Presta & Callari
[2025] FedCFamC2F 324
•3 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Presta & Callari [2025] FedCFamC2F 324
File number(s): MLC 1455 of 2025 Judgment of: JUDGE O'SHANNESSY Date of judgment: 3 March 2025 Catchwords: FAMILY LAW – Interim parenting – Final orders made by consent in May 2022 – Where parties consent to applicant father resuming spend time with children following ex parte intervention order – Intervention order suspending time with children based on reports by mother and children’s therapist – Where father alleges mother has a history of making false accusations and coaching children to do same – Whether children should continue treatment with therapist – Therapy suspended unless parties agree in writing it should continue – Father ordered to consult therapist and inform himself of children’s therapy – Family therapy and report ordered. Division: Division 2 Family Law Number of paragraphs: 24 Date of hearing: 3 March 2025 Place: Melbourne Counsel for the Applicant: Ms Paterson Solicitor for the Applicant: Taussig Cherrie Fildes Counsel for the Respondent: Ms Dellidis SC Solicitor for the Respondent: Coulter Legal ORDERS
MLC 1455 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PRESTA
Applicant
AND: MS CALLARI
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
3 MARCH 2025
THE COURT ORDERS THAT:
1.This order is inconsistent with the interim intervention order made in early 2025 case number … (“IIVO”) and varies the IIVO as follows:
(a)Until further order of this court the children:
(i)X born in 2013 (“X”);
(ii)Y born in 2016 (“Y”); and
(iii)Z born in 2018 (“Z”)
are permitted to spend time and communicate with the father, MR PRESTA (“the Father”) in accordance with the orders made in the Federal Circuit and Family Court of Australia on 30 May 2022 (“Final Orders”) and in particular the Father will not be in breach of the IIVO if he does anything which is permitted by the Final Orders.
AND THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
2.The Children spend time with the Father as follows:
(a)From the conclusion of school on 6 March 2025 until 7 March 2025 at the commencement of school;
(b)From 14 March 2025 and for the balance of Term 1 2025, in accordance with order 3.i.i of the Final Orders;
(c)From the commencement of Term 2 2025 Order 3i.i. of the Final Orders be varied to provide that the children spend time with the Father:
(i)During school terms each alternate weekend from the conclusion of school Friday (or 3:30pm if a non-school day) until the commencement of school Monday (or 9.00am if a non-school day), commencing 2 May 2025, and resuming after each school holiday period in the same cycle each as if uninterrupted by school holidays;
(d)Order 3 i.ii.D of the Final Orders be varied to provide that the children spend time with the Father during the Term 1, 2025 school holidays for the second half (coinciding with the Easter period pursuant to order 3i.iv of the Final Order) rather than the first half and Order 3.i.ii.D otherwise continue in full force and effect.
3.The parties do all things necessary to forthwith resume attending upon Ms B commencing with a joint session on 6 March 2025 and thereafter comply with her recommendations as to further appointments in compliance with order 17 of the Final Orders.
4.The parties do all things necessary to attend with the children upon a family therapist for non-reportable family therapy on the following bases:
(a)The family therapist to be chosen by the mother from a list provided by Ms B;
(b)The parties share equally the cost of such therapy.
(c)The parties follow all lawful directions of the therapist with respect to the frequency and structure of appointments and make the children or any of them available to attend sessions as directed by the therapist.
5.The parties be restrained from physically disciplining or chastising the children or any of them, without admission for the necessity of such order.
AND THE COURT ORDERS THAT:
UNTIL FURTHER ORDER
6.The parties be and are restrained from causing the children or any of them to continue attending upon Ms C, psychologist, unless there is agreement in writing between the parties.
7.The Father do all acts and things necessary to consult with Ms C on 7 March 2025 for the purposes of informing himself as to Ms C’s engagement with Z and Y and their needs.
8.The mother, MS CALLARI (“the Mother”), do all acts and things to provide Ms C with a copy of the Family Reports of Mr D.
