single expert witness in the proceedings heard and determined by Justice Ryan.  There were some slight discrepancies in the dates of the reports referred to in Dr H’s letters to the mother’s solicitors, but I accept that they were references to Dr E’s reports referred to in Order 4(b).

11. I am also satisfied that Dr H was provided by the mother with a copy of Justice Ryan’s reasons for judgment, it being the “court document of 13 May 2011” referred to by Dr H in his letter to the mother’s solicitors dated 25 May 2012.  In such circumstances, two of the three pre-conditions stipulated by Order 4(b) were fulfilled. 

12. The third pre-condition, yet to be addressed, required the mother to regularly attend counselling with a psychologist or allied health professional for a period of 12 months after the orders were made on 13 May 2011.

13. As the father’s solicitors pointed out to the mother in their letter to her dated 2 May 2012, and as was again pointed out by those solicitors to the mother’s current solicitors in their letter dated 10 December 2012, she did not fulfil that condition. 

14. It is apparent from the letters provided by the mother’s psychiatrist to her solicitors, dated 15 February 2012 and 25 May 2012, that:

    a)Dr H did not agree with the single expert’s diagnosis of “borderline personality disorder” in the mother; and

    b)Dr H instead diagnosed a condition in the mother called “separation anxiety disorder”.

15. Given that Dr H disagreed with the single expert’s diagnosis, it may be safely presumed that he did not afford the mother any therapy to address borderline personality disorder.

16. Prior to the mother’s cross-examination, the evidence was silent altogether about the mother having received any form of counselling at all, even for the separation anxiety disorder diagnosed by Dr H. Even if counselling had been afforded to the mother, it was administered in no more than five sessions confined to a period of less than eight months.

17. However, as the mother admitted in cross-examination, her purpose in attending upon Dr H was for no reason but to “get a second opinion” in relation to any psychological affectation from which she suffered. The mother furthermore said in her re-examination that Dr H did not ask her to return to him after her final appointment with him.

18. It seems incontrovertible in the circumstances that the mother has received no counselling of any sort directed to the condition of borderline personality disorder diagnosed by the single expert witness in the former proceedings, which was apparently the foundation for Order 4 made by Justice Ryan.

19. The mother has not therefore proven that she has properly fulfilled the condition requiring her to regularly attend counselling for a period of 12 months, in which event the orders made by Justice Ryan on 13 May 2011 did not envisage progression of the parenting regime beyond Order 4(a), which provides for the child to spend only supervised time with the mother at a contact centre.

20. It follows that the mother has failed to prove the father’s contravention of Order 4(b) and her Application must be dismissed. The father’s submission that he has no case to answer, without his need to adduce evidence, is correct.

21. During the course of submissions it was apparent that the mother had even failed to prove the allegation that the father had failed to present the child to her at the contact centre at 5:00 pm on 18 May 2012. Certainly no admission of that failure was made by the father. That lacuna in the evidence would also have supported the “no case to answer” submission made on the father’s behalf had it been a component of his submissions.

22. I add one further comment in passing. It was contended for the father by his solicitors in their letter to the mother dated 2 May 2012 that the mother breached Order 4(a)(iii). That allegation plays no role in the dismissal of the Contravention Application as it is simply an unsubstantiated allegation. The mother has not admitted it and the father did not seek to prove it. 

23. For those reasons, I make the following orders.

    ORDERS DELIVERED

    RECORDED:  NOT TRANSCRIBED

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 13 December 2012.

Associate:

Date:  1 August 2013