Pergolese and Benvenuto

[2016] FamCA 845

FAMILY COURT OF AUSTRALIA

PERGOLESE & BENVENUTO [2016] FamCA 845

FAMILY LAW – CHILDREN – interim orders – where the father seeks a recovery order – where the mother did not present at the hearing – where a family assessment was ordered to be undertaken – where the family consultant has not observed interaction between the child and the father – where consideration is given to the child’s best interests – where a recovery order is made.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Pergolese

RESPONDENT: Ms Benvenuto

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 638 of 2015

DATE DELIVERED: 16 September 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 16 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Green

SOLICITOR FOR THE APPLICANT: Phillips Green & Associates

COUNSEL FOR THE RESPONDENT: Mr Praolini

SOLICITOR FOR THE RESPONDENT: Scales and Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lewis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. That a recovery order do issue for the said child B born … 2012.

2. That the child B … August 2012 live with the father.

3. That the mother be restrained and an injunction is granted restraining her from removing or taking possession of the child from the applicant father until further order.

4. That if the mother removes or takes possession of the child she may be arrested without a Warrant.

5. The recovery order remains in force until further order or a period of twelve (12) months whichever is the sooner;

6. Liberty to re-list upon four days’ notice. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pergolese & Benvenuto 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 ADELAIDE

FILE NUMBER: ADC 638  of 2015

Mr Pergolese

Applicant

And

Ms Benvenuto

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The proceedings before the Court relate to the parenting arrangements for the child, B born in 2012 (“the child”).  The parties have been in dispute since 24 February 2015 in respect of the arrangements for this child.  It is relevant to note that the initial orders sought by the mother in her initiating application was that she have sole parental responsibility for the child, that the child live with her and that she have the primary care, but that otherwise the child spend time with the father each alternate Saturday from 1 pm to 4 pm.  That initiating application has been the subject of further amendment by the mother on 6 May 2015, which included orders relating to property settlement, but did not at that point change the orders that the mother was seeking, or was prepared to agree to in respect of the parenting arrangements.

2. That has, however, changed and the mother’s position now is to resist orders that the child would spend time with the father.  There has been considerable history to the litigation.  The matter progressed to the point where, by affidavit of 9 March 2016, a comprehensive family assessment report was annexed to an affidavit of Dr C, that report having been prepared as a result of the joint instruction of the solicitors who represented the parties.  The date of the assessment report was 6 November 2015 and sets out the interviews with the parties, observations of the child with each of the parties, recommendations by the family consultant and an indication of the extent of the material that the family consultant had been provided with.

3. B was aged three years and three months at the time of the assessment.  It is reasonable to consider that when this matter came before Judge Cole on 24 May 2016 the parties were aware of the affidavit of Dr C of 9 March 2016 and, more importantly, were able to consider at length the matters raised in his report and the recommendations that he made.  Whether that impacted upon the parties is difficult for me to know, but what is apparent from the order of his Honour on 24 May 2016 is that the parties by consent agreed that during the period of the adjournment the child would live with the mother, but spend time with the father from 11 am to 4 pm on each Saturday commencing Saturday, 28 May 2016 and for some hours on Father’s Day.

4. The order provided for a range of other ancillary orders to be put in place in terms of matters relating to the handover and what actions should be taken if the child appeared to be unduly distressed.  Importantly, it was provided in paragraph 4 of the order that the handover would be conducted between the father and a nominee of the mother, Ms D.  Order 11 indicated the method by which either of the parties or his Honour considered would be the further progress of the matter.  In particular, an essential and important aspect of the orders is that the parties would do all things necessary to enable an addendum family assessment report to be carried out by Dr C in respect of the child, with the family assessment report to specifically direct its attention to matters of views of the child, the weight that the Court should attach to any views, any other matter that the assessor considered important in the matters as set out in s 60CC, 61DA and, if relevant, s 65DAA. 

5. Order 16 provided for the appointment of an Independent Children’s Lawyer (“ICL”) and there were also provisions in the order to regulate the arrangements upon which the child would attend or could attend in the care of the mother general practitioners or allied medical practitioners.  The clear focus of that order was to bring into the process the father so that he could have input and some understanding of the arrangements for the child.  The order is silent in respect of issues relating to parental responsibility.  Accordingly, the presumption under the Act is that the parties have each retained their parental responsibility unchallenged and undiminished.