AND THE COURT ORDERS BY CONSENT THAT:
9.The parties otherwise be restrained from taking any of the children to any psychologist or therapist other than:
(a)with the prior written agreement of the other parent;
(b)on the written recommendation of Ms B; or
(c)pursuant to an order of this Honourable Court.
AND THE COURT ORERS THAT:
10.The parties and the children attend upon Mr D on 15 May 2025 for a family report, at the Father’s expense in the first instance, with the ultimate expense to be determined by the trial judge in the event of a trial.
11.All extant applications for interim relief be and are otherwise dismissed.
12.The matter be listed for Directions Hearing on 24 June 2025 before Judicial Registrar Lung via Microsoft Teams.
13.There be liberty to apply to the chambers of Judge O’Shannessy on short notice.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge O’Shannessy:
These are the settled reasons of a judgment delivered ex tempore pursuant to the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
Background
In the matter of Presta & Callari, the applicant father, Mr Presta (‘the Father’), is 48 years, and the respondent mother, Ms Callari (‘the Mother’) is 46 years. The parties are fortunate to have experienced solicitors and counsel who, despite the highly contentious nature of the proceedings before them (as is apparent from what is now the consent orders in regard to the resumption of the Father’s time with the children), considerable grief and expense to the parents has been, for the time being, short cut.
The short history is that the parties have three children: X, who is 11 years old; Y, who is 8 (almost 9); and Z, who is 6 (collectively, ‘the children’). The youngest child, Z, has some behavioural needs, or is alleged to have in the context of having been assessed and granted funding by NDIS. It is also apparent from the parties’ material and the fact that previous proceedings resulted in final orders by consent in May 2022, that the parents litigated long and hard with two family reports, an assessment by a psychiatrist and an assessment by a psychologist of the parents.
The parents were married in 2011, and they separated on 9 December 2019. At the time of separation, the parents and the children were living in Queensland and the Mother subsequently moved to Melbourne. The Court orders of May 2022 provide for the Father to spend alternate weekend time from Friday evening to Sunday evening, and school holiday time, and contemplated interstate travel. From the middle of the following year, 2023, the Father moved to Melbourne and now lives not too far distantly from where the Mother has lived and now lives in a different residence in the same suburb.
It is clear from the nature of the incontrovertible communication between the parents that they have a very poor personal relationship or communication style. As recently as January of this year, there was a wave of communication between the parents where each of them were very unhappy about who would care for the children on a particular weekend in February (each wanted the other parent to care for the children that weekend). Many thousands of dollars later, that weekend was resolved by default in the circumstances where the children were seen by a therapist, Ms C (‘the Therapist’), who had previously been seen by the children and, it is alleged, not known to the Father). As a result of things it is said were said to the Mother and to the Therapist, the police got involved, and an intervention order application was made, ex parte. That application suspended the Court orders that had been obtained in May 2022 after, I infer, thousands upon thousands of dollars and hundreds of hours of legal and professional support to each of the parents to work out their children’s living arrangements. The Intervention Order application includes the following:
… The two children have had regular engagement with a psychologist over the past 6 months as this behaviour is not out of character for RESP. Police contacted this psychologist who disclosed professionally with a duty of care that the children have presented hysterical not wanting to be in the care of RESP with fear of retribution and retaliation as a result of reporting the abuse to AFM. …
The Father has not seen the children since.
The controversial therapist
The orders of May 2022 provided that the parents were to have equal shared parental responsibility for long-term decisions, which includes decisions about medical treatment. Those orders included the following:
Medical and Health matters
14. Each of the mother and the father:
a.Immediately notify the other of any medical emergency, serious illness or injury experienced by the children, requiring medical treatment or hospitalisation while the children are in their care respectively;
b.Forthwith inform the other or any medical, dental or other health practitioner with whom the children are scheduled to consult with or have consulted with and the details of any hospital attended by the children and authorise the other parent to make all reasonable enquiries of such practitioner(s) and/or hospital in respect of matters concerning the children’s health and medical treatment;
c.Forthwith provide the other with copies of any reports or records provided to them respectively by any hospital or medical, dental, orthodontic or other health professional attended by the children; and
d.Be and hereby authorised to provide a copy of these orders to any hospital or medical, dental or other health professional attended by the children.
