Pergolese and Benvenuto (No 2)

[2016] FamCA 969

FAMILY COURT OF AUSTRALIA

PERGOLESE & BENVENUTO (NO 2) [2016] FamCA 969

FAMILY LAW – CHILDREN – interim orders – where the father brings an application following a recovery order issued against the mother – where the father seeks orders for the child to live with him and spend supervised time with the mother – where the mother opposes the orders sought by the father – where the ICL supports the father position – where there is a family assessment report – where consideration is given to the best interests of the child – where it is ordered that during the period of the adjournment the child remain in the care of the father and spend unsupervised time with the mother.

Family Law Act 1975 (Cth) s 60CC

Pergolese & Benvenuto [2016] FamCA 845

APPLICANT: Mr Pergolese

RESPONDENT: Ms Benvenuto

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

FILE NUMBER: ADC 638 of 2015

DATE DELIVERED: 15 November 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 8 November 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 & Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Schirripa

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

Orders

Until further order:-

1. That B born in 2012 (“the child”) live with the father.

2. That the child spend time with the mother from 9 am or the commencement of pre-school kindergarten (whichever is the earlier) on Monday to 5 pm on Tuesday commencing 28 November 2016 and each alternate week thereafter and from 9 am or the commencement of pre-school kindergarten on Friday to 5 pm on Saturday commencing 2 December 2016 and each alternate week thereafter.

3. That the child spend time with the mother from 3 pm on 25 December 2016 to 4 pm on 26 December 2016.

4. That to give effect to these orders handover shall take place at Hungry Jack’s car park at Suburb J when not at the child’s pre-school.

5. That the parties each keep the other informed of any change to their residential address and telephone numbers including home landline and mobile phone within seven (7) days of any change.

6. That each party is to keep the other informed and notify the other immediately of any medical emergency in respect of the child and be at liberty to attend any medical facility.

7. That the parties do all things and sign all such documents necessary forthwith to complete the child’s enrolment at Suburb K Pre-School.

8. That the parties do all things and sign all such documents necessary to enrol the child at L School and M School.

9. That the mother be at liberty to release the report of Dr C dated 6 November 2015, the addendum report of Dr C dated 5 October 2016 and the reasons for judgment in respect of these proceedings to Ms N of O Psychology.

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 Pergolese & Benvenuto (No 2) 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 ADELAIDE

FILE NUMBER: ADC 638  of 2015

Mr Pergolese

Applicant

And

Ms Benvenuto

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 16 September 2016 reasons were delivered in support of orders made that a recovery order do issue for B born in 2012 (“the child”) and that upon recovery from Ms Benvenuto (“the mother”) the child would live with Mr Pergolese (“the father”).

2. Reasons delivered and reported as Pergolese & Benvenuto [2016] FamCA 845 adequately set out the circumstances leading up to the recovery order, but it is sufficient that the mother’s position was to resist orders that the child would spend time with the father.

3. In order to assist in the Court’s determination of what would be in the child’s best interests, Judge Cole ordered a family assessment report to be prepared by Dr C (“family consultant”).  The assessment took place in November 2015 and a report was made available to the parties annexed to an affidavit of the family consultant filed 9 March 2016.

4. Certain recommendations were made and on 24 May 2016 the parties agreed that during the period of the further adjournment the child would live with the mother but spend time with the father from 11 am to 4 pm each Saturday.

5. Handovers were to be conducted between the father and a nominee of the mother.

6. An order was made for the appointment of an Independent Children’s Lawyer (“ICL”).  Ancillary orders were made which had the effect of ensuring the father remained involved with the child and could have input in respect of the arrangements for the child’s attendance upon various medical health practitioners.

7. His Honour contemplated an addendum family assessment report which had been undertaken but remained incomplete in respect of the component relating to observed interaction between the father and the child.

8. On 16 September 2016 I expressed concern that the assessment had not been completed and in circumstances where the child was not at risk and the process of completing the report was routine, the actions of the mother suggested that she was deliberately uncooperative with the assessment process given her apprehension that subject to further assessment, it was within the range of possible outcomes that the family consultant would recommend that the child spend overnight time with the father.  Various arrangements have been made for the assessment to be completed and the Court record reflects the numerous occasions that the matter came back before the Court culminating with an order that the mother bring the child to Court to be placed in the care of the Director of Court Counselling or such other family consultant as he may nominate by 12 noon on 16 September 2016, to enable the family consultant to observe the interaction and complete his assessment.  The mother did not comply with that order.