6. That order then came back before his Honour on 11 July 2016.  The difficulty was that Ms D for various reasons was no longer prepared to facilitate the handover and, accordingly, different orders needed to be made in terms of who would conduct the handover on behalf of and in the absence of the mother.  It was determined and ordered by consent that Mr E Benvenuto, who is the maternal grandfather or Ms G Benvenuto, who is the maternal aunt, would assist and take the place of Ms D. 

7. An important consideration in respect of paragraph 4 of the order relating to the maternal grandfather and the maternal aunt is to be considered by order 6, which provided that by 15 July 2016, namely four days after the date upon which his Honour made the consent order, that the maternal grandfather and maternal aunt would file and serve an affidavit setting out their ability, willingness to undertake handover and their understanding of their obligations in relation to handover.  It is common ground, and indeed was a matter discussed on the last occasion, that those parties have not filed their affidavit material.  Ms G Benvenuto, the maternal aunt, was no longer prepared to be bound by the order or, at least, to offer her services pursuant to the order, but that the maternal grandfather would be prepared to continue in the role of assisting with the handover, but that notwithstanding that issue he refuses to enter into any affidavit.

8. The matter was then transferred by his Honour to the Family Court of Australia and what his Honour did not do was to give consideration to the length of the period that his Honour considered the orders that he made on 11 July 2016 would operate.  It is an argument that because the orders were conditional on their operation only being during the period of the adjournment, when the matter came back before Registrar Paxton on directions on 15 July 2015 it is suggested that technically the orders ceased to be in operation thereafter.  That is, that the orders had effect for a period of four days.

9. Whilst I make no determination as to whether it is or is not the case, it is unlikely to have been the intention of the parties that the obvious thought that had been given to the orders of 11 July 2016 were intended only to have effect for four days.  What is common ground is that the child has not been spending any time with the father.  The father brought an application in a case on 3 August 2016, being document 47, and it is that application that brings the matter back before the Court.  The matter was then referred to me and on 9 September 2016 I heard extensive submissions.

10. It is to be noted that from the very first order that Judge Cole made, a condition of the order was the attendance of the mother during the course of the proceedings.  That order was continued on 11 July and following the hearing before me, and noting that there was a possibility that his Honour’s orders may not be ongoing , I determined to put in place fresh orders that provided for the child to live with the mother and spend time with the father from 11 am to 4 pm, which was nothing more than a continuation of the previous orders. Handover arrangements were to be conducted between the parties at the Suburb H Police Station.

11. That order was required because I was not satisfied that it was appropriate for the maternal grandfather to partake in a role of facilitating the handover of the child in circumstances where he was not prepared to enter into an affidavit which was intended to do no more than indicate his willingness and preparedness to undertake the role and again an understanding as to what was required.  Not entering into or complying with the order for the filing of an affidavit suggested that the maternal grandfather was not a person about whom I could be confident would be able to discharge the order in respect of handover.

12. My orders focused on the addendum family assessment report that had been foreshadowed by his Honour in July of 2016.  It seems extraordinary that a task which is routinely undertaken and about which it is difficult to see what impediment might arise in respect of it had not completed.  What remained was the component of the assessment which related to the observed interaction between the father and the child.  It appears that all other components in terms of the interviews of the parties and the observations of the child and the mother were completed. 

13. It seems then difficult to understand how the matter could be before the Court in September in respect of orders made in July with a focus on the report having been completed by 31 August, that that process has not taken place.  Importantly, there is no assistance provided by the mother that satisfies me as to the basis upon which an arrangement could not have been made or indeed the attempts for the arrangements to be made in relation to the child being observed with the father.  It could not be said that the child was at risk.  Nor that the proposal was in way inappropriate given that the idea of an addendum family assessment report was something that the parties sought and that ultimately the Court considered it to be sensible.

