Pullman and Garafolo (No 2)

[2020] FamCA 1143

FAMILY COURT OF AUSTRALIA

PULLMAN & GARAFOLO (NO. 2) [2020] FamCA 1143

FAMILY LAW – CHILDREN – Where final orders previously made following a defended hearing affording sole parental responsibility to the father, that the child should reside with the father and other orders as to ancillary matters – Where orders that the child spend time with the mother three nights per fortnight were made on an interim basis to allow the mother an opportunity to complete a period of therapy with a psychiatrist – Where the husband now seeks for the mother’s time to be reduced to one night a fortnight – Where the husband deposes that the child has been returning from time with the mother distressed suggesting the mother has been engaging in inappropriate behaviours in front of the child – Where the father objects to the mother taking the child to Sunday Mass  – Where the mother denies that she has been engaging in any un-child-focused activities and contends that she should have additional time with the child – Where the husband’s evidence is accepted and orders are made reducing the mother’s time with the child – Where in the context of the father having been afforded sole parental responsibility, it is found that it is open to the father to prevent the child from attending church every second week – Where orders made on an interim basis to allow the wife an opportunity to obtain a further psychological report

Family Law Act 1975 (Cth)

Paisio & Paisio (1979) FLC 90-659

APPLICANT: Mr Pullman

RESPONDENT: Ms Garafolo

INDEPENDENT CHILDREN’S LAWYER: Ms Macgregor

FILE NUMBER: MLC 6923 of 2017

DATE DELIVERED: 7 December 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: McEvoy J

HEARING DATE: 7 December 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hannan

SOLICITOR FOR THE APPLICANT: Rush & Hampshire

COUNSEL FOR THE RESPONDENT: Mr Leeton

SOLICITOR FOR THE RESPONDENT: MMH Lawyers

INDEPENDENT CHILDREN’S LAWYER: Ms Macgregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Macgregor Solicitors

Orders

1. Paragraph 14(b) of the orders made by the Honourable Justice McEvoy on 9 January 2020, be varied to provide that the child spend time with the mother as follows:

   (a)each alternate weekend from 9.30 am Saturday until 5.30 pm Sunday with changeover to occur at the Father’s home at the commencement of time and the mother’s home at the conclusion of time.

2. Paragraph 14(e) of the orders of 9 January 2020 be varied to provide that subject to orders 14(i) and 15(e) of the orders of 9 January 2020 remaining in full force and effect, the child spend time with the mother for one week in the long summer holidays commencing 5.00 pm the last day of school in even numbered years and commencing 5.00 pm on 17 January in alternate years.

3. Paragraph 14(c) of the orders of 9 January 2020 be varied to provide that time on Wednesday evenings take place from the conclusion of school (or 3.30 pm on a non-school day) until 7.00 pm with changeovers to occur at school (on school days at the commencement of time) and otherwise at the father’s home at all other times.

4. Paragraph 14(g) of the Orders of 9 January 2020 be varied to provide that the child spend time with the mother as follows:

   (a)on the child’s birthday, in even numbered years, if a school day, the child to have 30 minutes telephone time with the mother at 6.00 pm initiated by the father and the child to spend 4 hours with the mother on the day following her birthday from the conclusion of school or 3.30 pm if a non-school day or if a weekend, from 9.00 am until 2.00 pm;

   (b)on the child’s birthday, in odd numbered years, if a school day, from the conclusion of school or 3.30 pm if a non-school day, until 7.00 pm or if a weekend, from 2.00 pm until 7.00 pm;

   (c)on the child’s birthday, if it falls on a weekend with the mother, time spent with the father to be from 9.00 am until 2.00 pm in even numbered years and 2.00 pm until 7.00 pm in odd numbered years.

5. Save and except for Easter day and Christmas day/eve which fall in the mother’s time, the mother be restrained from taking the child to any religious event or instructing the child in religion unless by written agreement with the father.