9. Following submissions from the father’s counsel and the ICL, I considered that the only way forward was for a recovery order to issue and for the child to live with the father until further order.  In doing so I gave careful consideration to the provisions of s 60CC, in particular the primary considerations that the child was entitled to have a meaningful relationship with the father, but tempered in respect of any risk to the child in doing so.

10. On 17 October 2016 the father filed a Further Amended Response to the Initiating Application seeking a significant change in the final orders sought.  Whereas the father had originally conceded that the child would live with the mother and spend significant and substantial time with him, that position has now changed and he seeks that the child reside primarily with him and spend time with the mother as may be ordered.

11. In respect of the interim orders, the father seeks that the child spend time with the mother each alternate Saturday from 10 am until 12 noon and for the same period of time on Christmas Day supervised by the paternal grandmother.

12. In response, the mother filed an Application in a Case on 4 November 2016 seeking that the child be returned to her care and spend time with the father every second Friday from 5 pm until Saturday 4pm.

13. The mother also raised a looming difficulty with the parties being unable to agree where the child will attend school in 2018, but of more immediate concern is the child’s enrolment in a kindergarten or pre-school for the 2017 academic year.

PROPOSALS OF THE PARTIES

1. The father seeks that the child remain living with him and spend limited and supervised time with the mother pending the mother satisfying him that she has gained some insight into her actions and is prepared to support and promote the child’s relationship with him.  At that point the father would consider that supervision is no longer required, but he no longer considers that it would be in the best interests of the child to live primarily with the mother.

2. The mother considers that the child should return to her primary care and implicit in the orders that she now seeks, she recognises that the child should spend one overnight period a fortnight with the father.

3. The position of the ICL is strongly supportive of the father’s position.

ISSUES PRESENTED BY THE FATHER

1. The father relies upon his affidavit filed 7 October 2016 in support of the interim orders sought.

2. He attests to his observation that the child has apparently adapted quickly to living in his home.

3. In recognition that the child may well be missing the mother, he has been facilitating telephone contact.  An unfortunate feature of the interaction between the parties and the child is that when speaking to her mother the child’s conversation is made audible by use of the speaker phone.

4. The father reports that the child was questioned in respect of her medication and her bowel issues and it is his summary and assessment that the tone of the conversation was adult in its construct.

5. On 5 October 2016 the father records that in relation to her concern as to the child’s diet and bowel issues the mother yelled at the child about her food intake.

6. That conversation was followed up by a vitriolic text message.

7. Irrespective of the accuracy of the content, the sentiment expressed would not appear to auger well for the parents of this child easily reaching a consensus.

8. The parties have had a singular focus on the child’s bowel movements.  The mother considers that the father is not able to appropriately manage the child’s diet and health generally, whereas the father considers that whilst the mother makes much of the issue, it is not as significant as she would contend since the child has been in his care (nearly two months) there has been significant improvement in the child’s condition.

9. Of concern to the father is that upon an enquiry of the child’s medical specialist, it appears that the mother cancelled appointments on 8, 15 and 29 August 2016 and 5 September 2016.  The father caused the child to attend upon the specialist on 29 September 2016.

10. The father has also attended to immunisations and the mother has been informed of the child’s immunisation history and medical appointments.

11. The parties are also in dispute over the child’s attendance at an appropriate kindergarten.  The parties apparently live close to each other and in the Suburb K area.

12. The father was informed that the mother had enrolled the child at the Suburb K Kindergarten.  For reasons that are not clear, the mother refused to confirm the address.  The father relates a text message which if accurate is at best unnecessary and at worst denigrating and offensive.

13. In the absence of the mother providing clear details for the child’s pre-school arrangements, he has enrolled her in P Pre School and Suburb Q.

14. Whilst the parties are in dispute as to the school arrangements for the child in 2018, that determination does not need to be made at this stage but rather, that in order to preserve the position of each of the parties, I propose to order that they do all things necessary to enrol the child in the father’s school of choice being M School located at Suburb R and the mother’s school of choice namely L School.

