Peretti and Bettini and Anor

[2008] FamCA 685

FAMILY COURT OF AUSTRALIA

PERETTI & BETTINI AND ANOR [2008] FamCA 685

FAMILY LAW – CHILDREN – Final parenting orders on an unopposed basis – 3 year old child to live with the paternal grandmother

APPLICANT: Ms Peretti

RESPONDENT: Mr Bettini

2^nd RESPONDENT: Mrs Bettini (Snr)

INDEPENDENT CHILDREN’S LAWYER: Mr D. Lampe

FILE NUMBER: MLF 1969 of 2006

DATE DELIVERED: 14 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 July 2008

REPRESENTATION

FOR THE APPLICANT: No appearance

COUNSEL FOR THE FIRST RESPONDENT: Mr K. Kappadath

SOLICITOR FOR THE FIRST

RESPONDENT:

John D Snodgrass & Associates

COUNSEL FOR THE SECOND RESPONDENT Mr P.A. Marchetti

SOLICITOR FOR THE SECOND RESPONDENT Collards

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Mr R.N. Hoult

INDEPENDENT CHILDREN'S LAWYER Lampe Family Lawyers

Orders

IT IS ORDERED:

1.That pursuant to section 65L of the Family Law Act 1975, the Manager of Child Dispute Services for the Family Court of Australia at Melbourne, at the request of either party to the proceeding, nominate a family consultant to supervise compliance by the parties with the parenting order made on this day and to render to any party such assistance as is reasonably requested by him/her in relation to compliance with, and the carrying out of, this Order, such supervisory counselling to be a period of two years and to be reportable.  However, no report be prepared unless a further application in relation to the child … born … September 2005 is filed whilst this order remains in force, the court orders that a report be prepared or the family consultant of his / her own volition thinks a report should be prepared.

2.That there be orders in terms of the minute of proposed orders as amended (“the minute”).

IT IS DIRECTED:

3.That the minute be placed upon the Court file and marked “Exhibit A” and the original of that minute be sent to my Associate for amendment and engrossing in due course.

4.That the mother’s aunt and grandmother be provided with a copy of the minute of order as amended and in due course a sealed copy of the order be sent to them at any address which they  leave with my court officer for that purpose.

IT IS FURTHER ORDERED:

5.That all previous parenting orders be discharged save for those orders which require the mother, Ms Peretti, to attend an approved parenting course.

6.That the father and the paternal grandmother have equal shared parental responsibility for the child … born … September 2005.

7.That the child live with the paternal grandmother.

8.That the child spend time and communicate with the father as agreed between the father and the paternal grandmother.

9.That the mother spend time and communicate with the child as follows:

a.      Until the family is accepted into the B Children’s Contact Centre;

i.For a period of two hours on one day a week;

ii.The paternal grandmother be present during the mother’s time with the child;

iii.The time be exercised at R Centre;

iv.The mother be required to advise the paternal grandmother at least 48 hours in advance that she intends to exercise the time spent provision and in the absence of such notice the time spent that week not take place.

b.      Upon the family being accepted into the B Children’s Contact Centre:

i.For a period of two hours on a date and at times to be determined by the B Children’s Contact Centre;

ii.As may be otherwise agreed between the parties.

10.That in order to facilitate the time spent at the B Children’s Contact Centre the mother, the father and the paternal grandmother each forthwith complete all necessary documents for inclusion of the family in the Contact Centre program at B and in the event the mother fails to forward the necessary documents to the B Children’s Contact Centre within two months of the date hereof paragraph 5 hereof shall be suspended and be revived by either:

a.With the written consent of the father and the paternal grandmother or;

b.By order of this Court.

11.That the father and paternal grandmother keep the mother advised in writing of all significant health, developmental and educational issues relating to the child and to facilitate same the mother provide the father and paternal grandmother with an address to receive written communication.

12.That the mother attend Parenting Orders Program conducted by B Children’s Contact Centre in compliance with paragraph 8 of the order made on 8 February 2008 and, upon completing such course, provide the supervising family consultant with proof of compliance.