6. The mother attend upon Dr. C for the purpose of obtaining an updated Psychiatric Report (“the Report”) in relation to the mother and provide such report to the Independent Children’s Lawyer (ICL) and the father and mother’s legal practitioners. The ICL to make application to Victoria Legal Aid to meet the costs of the Report and the mother to meet the costs of any shortfall.

7. The ICL to provide Dr. C with a copy of his Honour’s judgments dated 9 January 2020 and 7 December 2020 and copies of all reports the mother has received from her treating Psychiatrist Dr. L.

8. It is requested that Dr. C include in his report details regarding the effectiveness of the mother’s treatment and the degree to which it has impacted upon her capacity to parent the child.

9. The ICL be at liberty to liaise with and obtain a report from the child’s play therapist, Ms. V. It is requested that Victoria Legal Aid fund the cost of such report.

10. The mother’s response to an application in a case of 3 December 2020 be dismissed.

11. The matter be listed for an interim defended hearing at 10.00 am on … April 2021.

AND THE COURT NOTES THAT:

A.Although today’s proceeding had been listed as a mention, it was approached by the parties, by their applications and in their material, and ultimately by the Court as an interim defended hearing and was heard on that basis.

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 Pullman & Garafolo 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 MELBOURNE

FILE NUMBER: MLC 6923  of 2017

Mr Pullman

Applicant

And

Ms Garafolo

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 9 January 2020 the Court made final orders dealing with parental responsibility, residence and ancillary matters.  Interim orders were made for the child to spend time with the mother, essentially on a three night per fortnight basis. The orders in relation to parental responsibility were that the father have sole parental responsibility subject to an obligation to consult with the mother in relation to the making of any long-term decisions.

2. The orders concerning the child’s time with the mother were made on an interim basis so as to give the mother an opportunity to complete a period of therapy with a psychiatrist. It was contemplated that by about now the parties would be able to agree on a regime for the making of final orders, or there would need to be a further brief hearing on the question of what final orders should be made in relation to time.

3. By an application in a case dated 20 November 2020 the father seeks a variation of the orders for time, reducing the child’s overnight time with the mother to one night per fortnight, and for certain other orders.  The orders he seeks were slightly amended before me in argument today, and they are as follows:

   1.Paragraph 14 (b) of the orders made by The Honourable Justice McEvoy on 9 January 2020, be varied to provide that the child spend time with the mother as follows:

   a)each alternate weekend from 9.30 am Saturday until 5.30 pm Sunday with changeover to occur at the Father’s home at the commencement of time and the Mother’s home at the conclusion of time

   2.Paragraph 14 (e) of the orders of 9 January 2020 be varied to provide that subject to orders 14(i) and 15(e) of the orders of 9 January 2020 remaining in full force and effect, the child spend time with the mother for one week in the long summer holidays commencing 5.00 pm the last day of school in even numbered years and commencing 5.00 pm on 17 January in alternate years

   3.Paragraph 14 (c) of the orders of 9 January 2020 be varied to provide the time on Wednesday evenings take place from the conclusion of school (or 3.30 pm on a non-school day) until 7pm with changeovers to occur at school (on school days at the commencement of time) and otherwise at the father’s home at all other times.

   4.Paragraph 14(g) of the Orders of 9 January 2020 be varied to provide that the child spend time with the mother as follows:

   i)on the child’s birthday, in even numbered years, if a school day, the child to have 30 minutes telephone time with the mother at 6.00 pm initiated by the father and the child to spend 4 hours with the mother on the day following her birthday from the conclusion of school or 3.30 pm if a non-school day or if a weekend, from 9.00 am until 2.00 pm;

   ii)on the child’s birthday, in odd numbered years, if a school day, from the conclusion of school or 3.30 pm if a non-school day, until 7.00 pm or if a weekend, from 2.00 pm until 7.00 pm;

   iii)on the child’s birthday, if it falls on a weekend with the mother, time spent with the father to be from 9.00 am until 2.00 pm in even numbered years and 2.00 pm until 7.00 pm in odd numbered years.

