Abulafia and Geary

FAMILY COURT OF AUSTRALIA

ABULAFIA & GEARY

[2013] FamCA 506

FAMILY LAW – CHILDREN – Interim matters – Where the supervisor of the father’s time is alleged to have not complied with Court Orders and the requirements of a supervisor appointed by the Court – Where there has been an incident in which the mother has been physically injured by the father and the father has been charged with two criminal offences – Whether the father’s time with the child should be suspended pending an interim hearing in which cross-examination of the principal parties will be taken – Where there is evidence that the mother’s emotional wellbeing and the child’s psychological adjustment may be affected if the father’s time is not suspended – Where the Court finds that the father’s time should be suspended pending the interim hearing

Family Law Act 1975 (Cth)

APPLICANT:

Mr Abulafia

RESPONDENT:

Ms Geary

FILE NUMBER:

PAC

395

2013

DATE DELIVERED:

26 June 2013

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

26 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Livingstone

SOLICITOR FOR THE APPLICANT:

Ms Rafton

Rafton Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Schonell

SOLICITOR FOR THE RESPONDENT:

Ms Serci

Champion Legal

Orders

That the matter is listed at 10 am on 16 August 2013 before his Honour Justice Watts.
That the subject child shall live with the mother.
That I suspend until 4 pm on 16 August 2013 any order for the father to spend time with the child.
That by consent, orders are made in accordance with paragraphs 1, 2, 3, 4, 5, 6 and 7 as amended of the document initialled by me and dated today and placed with the papers, copy annexed hereto.
That each party shall, contemporaneously with affidavits to be filed, file a statement of their financial circumstances.
That the parties shall each comply with Rule 19.04 on each occasion the matter comes before the Court.
That the parties shall not communicate with each other by any means whatsoever save through their legal representatives.
That I reserve the costs of the parties of today to be determined at the final hearing by the Judge having conduct of this matter.

IT IS NOTED that publication of this judgment by this Court under the pseudonym
Abulafia & Geary 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 PARRAMATTA