The Mother alleges that there are aspects of medical arrangements that the Father did not notify her of beforehand, in January of this year. The Mother asserts that she believes that the Father was informed of the therapy with the controversial therapist, whose therapy commenced in May of 2024 and has been more or less each month since for Z and then, in November, for the child, Y. The next appointment with the Therapist was to be 28 February 2025.
The Father says that he learned of the Therapist’s involvement by the reference to a psychologist in the intervention order when it was served upon him and then, after correspondence between solicitors on 20 February, he was notified of the identity of the Therapist that he says, unbeknown to him, has seen his youngest child on eight occasions and his middle child once. It is common ground in the proceedings that the overwhelming inference is that the Therapist, having seen the family (being the Mother and the children) on 24 January 2025, made a notification to Child Protection (as I would assume she was mandated to do) on 28 January 2025, a few days later.
That is complicated because of what the Father alleges to be the circumstances of the previous proceedings, whereby it is alleged by him that there were not only false accusations made against him in regard to sexual misconduct with the children, but that the children were coached to make false statements to a therapist which set off a whole train of litigation. The Father asserts, and recites in his affidavit, passages of what he says is a communication that he has discovered post the May 2022, orders that was made prior to those orders and made prior to the children seeing a therapist about their abuse. He sees the January 2025 events as a repetition of those historical events and that gives rise in his mind, he says, to a real concern of the controversial therapist being inadvertently involved in an effort to retard or destroy his relationship, or at least, impede his relationship with the children. On his case, the circumstances have uncanny aspects in common.
The Mother’s case is that the Father has long been uncommunicative to her and has refused to come to grips with the nature of the child, Z’s, need for therapy and that the behaviour of the children and the demanding nature of that behaviour, together with the Father’s refusal to be involved with it, is exasperating.
Disputed proposed orders
Fortunately, this day, with the assistance of their lawyers, the parties have largely formed agreement by the document that is ‘exhibit A’ as to the way forward. By these orders, the Father will resume time with the children, notwithstanding that that time is inconsistent with the intervention order made ex parte in early 2025. These reasons stand for why I am making that order. I am satisfied that the orders, insofar as they are agreed, are in the children’s best interests. Part of the reason I am satisfied is that I have the two parents consenting to those orders when represented by experienced solicitors and counsel. What is disagreed is orders 6, on the one hand, or whether there should be orders 7, 8 and 9, on the other.
The effect of this disagreement is whether the Therapist should continue with therapy for the children, now with the involvement of the Father, and with the Therapist having the knowledge of the previous family reports of Mr D which presumably would provide her with context to the children’s behaviour. What has to be balanced is the potential harm to the children of the continued involvement of the Therapist who had long been involved as a therapist without the Father’s involvement in the context of the existing court orders.
These being interim proceedings, I am not in a position to make factual findings about whether the Mother’s asserted belief about the Father knowing of the Therapist’s involvement is reasonable or not. However, looking at the totality of the evidence and what I have in the submissions, it is implausible that the Father would know of the engagement of the Therapist, in the context of the previous proceedings and then not make inquiries of the Mother about that and/or not make inquiries of the Therapist about that. There is a risk to the children of their welfare being impeded if a therapist intending to be solely motivated by the welfare of the children (as I accept she would be) has been influenced or, to use the common word that does not adequately describe it, but it is sufficient enough, tainted by the overall circumstances if continuing with that therapy.