14. Some assistance is gained from the report of Dr C of 6 November 2015.  As I have indicated the report has about it a construct which is regular and routine.  What is important is that in respect of the preparation of that report Dr C was afforded the opportunity to observe the interaction of the child and the father.  Indeed, it also involved his partner, Marcia.  Dr C records the following on page 5:

    [B] greeted the father affectionately with ‘my daddy’ and a warm cuddle.  She then proceeded to tell him various things about what she had been doing and interacted with him freely.  The father was attentive, attuned and responsive, making an effort an effort to discuss these topics and also raise some of his own (such as recollections of TV shows [the child] had watched).  [The child] was highly responsive to her father’s questions providing fluent answers that led into a range of activities using the same box of toys that had been present when she was spending time with the mother. This eventually led to an extended discussion of animals [the child] had seen at the zoo that she apparently called ‘the jungle’. 

    After a period, the father’s new partner Ms I was introduced.  [The child] was warm and responsive to [Ms I] and greeted her with a hug and attentive gaze.  [The child] settled back into relaxed play and free interaction with both father and Ms I.  Overall, there were no signs of discomfort or distress in [the child] while in the presence of the father or [Ms I]. 

15. To pick out a paragraph from an extensive report does not do the report nor the author justice, but it at least indicates that on the last occasion that the Court was able to understand the extent and nature of the relationship that existed between the father and the child it is reasonable to accept the observations of Dr C that indicate warmth and affection.  The child showed no fear.  In his summary Dr C makes the following remarks:

    Observation of [the child] with the father, as well as with his new partner, [Ms I], demonstrated a high level of comfort on the part of [the child] and some signs of strengthening confidence in her father’s capacity to care for her.  While she was too young for interview, [the child’s] interactions with her father appear to be sufficiently comfortable and developed to suggest confidence that she would adapt to increased time with him, including overnights.  This pathway would be assisted by the mother encouraging a greater degree of independence in [the child] with respect to her sleeping arrangements. 

16. It is true that the mother expressed some concerns in respect of the father’s hearing and whether if indeed the child remained with him at night whether he could hear sufficiently well to respond to the child’s needs. 

17. That issue did not seem to be of significance to Dr C.  In a general sense he appeared supportive, not just of the contention of the father that there should be overnight time, but also that the assumption of shared parental responsibility would be in the child’s best interests and would see the necessity for the parties to communicate with each other.  The recommendations of Dr C was that the child live with the mother, that the parties retain shared parental responsibility and that the child would spend increasing time with the father prior to review before she commences schooling, initially each Saturday 10 am to 5 pm until April and then from April alternate weekends from 5 pm Friday to 5pm Saturday.  Dr C considered the more long-term arrangements from November 2016 but they are not matters that are relevant at this stage.  In the immediate period following this report Dr C urged that the mother undertake to prepare the child for increasing independence particularly in relation to sleeping arrangements as a prelude to the child commencing overnight stays with the father.   It is reasonable then to assume that the mother was on notice by a very early stage that the matter may very well progress at least as far as Dr C was concerned to the likelihood that at some stage in the not too distant future the circumstance would arise where overnight time would be introduced into the arrangements between the father and the child. 

18. Again, the wisdom of the orders of the parties considered in July of 2016 was that an assessment by 31 August 2016 would see a period of about nine or 10 months from the date of this assessment, with the child being that much older that the orders that had been in place were consistent with the orders that Dr C considered were in the child’s interests and then he and the parties could focus on what might constitute a more comprehensive interim arrangement.

19. That has not happened.  The child has not spent any effective time with the father and perhaps the less contentious proposition is that whilst the mother may well indicate why it was that the child should not see the father notwithstanding the order and in the absence of any effective application to discharge the order, she could not possibly complain about the prospect of an addendum report.  Following the orders that I made on 9 September 2016 it was at least raised that there was a possibility that there may be a difficulty in respect of Dr C completing the observed interaction with the father and at the considerable inconvenience to him I requested two periods be reserved.

20. The first was on Wednesday and then on Friday of this week.  On 14 September 2016 Mrs Green appeared for the father who was present.  Mr Hemsley of counsel appeared for the mother and Mr Boehm of counsel appeared for the ICL.  It was also noted that the mother was again not in Court and that notwithstanding the Court order there was no explanation nor was there any affidavit filed or tendered which would explain why it was that the mother was not present.  The suggestion that the mother was suffering some ill health was faintly raised.