   5.Save and except for Easter day and Christmas day/eve which fall in the mother’s time, the mother be restrained from taking the child to any religious event or instructing the child in religion unless by written agreement with the father.

4. In broad outline the father, by affidavit affirmed 10 November 2020, deposes that the child’s time with the mother has not been a success. He refers to what he infers to have been the mother’s propensity to discuss the proceedings with the child, comments the child makes about the fact that she lives with him, toileting issues including pants wetting, and other aspects of the child’s presentation after she has spent time with the mother. He also voices objection to the mother involving the child in attendance at Mass on Sundays, in circumstances where he has determined that the child should no longer be raised in the Catholic faith or, at the very least, that she should no longer be exposed to attendance at Mass on a fortnightly basis.  I note in this regard that the father is prepared to concede that the mother be at liberty to take the child to Mass at Christmas and at Easter.

5. The mother, by contrast, in an affidavit sworn 3 December 2020, denies that she has been engaging in any un-child-focused activities with the child and contends that she should have additional time with the child. Her response to an application in a case dated 3 December 2020 seeks the following relief. She seeks, firstly, that the application in a case filed by the applicant on 10 November 2020 be dismissed. She seeks that paragraph 14(c) of the orders made on 9 January 2020 be varied such that the child spend time with the mother each Wednesday evening from the conclusion of school until 7.30 pm, with changeover to occur at the school at the commencement of time and at the father’s home at the conclusion of time.

6. She also seeks that paragraph 14(e) of the orders made on 9 January 2020 be varied such that the child spend time with the mother for three weeks in the long summer holidays commencing 5.00 pm the last day of school in even numbered years and commencing 5.00 pm on 10 January in alternate years. She seeks also that the child spend time with the mother on Easter Sunday each year, effectively, from 10.00 am to 2.00 pm. She seeks that the parties forthwith engage Ms W and attend upon her for parenting coordination sessions, and that they follow all directions and recommendations of Ms W. She seeks that the parties equally share any costs associated with attendance upon the parenting coordinator in accordance with paragraph 4, and she seeks such further and other orders as the Court deems appropriate.

7. The father’s position today initially was that the orders he seeks should be made on a final basis. However, the mother and the ICL have stated that they would wish the mother to have the opportunity to obtain a further report from Dr C, psychiatrist, as to her condition, which her present treating psychiatrist has confirmed in a letter dated 3 December 2020 may be referred to as a delusional disorder. Ultimately, the father accepted that the mother should have the opportunity to obtain such a report before the making of final orders, and he did not press for the orders he sought today to be made on a final basis.

8. In my assessment it would be desirable for the mother to have the opportunity to obtain a further report from Dr C before the making of final orders, together with a report from the child’s play therapist Ms V.  Accordingly, the orders I propose to make today will be interim orders and the matter will be listed for mention once again once these reports have been received so that final orders can be made.

9. Although today had been listed as a mention, both parties have made applications and filed material, and I determined that it was appropriate and in the best interests of the child for these applications to be determined today. In this connection I indicated to the parties that it would be appropriate, insofar as that was desired by each of them, that deponents of affidavits be cross-examined.  The father’s mother and his stepfather, who are also involved in the child’s care, had also made affidavits in support of the father’s position. They were available for cross-examination but counsel for the mother, after he had cross-examined the father, did not require these witnesses for cross-examination.

10. The father was cross-examined. His viva voce evidence was consistent with the broad tenor of his affidavit evidence. He was not effectively challenged on any of his evidence as to the way the last 11 months or so have progressed, and I accept his evidence, as I accepted his evidence in the trial. I regard him as a witness of truth.

11. I also accept the evidence of his mother and stepfather in their affidavits of 10 November 2020 which, as I have said, was not challenged by the mother.