ISSUES RAISED BY THE MOTHER

1. The mother relies upon her affidavit filed 4 November 2016.  She is keen to provide some explanation as to why she did not comply with various Court orders and was concerned to provide some balance to the matters raised by Dr C which suggest that she was difficult and obstructive.

2. The mother confirms that she has been speaking to the child by telephone on two occasions each week. She does not agree with the father’s observations that the content of the telephone calls are angry and inquisitorial.  She asserts that the father is coaching the child and when he considers that enough has been said he will unilaterally terminate the call. 

3. Predominantly the mother’s concern is that the change from her primary care of the child to now living in the father’s home is so dramatic that it could not be in the best interests of the child.  She considers that the “radical change” in the child’s living arrangements has been made more difficult for the child by her enrolment in a different kindergarten.

4. The mother rejects the father’s proposal for her time with the child to be supervised and of such limited duration.

5. Of assistance is the mother’s advice that she is consulting with a psychologist and her first consultation took place on 20 October 2016.

FAMILY ASSESSMENT REPORT

1. The ICL relies upon the report of the family consultant dated 5 October 2016 annexed to his affidavit filed 5 October 2016.

2. The family consultant sets out the history of the matter and in particular his interview with the father on 6 July 2016 and the mother on 6 September 2016.  He was able to observe the interaction between the child and the mother both on 6 and 13 September 2016.

3. He records that on 13 September 2016 the parties arrived to conclude the assessment process with the family consultant observing the interaction with the mother and the child and then with the father.

4. During the mother’s observed interaction the following is recorded:-

   By this stage, [the child] was quite comfortable drawing and interacting with me and I spelled out a request for the mother to unobtrusively please leave the room.  The mother then said then said to [the child] that ‘[the family consultant] wants me to leave the room.  Would you like me to leave you alone with [the family consultant]?’  [The child] looked somewhat stunned by this question and then shook her head as if to say no.  I said to the mother that this question was not necessary since the child was comfortable.  I repeated the spelled request to leave.  I then provided some feedback to the mother about the need to reassure [the child] it was OK to be with me and about doing reasonable things I request in order to complete the assessment.  The mother said [the child] was quite aware of the ‘whole situation’, namely the presence of the father, so the mother did ‘not want to leave her when she was upset’.  I noted that [the child] did not seem upset.  I made various other spelled-out efforts to encourage the mother to leave the room but by now [the child] was back sitting on her mother.  The mother said she ‘has tried to teach [the child] to make her own decisions and not to do what other people say.’

   It was by this stage clear that the mother would not cooperate in leaving the room or achieving [the child] being alone with me for interview and observation with the father so I abandoned this quest.

5. The observed interaction with the father did not take place and it was the view of the family consultant that the child then followed the visual cues of the mother in indicating that she did not wish to see the father.

6. Following the recovery order and the child coming into the care of the father, observed interaction with him took place on 20 September 2016.  The interaction was unremarkable and the following description appears to summarise the family consultant’s observations:-

   For his part, the father was relaxed and attuned to [the child], displaying a flexible and warm responsiveness.  [The child] displayed excellent focus and concentration as they talked about the board game and she smiled on a number of occasions in obvious enjoyment of the process.

   [The child] clearly preferred to play with the father than with me, but was comfortable when I suggested I play with her.  I gently indicated to the father that he could leave so that I could talk to [the child].  He left without fuss and [the child] kept playing with me as I took over from the father.

7. The family consultant considered that the child had adapted “remarkably well” to the radical change in her life.”.  He was able to contrast the description of the child in the observed interaction between the mother and the father.  His observations and involvement with the father both in respect of the first assessment and then since July 2016 was one of confidence in his ability to support the child.

8. An important consideration of the family consultant was whether the mother was now able to recognise the advantages to this child transitioning between two households and importantly, to maintain and support a relationship with the father.  The family consultant had more confidence that the father would support the child’s relationship with the mother than if the child was living with her.  It is his position that:-

   I thus reluctantly conclude that the presumption of shared parental responsibility may need to be abandoned on the basis of one party’s incapacity to support the proper role of the other parent in the child’s life.  I believe the father would actively support the mother’s ongoing role in [the child’s] life no matter what, should he be given sole parental responsibility, but I fear the mother has proved unable to co-parent effectively with the father over an extended period.

9. He considers that the mother would benefit from professional counselling and therapeutic intervention and it may well be the case that this cue has been the catalyst for the mother seeking private counselling.