21. Whilst in the ordinary course such an issue would not concern either the parties or the Court unduly, against the backdrop of a continuing order requiring the mother’s attendance and what appears to be a lack of engagement with that order, it has significance.  The focus on the mother’s continued non-attendance particularly when the father’s anxiety was clearly being heightened and would have been obvious to the mother and those that advise her, it would have been incumbent upon her to do all that was necessary to satisfy the Court that her non-attendance had a genuine basis in fact.

22. I do not know what prevents or determines that she will not attend but she has not and the difficulty that has been created is that a consent minute of order was tendered on 14 September 2016 which provided for the child to be delivered to the director of Court counselling or such family consultant as he may nominate in the Court childcare centre on or by 12 noon on Friday 16 September 2016 to enable Dr C to observe interaction between the child and the father.

23. The order provided specifically for the mother to bring the child and a requirement that upon complying with order 1 she immediately leave the Court childcare section.

24. As an indication of the concern to the Court as to what appears to be the mother’s lack of engagement or understanding of the Court process and, more relevantly, why these matters have the potential to impact adversely on the child, is reflected in an order made by me that the mother be restrained from removing the child from the childcare centre until the rising of the Court.  That was done, as was indicated in reasons given on 14 September to ensure that all options would be available to the Court if a difficulty arose in the execution and discharge of the obligations placed upon all of the parties.

25. Whilst it is conceded that the child did not spend time with the father, pursuant to my order of 9 September 2016, the only affidavit that I have received in respect of what happened on that occasion is an affidavit of the father.  It was suggested that if given the opportunity, the mother might have a different version or would want to put other matters that might place what appears to be, at least initially, the mother’s non-compliance with the order of 9 September 2016 into context.  No such affidavit has been tendered.

26. The matter comes back this afternoon as anticipated pursuant to the order of 14 September 2016, and it was hoped and, indeed, I think, reasonably expected that the child would have been presented.  Pursuant to the order Dr C would have been able to complete his assessment and in all probability, and based upon an indication that the ICL had provided to the Court that Dr C would be able to complete a report within 14 days, it was, I think, the reasonable expectation that the Court would do no more than simply adjourn the proceedings for what would be a relatively short period of time.

1. By letter forwarded to my chambers and with my leave, the ICL advised that she had received at 10.17 am today an email, presumably from the mother, but not necessarily so – it may have been from the mother’s solicitors – that due to poor health, the mother would not be presenting the child in accordance with the orders.  The ICL was also advised that it was highly unlikely that the mother would present at the hearing this afternoon and that the mother would contact Dr C in order to confirm that the appointment today would not happen.

2. As matters have transpired, Mrs Green appears for the father, who is present;  Mr Lewis appears as counsel for the ICL;  and Mr Praolini appears as currently the solicitor on record for the mother.  At the commencement of the proceedings, Mr Praolini has unsuccessfully sought leave to withdraw from the proceedings.  Mrs Green made an application for a recovery order in respect of the child.  I considered it important that the mother have information as to what transpires during today’s hearing and any orders that I made as soon as is practicable and reasonable.  Whilst the Court is able to assist to some extent in that regard, I am conscious that it is the weekend, and it seemed to me that the best and most direct method by which the mother could be made aware of the outcome of the proceedings and that which falls from me and, indeed, from other counsel, including the ICL, is via Mr Praolini.

3. It is a matter for him thereafter as to what he does, although I noted that there has been some equivocation on his part at the commencement of these proceedings as to whether he did wish to withdraw or, indeed, whether he understood or expected that he might retain instructions.  Ultimately, I accept his submission, and that is that at the conclusion of today’s proceedings, subject to whatever may happen, it is his position that he will withdraw.  That is, of course, a matter for him.  Currently he is a solicitor on record.  His assistance to the Court will be invaluable in being able to communicate with his client and to advise her of the matters that have transpired today.  Thereafter, it will be a matter for him as to whether he wishes to file a notice of ceasing to act or to take such other advice, ethically or otherwise, as he may consider necessary.

