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FLAST CASE SUMMARY: Rocacelli & Seles [2019] CHILDREN – Interim Hearing

Rocacelli & Seles [2019] FamCA 105 (28 February 2019)

FLAST CASE SUMMARY: A father seeks to change existing interim parenting orders before trial,the orders were previously made permitting the father to only communicate with the child by Skype for 30 minutes each fortnight, which is to be supervised at a Contact Centre.The mother and ICL oppose the proposal. The father in essence is now seeking a move for unsupervised telephone calls for one hour a week and to commence 3 face-to-face visitations at the contact centre, which would then graduate to unsupervised visitations if successful.

There is history of family violence with several police applied protection orders (one is in force) there have been breaches of the orders on occasion, the father has been charged and convicted at least twice.A psychiatrist assessed the father and claims he displays significant traits of Anti-Social Personality Disorder.

The child who is approaching 11 years of age has expressed her wish not to spend face-to-face time with the father.

FACTS SUMMARY:

  • There are competing proposals.
  • The child is approaching 11 years of age.
  • 28 January 2018, Family Report Writer asserts for a more cautious approach, suggests limiting time with the father and child to supervised Skype time that is to occur at a Contact Centre.
  • 17 May 2018, a Psychiatrist asserts the father displays significant traits of Anti-Social Personality Disorder, and recommends the father to only have Skype sessions with his daughter and that she continue to live with the mother.
  • July 2018, orders were made permitting the father to communicate with the child by Skype for 30 minutes each fortnight, which is to be supervised by the Contact Centre.
  • 9 October 2018, the father seeks changes to the existing interim parenting orders before the trial to commence unsupervised phone calls for one hour pre week and for face-to-face time to begin at the contact centre 3 times before graduating to unsupervised time if successful.
  • 25 October 2018, Contact Centre report states the Skype calls would be suspended if the father continued to breach the Service Agreement by raising unsuitable issues with the child.
  • The mother and ICL propose that existing arrangements continue until trial.
  • Domestic violence orders have been applied from time to time between both parties, one is currently in force, the father has breached orders on occasion, and has been charged and convicted of doing so at least twice.
  • The father was occasionally incarcerated as a result of sentencing for criminal convictions during the relationship.
  • Child has expressed views of not wanting to do face-to-face visitations with the father.

ISSUE:

  • Does the father pose any risk of harm to the child in an unsupervised setting?
  • Is there a benefit to the child having a relationship with the father?
  • What are the Child’s views?

HELD:

The father’s Application in a Case is dismissed the present orders are maintained.

In determining this matter, the judge considered the relevant statutory pathways and cases, combined with the opinions and recommendations from the psychiatrist and Report Writer (their opinions remains untested). Both professionals assert there is a concern for the fathers behaviour, and suggest no face-to-face time, only supervised Skype communication time between father and child. The Contact Centre reports do not ease the concern of the father’s alleged risk to the child. There has been instances the father raised unsuitable issues with the child, and seems to be fixated with himself, rather than being entirely concentrating on the child.

 The judge was satisfied there were adequate evidence presented to cause concern about the father’s ability to emotionally control himself, this may put the child’s safety at risk due to his actions.

Furthermore, the father asserts the child has been swayed by the mother to form the view she has of him. It was established there were significant scepticism to this claim due to the earlier notes that were provided by the contact centre that demonstrated the childs view may be sincerely held by her, this is in alignment with her past behaviour and earlier remarks relating to the type of comfort she experiences with her father.

It was determined that being at an interim stage in the proceedings, it’s problematic to correctly measure the level of risk which the father may pose to the child. However, based on the evidence provided a cautious approach at this point is in the best interest of the child by maintaining the current order, for there is benefit to the child to have a meaningful relationship with the father provided that she is kept safe. The child’s views were acknowledged and given weight due to her maturity and age, however it was not determinative.

There is a pending trial in April, where the issues which highlight the concerns about the father and risk can be determined at trial. 

Relevant legislation pathway and cases that were drawn upon in determining this matter:

  • Part VII of the Family Law Act contains the statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects.
  • Section 60CA in deciding whether to make a parenting order, the court must regard the best interests of the child as the paramount consideration.
  • s 60CC. The matters which a court must have regard to in determining the best interests of a child are set out. Consideration does not mean discussion: Banks & Banks[2015] FamCAFC 36 at  [49].
  • s 61DA Deciding whether the presumption for equal shared parental responsibility applies or not in the best interests of the child due to reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption.
  • Goode & Goode (2006) FLC 93-286 at 80,903 the Full Court set out the way in which an interim parenting application should be determined.
  • Salah & Salah [2016] FamCAFC 100 the Full Court at [36]-[40] said this in relation to the task of a judge conducting an interim hearing where disputed facts are unable to be resolved:[36] It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to "the usual pathway as highlighted in Goode & Goode(2006) FLC 93-286".
  • The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel [2010] FamCAFC 101;  (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.
  • Harridge & Harridge [2010] FamCA 445 outlines a list of inquiries in relation to risk assessment.

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