12. The mother was also cross-examined. Her viva voce evidence was consistent with the tenor of her affidavit also when she was cross-examined. However, in several key respects I did not accept the mother’s evidence. Her assertion that she was fully supportive of the father having sole parental responsibility, and of the child living with him, cannot be accepted in light of the distress which I accept is being experienced by the child upon her return from the mother’s care. I accept that the mother is impermissibly discussing the case with the child, and in particular encouraging in her a belief that when she turns 12 the situation will be able to change. In all the circumstances I accept that the mother’s time with the child should be curtailed to one night per fortnight and that there should be a reduction in holiday time, as the father proposes. I also accept the time on a Wednesday evening should be curtailed in the manner set out in the father’s proposed orders.

13. I come to this view in the knowledge that the father has not sought prior to now to reduce the mother’s time. His position prior to the making of my January orders was that the mother should have more time with the child than I would otherwise have been prepared to allow. Despite my indication at the commencement of today’s mention that it may indeed be appropriate for the mother to be having no overnight time with the child, I regard it as noteworthy that the father did not press for there to be no overnight time.

14. His position, since he was placed in a position after the trial last year where he could have, unsupervised time with the child, has been that it would be undesirable for the child to be denied any time at all, other than supervised time, with her mother. I regard this, in all the circumstances, as most significant. It indicates to me that the father is child-focused, particularly insofar as he is concerned to ensure that there is a maintenance of the relationship between the child and her mother.

15. Similarly, I am confident that if the child presents consistently after having spent time with the mother in a way that would be compatible with the child spending additional time with the mother, then this is something that the father would be open to allowing. His conduct since December of last year in relation to the child’s time with the mother is, in my assessment, consistent with his holding a view along these lines.

16. Also relevant to my view that arrangements in relation to the mother’s time with the child should be revised consistently with the father’s amended orders is that it seems that the mother, whilst she says she accepts the diagnosis of delusion disorder, in fact does not do so inasmuch as she now seeks a further report on this issue. To my mind there is a basis for concluding that the mother has not yet come to terms with the nature of her illness and requires further psychiatric assistance in this regard. No doubt the provision of a further report from Dr C will assist the court in coming to a final view in relation to the present state of the mother’s psychiatric condition, and what implications that should have for future time.

17. It should be noted that I also accept that the revised arrangements that are proposed by the father in relation to time with the mother on the child’s birthday should be implemented on the basis that the present arrangements entail too much time travelling in the car and that they are not, in that sense, child-friendly.

18. On the question of the father’s proposed restraint of the mother taking the child to Mass every second Sunday, I accept that, having regard to the fact that the father has sole parental responsibility, it is open to him to decide that this particular major long-term issue (that is, the child’s religious and cultural upbringing) should be resolved in favour of her not being exposed to a particular religious practice every other weekend, it being the mother’s evidence that this would be what she would otherwise do. See in this respect s 4 of the Act and the definition of major long-term issues, s 65DAC of the Act dealing with shared parental responsibilities, and compare Paisio & Paisio (1979) FLC 90-659.

19. Despite the very able submissions of counsel for the mother that the child has been doing well in adverse circumstances, and that this reflects well on the mother, I am not able to accept, in the face of my attitude to the mother’s evidence, that any successes that have been enjoyed this year have been the result of the mother’s work. Rather, I regard this year’s successes to be the result of the work undertaken by the father, his mother and her husband.

20. I note, finally, the ICL’s submission that there is not sufficient evidence to interfere with the present regime, and that any interference should await the preparation and filing of a further report by Dr C.

21. I am afraid that I am unable to accept the ICL’s submission in this regard.  As I have said, in my assessment the time the mother is spending with the child is not assisting the child’s transition into the father’s care. In fact, on the evidence, I accept that it is impeding it. The evidence, in my assessment, does not support a continuation of the present arrangements. I accept, given the father’s openness to the child having time with her mother, that if some of the present difficulties recede over time, the father would be open to allowing an enlargement of the child’s time with the mother.  Accordingly, I will make the orders set out at the commencement of these reasons.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 7 December 2020.

Associate:     

Date:              12 March 2021