4. I am then obliged now to consider what will happen in the interim.  I think it is a reasonable position for the Court to adopt that notwithstanding the order that is in place, it is unlikely that the order will be complied with, in the sense that the child will be presented pursuant to the order.  There is nothing before the Court that suggests on behalf of the mother that she recognises the order;  considers that it is an order that needs to be complied with;  understands the benefits to the child of the order which was, again, a continuation of an underlying order made by consent.  If that had been the case, the Court might have other options available to it.

5. Of more immediate concern, however, is that the matter simply is not able to proceed in circumstances where Dr C has not been able to complete his report.  At this stage, and without more from the mother, I form the view that the mother is resistive to that process being completed.  It is difficult to understand why that would be.  It is one thing for the mother to be concerned as to orders that have the child spending time with the father.  It is an entirely different matter for the mother to be resistive to what is a benign approach, namely, the preparation of an assessment report, in circumstances where there has been an earlier report and the indications and observations of Dr C is that it went well and the child was not distressed.  Indeed, if the mother’s concern is with the child’s presentation and distress, one would have thought that the ideal place for that to be given some weight and consideration would be the very process that she appears prepared to flout.

6. I am satisfied that if no further order is made, that the assessment will not be completed, and it is unlikely that the mother will assist the Court either in terms of her attendance or, indeed, in terms of the child being presented.  I consider that the completion of the family assessment report to be a matter that is in the best interests of the child and is a matter of paramount concern that it has not been completed.  If it is simply a consequence of the mother’s actions that the report has not been completed or is not able to be completed, then the result for the child is the same, namely, it is not in the child’s best interests.

7. The best information that I have is the observations of Dr C in respect of his report of late 2015 presented to the Court, and the basis upon which orders appeared to have been made by the parties.  There is nothing to suggest that the father’s relationship with the child has in any way diminished, and it might be reasonable to assume that the mother, perhaps in happier times, took on board matters raised by Dr C and considered that the child’s arrangements needed to reflect a need for a greater level of independence in order to facilitate circumstances by which the child would spend increasingly more time with the father.  In any event, they are matters for the mother.

8. I am also satisfied that the mother has been properly represented both by an  experienced solicitor and counsel in respect of this matter, and that the options that might be available to the Court and the sorts of applications that might be sought on behalf of the father were matters that could be well anticipated.  Not much was required by the mother other than that the child would be presented to the Court childcare, with the assistance of the director of Court counselling, for no other purpose than for a relatively short period of observed interaction, again, in the precincts of the Court with the father.  It is difficult to understand why a process so benign and so simple has brought the parties to this point.  But it has, nonetheless.

9. The only way that this matter will move forward is if I accede to the father’s application that there be a recovery order and that the child, until further order, live with the father.  It may then be the case that the matter can come back to the Court and further consideration can be given.  Such an order should not be made simply because the Court feels that it is the last option.  That would be an improper purpose.  Such an order can only be made because it is in the interests of the child to do so.

10. I bring to account the provisions of s 60CC and am mindful of the primary and additional considerations.  One of the primary considerations is that a child is entitled to have a meaningful relationship with his or her parents.  That must be tempered against any risk in respect of the child, and if there is a risk, I must give that primary consideration.  It does not mean it extinguishes the benefits to a child of having a meaningful relationship, but it may well make the order conditional, either in terms of time, conditions or supervision.

11. The additional considerations point significantly to the benefits of this child spending time with the father.  They do not derogate from that, and there is nothing that is presented with any force that would suggest to the contrary.  In circumstances where I cannot be satisfied and place little or no weight on any assertion by the mother that there is some risk that inures to the child in the care of the father, overwhelmingly, then, it seems that I am drawn to the conclusion that orders need to be made that as a matter of urgency will cause the relationship between the child and the father to be restored and to resume.  That can then be the subject of assessment by Dr C, and there may well be a clearer way forward.

12. Accordingly, and noting that the application of Mrs Green for a recovery order to issue is supported by the ICL, I propose to make such an order, not to be seen as a punishment to the mother for her inability to engage or difficulties that others consider she may have occasioned to the Court, but because, irrespective of those matters, it is in the best interests of this child to effect a restoration of the relationship with the father. I do not consider the child is to be at risk in the care of the father.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 16 September 2016.

Associate:

Date:  29 September 2016