13.That the Independent Children’s Lawyer deliver to the father and the paternal grandmother the passport for the child.

14.That the Order for the appointment of the Independent Children’s Lawyer be discharged.

15.That all extant applications be dismissed.

16.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Peretti & Bettini is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 1969 of 2006

MS PERETTI

Applicant

And

MR BETTINI

MRS BETTINI (SNR)

Respondents

REASONS FOR JUDGMENT

(ex tempore)

1. These proceedings concern the child born in September 2005 and come before me today for the final defended hearing of competing applications by the mother, Ms Peretti, the father, Mr Bettini, and the paternal grandparents, Mr and Mrs Bettini (Snr), for the child to live with them. 

2. The mother has not attended court.  She was called at the door of the court shortly after 10 am and there was no response to the call.  She has not complied with orders that she file material in anticipation of the hearing.  The mother  has not spent time with the child since March 2008, in spite of orders which entitled her to spend time with the child on a weekly basis, subject to supervision.  However, as recently as mid-June 2008, the mother attended upon the family consultant appointed for this case for preparation of a family report.

3. The other parties, being the father and the respondent paternal grandparents and the independent children's lawyer, who is Mr Lampe, seek that the matter proceed, notwithstanding that the mother is absent.  I am satisfied that the mother has notice of the hearing today and that it is appropriate for the matter to proceed in her absence.

4. The father, paternal grandmother and the independent children’s lawyer agree on what final orders should be made.  They have prepared a minute which I have directed be  marked “Exhibit A”  remain on the court file.  For reasons to which I shall come shortly, I am satisfied that it is appropriate to make final orders in the terms sought.

5. Additionally, and following discussions with counsel, I will order that there be supervised counselling pursuant to section 65L for a period of two years, to be reportable, if the court orders a report to be prepared or at the volition of the family consultant. In the event that the mother does wish to approach the court subsequently or to see the child, it is preferable that her first point of contact be a family consultant in the Family Court child dispute service, rather than she being required that she make an application.

6. Each party to the proceedings completed a questionnaire in January or February 2008, they are in evidence before me.  This is a proceeding to which the amendments of the Family Law Amendment (Shared Parental Responsibility) Act 2006 apply, including those provisions which deal with less adversarial hearings.

7. Apart from affidavit material which each party swore in early 2008, the paternal grandmother, Mrs Bettini, has sworn an affidavit on 3 July 2008 updating the situation.  I am advised by counsel for the paternal grandmother that that document was served on the mother by being sent to her address for service by prepaid post.  I accept that has occurred.

8. As part of the court's preparation of the matter for trial, a family report has been prepared.  It is dated 18 June 2008.  It was prepared by Mr E.  It followed a children and parents' issues assessment which was prepared on 8 April 2008 which again is common to all parties.

9. I have mentioned the independent children's lawyer.  Mr Donald Lampe, solicitor, was appointed following a request being made on 13 December 2006.  His role is to form an independent view based on available evidence of what is in the child’s best interests and then act in these proceedings in what he believes to be the best interests of the child.  Mr Lampe is not a legal representative retained by the child and he is not bound by any instructions.  The role of the independent children's lawyer is to deal impartially with the parties, ensure that any views expressed by the child are fully put before the court were he old enough to express any, to analyse documentary expert evidence and reports and distil from that evidence significant matters for the purpose of properly drawing them to the court's attention.  The independent children's lawyer is also under a specific duty to take steps to minimise for the children the trauma associated with proceedings and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.  In this matter, I am confident that the child has been well served by Mr Lampe and today by Mr Hoult.

Relevant law – parenting issues

1. These proceedings are brought under Part VII of the Act.  Pursuant to s 60CA, in deciding to make any parenting order in relation to [the child], I must regard [the child’s] best interests as the paramount consideration.

2. Subject to the best interests of the child being the paramount consideration,

   
   

   s 60B sets out the aims and principles of Part VII.  The section provides the context within which the relevant best interests factors listed in s 60CC are to be examined and ultimately weighed.  The importance of s 60B factors varies from case to case.  Where there are no countervailing factors or considerations, the s 60B objects and underlying principles may be decisive.

3. Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the children are met’ by:-

   (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. The objects may be regarded as the core values of the legislation.  Sub-section 60B(1)(a) of the Act] has particular relevance in these proceedings.  It emphasises that the involvement of both parents in the child’s life should be meaningful as to its quality and to the maximum regularity and frequency permitted by the child’s best interests. 

5. The principles which underlie the objects are more specific but not exhaustive.  They are that, except when it is or would be contrary to the child’s best interests:-

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)  parents should agree about the future parenting of their children; and

   (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

6. In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. 

Determining the child’s best interests

1. In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in

   
   

   s 60CC of the Act.

The primary considerations

1. The primary considerations echo the first two objects set out in s 60B of the Act.  The primary considerations are set out in s 60CC(2) and are described as follows:-

   (a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. s 60CC(2)(a) of the Act requires me to evaluate the nature and quality of the relationship between the parties  and the child by reference to additional considerations.  It is a prospective enquiry.  There is no issue about the child’s relationship with the father or his principal carer, his paternal grandmother. I am required to evaluate the extent to which a meaningful or significant relationship with the child’s mother is going to be beneficial and of advantage to him into the future.

3. The view of the family consultant was that he could not have confidence that the mother would be able to or committed to provide a consistent, secure or attuned care experience for the child.  That is not to say that it would not ultimately be for the benefit of the child to have such an experience with the mother but that at the moment, the mother is not in a position to offer that to the child.  However, at this point I am unable to place much importance on the child establishing and maintaining a relationship with the mother when she is not spending any time with him on a regular basis.

4. The second of the primary considerations recognises the necessity for protecting the child from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence.  It is common ground at this point and supported by the family consultant that the paternal grandparents are recognised as the sole option to meet the child’s emotional and physical needs at this stage.  There is considerable doubt about the ability of the mother to care for the child on an unsupervised basis and the father admits that he is currently unable to care for the child on an unassisted basis.

5. These proceedings, whilst conducted in a less adversarial trial model, do still require each party to put his or her own case before the court.  The fact that the mother has elected not to attend today or to participate in this final hearing means that my considerations are abridged.  All parties who do attend agree with the orders that should be made today.  I can only assume that if the mother did not want orders to be made consistent with the earlier applications and in these terms, she would have attended today and asked the court to make alternative orders and given reasons why those alternative orders should be made. 

6. I have read all of the documents filed in the proceedings to date.  I have had the benefit of the issues assessment from April 2008 and the family report of 18 June 2008. I accept the expert opinion of the family consultant as expressed in both April and June.  His views support orders being made in the terms sought.

7. I am satisfied that the orders that are sought are the most appropriate orders, having regard to the child’s best interests as the paramount consideration.  In fact, the orders sought are the only viable orders that can be made at this stage. 

8. I have regard to the additional considerations prescribed in the legislation.  All of those which apply are also supportive of the orders being made.  The orders that will be made reflect the fact that the child has a primary attachment to the paternal grandmother.  It is in his interests that this primary attachment continue uninterrupted. 

9. It will be for the benefit of all concerned for the proceedings to be brought to and end.

10. I am satisfied that there has been some willingness on the part of the paternal grandmother to communicate matters in relation to the child to members of the mother's extended family.  I observe that the mother's aunt and her grandmother have attended court today.  Each of them has been given information by the paternal grandmother relevant to today's hearing.  I have asked counsel for all parties who are present whether they object to the mother's aunt and grandmother having a copy of the orders which will be made today; they do not, and so I will see that that is done.

11. I have also taken the opportunity to explain to the members of the mother’s family the purpose of the supervised counselling order which I have made.  I hope that if they have an opportunity and it appears appropriate to do so, they will communicate that to the mother. However, they are not under any obligation.

12. I am confident that the orders that are sought are in the best interests of the child and I make them.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  15 August 2008