FILE NUMBER: PAC 395 of 2013

Mr Abulafia

Applicant

And

Ms Geary

Respondent

REASONS FOR JUDGMENT

Introduction & Background

The matter before me today concerns the welfare of the parties’ child M, (“the child”) who was born in June 2012.
The matter was before me on 11 March 2013, at which time I made Orders for the father to spend time with the child on Wednesday and Saturday of each week for a period of time, with such time to be supervised by the father’s wife.
The father’s wife, Ms B, was present in Court on that occasion. She gave evidence. She was subject to short cross-examination, and following that evidence being taken, I ordered that she be the supervisor for the purpose of the father’s time with the child.
Since that time there has been evidence accumulated by the mother concerning the father’s behaviour on occasions when he has spent time with the child. Material is put before me in a form that at final hearing would not be accepted, by means of an affidavit of the mother herself attaching reports by commercial or private inquiry agents. Parts of that document are relied upon by the mother to show that the father and his wife have not always complied with the Orders requiring supervision, having regard to what the father’s wife assured me she understood to be required of her as a supervisor.
In addition, and of more significance for today’s proceedings, is that which occurred on 17 May 2013. On that occasion, doing the best I can, the father went to the mother’s premises. He did so, he asserts, as a result of a specific request or invitation by the mother that he do so. I have not heard particular evidence from either party in this regard, and I take it that the mother’s evidence will be somewhat different to the assertion made by the father in that respect.
Thereafter, and doing the best I can, the father did not enter the premises. For some reason, and he attributes it to a concern as to the presence of the mother’s brother, he went back to his vehicle. Whatever then happened, it is clear that the father has been charged with two offences – one of causing grievous bodily harm to the mother, and the other of failing to stop and render support after an accident. The father makes it clear that he is vehemently defending these matters.
Usually, of course, an interim hearing in this Court would be on the papers, that is, the documents filed by the parties. I have been handed a list today of the documents that each of the parties rely upon, which I annex to these reasons for Judgment.
However, each of the parties have indicated that because of the extraordinary circumstances of this case, and I accept that they are extraordinary, it would be appropriate before reaching even an interim determination that some opportunity be given for cross-examination, particularly of the principals in this matter. In the circumstances of this case, I agree that that is an appropriate course. To my mind, that which will be dealt with in such a hearing, may well have significance for a period of time. Without prejudging the issue, it may well be argued that the matter should not come back to this Court until the criminal proceedings against the father have been finalised and the result of those proceedings is known.
The question for me to then determine until the matter comes back before the Court on 16 August 2013 (the date to which I propose to adjourn the matter) is whether the father should continue to have any time with the child, or whether time should be suspended. It is also pressed upon me that, absent such an order having been made on 11 March 2013, and to make sure that there is no possible misunderstanding, I should make an order that the child shall live with the mother. I propose to make that order.
I turn then to what is to be done so far as the father’s time with the child is concerned. The Family Law Act 1975 (Cth) makes it clear at section 60CC(2) that what must be taken into account is the child having a meaningful relationship with both parents balanced against the need to protect the child. The child in this case is very young. It is not a case where the periods she has presently been spending with the father have been extensive. However, I accept that it is a significant step to prevent the father from seeing the child at all until the matter is back before the Court.
The risk to the child is something more difficult to define in this matter. There is the mother’s case that she is concerned that the father might endeavour to abduct the child. There is the mother’s case that the father and his wife have not abided by the Orders that were previously made, and that is certainly a matter of dispute. I am concerned as to the effect on the child of her father spending time with her, at least until this matter can be further investigated. It is clear that from the report of Mr C, which is attached to his affidavit sworn 26 June 2013, that he considers that the continuation of Orders for the child to spend time with the father would be a matter of concern for the mother. He says at what is subparagraph (a) on page 5:-
Any current requirement for time between the child and the father would likely produce a further debilitating effect on [the mother], with the potential of undermining her parenting confidence and capacity. She would be predicted to suffer emotionally during changeover and contact periods, possibly passing this (unconsciously) onto [the child] and disturbing the child’s future psychological adjustment.
There are, created by that paragraph, to my mind, two distinct risks. They are:-
·the risk to the wellbeing of the mother for a relatively short period of time; and
·the identified possibility that, because of the mother’s condition, the child might be detrimentally affected.
In the circumstances of this case, I do not believe it is necessary for me to look at the matters that would otherwise be involved as set out in subsection 60CC(3) of the Act.
This is a very young child. I note that the mother has been the parent principally concerned with the care of the child. It seems to me at this time that her capacity to care for the child is not able to be criticised. The father’s time so far has been both limited, and until otherwise established, carried out in the presence of his wife. In all the circumstances, it is proper, in my view, to suspend the father’s time with his daughter until this matter can come next before the Court. I am satisfied that this is an appropriate course in light of the circumstances as they are known to the Court at this stage.
What I do propose to do, as very fairly suggested by the mother’s counsel at the commencement of these proceedings, rather than discharge the Orders for the father’s time with the child, is to suspend those Orders until 4.00 pm on 16 August 2013 so that it will be necessary for the matter to be revisited and for a determination to be made. In saying that, I am in no way to be seen to be prescribing the manner in which any other Judge would deal with this matter.
The orders that I then make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 26 June 2013.

Legal Associate:

Date: 3 July 2013

ANNEXURE

Mother’s Documents

Application in a Case F 20 June 2013

Affidavit of mother F 20 June 2013

“ “ 24 June 2013

Affidavit of Mr D F 20 June 2013

Affidavit of Mr C F 26 June 2013

Orders Local Court made 11.6.2013

Email from father 13.3.2013

Reference will be made to father’s affidavits

Father’s Documents

Application in a Case F 21 June 2013

Affidavit of father F 21 June 2013

Child Responsive Memorandum 25 June 2013

[2013] FamCA 506

Key Legal Topics

Areas of Law

Family Law

Criminal Law

Legal Concepts

Consent

Costs

Jurisdiction

Remedies

Charge