In the meantime, it is common ground that an occupational therapist will continue to see Z and that by these orders, the family, including the children, will see a family therapist for therapy. It is controversial as to when the family should commence that therapy, and whether the family should see Mr D. The Mother’s position is it is too early. It is premature, she says, let us see what happens with the re-engagement with the section 65L counsellor, Ms B, and the family therapy before that invasive matter of a family report is engaged upon. In order to give context to that disagreement, I need to briefly summarise and report the uncontroversial events of January, prior to the complaints about the Father physically assaulting two of the children.
Prior to that alleged assault, the complaint and controversy between the parents was whether the Father was spending enough time with the children and the Mother, consistent with her instructions from her counsel to this day of exasperation, was pressing for the Father to spend more time with the children. Each of the parties were fixated on a particular weekend in February. I do not know what each of them would otherwise be doing on that weekend in February, but I sure hope it was important, given that I am concerned about the welfare of these children. Each of them insisted that the other care for the children on that weekend in February. One said that the plans could not be changed because there were already arrangements made. The other insisted that the plans needed to be changed because of arrangements that needed to be made. Each wanted the children to spend time with the other parent on that weekend. Despite that dispute, in accordance with the Court orders, the children went to Queensland with the Father for the Court-ordered time, and it is during that time that it is alleged that the Father disciplined, or assaulted, two of the three children. The Father resolutely denies that assault or discipline.
It is now common ground that both parties are restrained from physically disciplining or chastising the children or any of them, though each denies the necessity for such an order. I add that I am not satisfied that the full extent of the family’s history, circumstances, and context to their dispute about their parenting of the children was provided to the police or the Magistrates’ Court when the intervention order of early 2025 was made. I also noted the unusual order of May 2022: that is the restraint on the Mother contacting or reporting to SOCIT or Child Protection, or a sexual assault service.
Balancing all of those matters, I am not satisfied that, at the current state of play, the continuation of the Therapist being involved in these children’s lives is in their best interest. It may be. The order will be that the parents, plural, until further order are restrained from any of the children continuing to attend the Therapist, unless there is written agreement between them.
I am also satisfied that the orders that the Mother seeks, that as in 7 and 9, should be made. The Father should consult the Therapist, and the sooner, the better. It may be that it is appropriate that the Therapist continues to be involved, but not until the Father has had the opportunity to consult the Therapist and reflect upon whether that therapy would be in the children’s best interests, or not. I will not make order number 8 because I will be making order number 6 in the terms of both parties be restrained from causing children to be consulted by the Therapist until further order. This is not a reflection on the Therapist, as I suspect she was quietly going about her profession when asked to see children, (and not provided with the whole of the information) and she did so.
The other controversy is whether the family should consult Mr D in the context of the Father’s current application that the children change residence. I make no comment about whether that change of residence is or will be appropriate in the future. Nonetheless, I am satisfied that given the complexity of the family relationships in this case, that the assistance of Mr D is necessary and sooner, rather than later.
I accept the submission that Mr D should see the children once they are back in the pattern of having spent some time with the Father and I note that, in any event, on the day of the existing facility that is available for the family to attend upon Mr D (15 May 2025), the children are with the Mother, and she will be taking them there.
In terms of the expense, the Mother is engaged full-time in home duties and has some capital behind her in the capital of the former matrimonial home. I am satisfied that the Father should pay the whole of the expense of Mr D in the first instance, subject to any other order later on as to whether the ordinary rule that the parties should equally pay for expert reports should be followed, but the expense should be met by the Father in the first instance. Part of my reasoning for that is that I want to make sure that that event happens, rather than bogging down in a dispute about who has what money available to them. Neither family appears to me to live high on the hog, and both appear to be of modest circumstances and the good value expenses on lawyers, so far, appear to be a tragedy. However, it would appear to be necessary for the best interests of the children.
Hence, I will make the order 11 as sought in the first line of the proposed order, but the second part will be at the Father’s expense in the first instance, with the ultimate expense to be determined by the trial judge in the event of a trial.
The matter will be listed for a directions hearing at a date that we will arrange with the judicial registrar, which I will fix as 24 June 2025 and I will also add liberty to apply to Judge O’Shannessy on short notice.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 13 March 2025
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