10. The principal risk foreshadowed by the family consultant is that without professional assistance and “anxiety management” he is concerned that in the primary care of the mother the child may well be subject to overt pressure and ongoing denigration of the father.

PARENTING ISSUES

1. The family consultant provides no view on whether if the child remained living in the father’s primary care, then the mother’s time with the child should be supervised.  I do not interpret his remarks as support for a resumption of time between the child and her mother as proposed by the father and supported by the ICL to be minimal and supervised.

1. In considering the interim parenting arrangements, I am obliged to make orders that in all the circumstances are in the best interests of the child.  I do so by reference to the primary and additional considerations in s 60CC.  In particular, s 60CC(2)(a) provides for the benefit to the child of having a meaningful relationship with both of the child’s parents, but tempered by the provisions of s 60CC(2)(b) namely, the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

2. The child has expressed little upset or distress in the current arrangements.  When asked she spoke affectionately of enjoying her time with the father and his family and with the mother and her family.

3. Whilst the child may well be aware of the heightened conflict between the parties, with the potential for stress to reflect itself in terms of an exacerbation of her medical issues, nonetheless, the current change in her circumstances is dramatic and I do not consider that the father’s proposal would represent sufficient opportunity for this child to maintain a meaningful relationship with her mother.

4. What is not explained is the mother’s inaction in bringing proceedings consequent upon the recovery order being executed.  The child has spent nearly two months in the father’s care with the only contact with the mother by telephone.  Given the conflicting evidence of the parties, it would appear that even that level of involvement has been problematic.

5. There is no doubt that it is important for this child to have a relationship with both of her parents.  It is reasonable to conclude from the mother’s previous behaviour that she was unwilling or perhaps unable to concede that the child should have a relationship with the father, but of greater importance would appear to be her inability to recognise that it is beneficial to the child’s development to do so.

1. There is little acceptance by the mother that it is important to the child that she be supported by the mother in maintaining her relationship with the father.

2. The child has now settled without evidence that would assist the Court in understanding the extent to which the mother recognises the importance of the child’s relationship with the father, I accept the submission of the ICL based upon the report of the family consultant that the father is more likely to recognise and support the child’s relationship with the mother than would be the contrary position.

3. Accordingly, I consider that the child should remain in the primary care of the father following the careful consideration of the provisions of s 60CC, but with emphasis on the importance of a child’s meaningful relationship with the father and the evidence to date of the mother’s apparent inability to recognise and promote that relationship.

4. The relationship that the child has with the mother is no less important.  I do not consider that the father’s proposal is adequate to maintain that relationship.

5. It is always a difficult balance between promoting the necessary attachment that a child has with his or her parents against the risk of psychological harm where there is at least a suspicion that one party struggles to support the child’s relationship with the other.

6. Nonetheless, I do not consider that supervision of the mother’s time is warranted.  There is no support for such an onerous condition by the family consultant and the thrust of his recommendations are more closely directed to the extent to which each of the parties will play an important part in this child’s life and future development.  There is no suggestion that the child would be at risk in the mother’s care and it is hoped that the very process and the circumstances in which the mother now finds herself may well assist her in better understanding that there is more advantage to the child if not exposed to conflict than where the conflict is exacerbated.

7. To her credit, the mother has sought professional assistance and it may have a relevance to the ongoing arrangements as may be put in place from time to time.

CONCLUSION

1. Unfortunately, the mother’s counsel did not provide assistance with orders that she would seek in the event that the child remained living with the father.

2. Given that the proposals of each of the parties are diametrically opposed, I will do the best I can to reflect the need for the child to resume a relationship with the mother, but to remain living with the father in his primary care.

3. Prior to the child coming into the father’s care, she attended at Suburb K Pre-School.  Whilst I have indicated that I will order each of the parties to do all things necessary to enrol the child in the schools of their choice for the 2018 year, I consider it important that the child’s pre-school arrangements are resolved for 2017.  Given the parties reside in close proximity, I consider that the child should be enrolled at Suburb K Pre-School.

4. I propose to order that the child spend one overnight in each week from the Monday through to the Tuesday of one week and from Friday to the Saturday of the following week.

5. I make orders as appear at the commencement of these reasons.

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 15 November 2016.

Associate: 

Date:  15 November 2016