ALDANA & GARZA

[2018] FCCA 3004

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALDANA & GARZA [2018] FCCA 3004

Catchwords:
FAMILY LAW – Parenting – interim parenting proceeding – where the Father seeks orders for unsupervised time with the child – where the Mother opposes the application for unsupervised time – no risk to the child identified – orders made for unsupervised time with the Father.  

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 62G(2)

Applicant: MR ALDANA

Respondent: MS GARZA

File Number: MLC 2885 of 2018

Judgment of: Her Honour Judge C E Kirton QC

Hearing date: 15 October 2018

Date of Last Submission: 15 October 2018

Delivered at: Melbourne

Delivered on: 15 October 2018

REPRESENTATION

Solicitors for the Applicant: Ms Apak of Melbourne Lawyers & Mediators

Counsel for the Respondent: Ms Colla

Solicitors for the Respondent: MS Justice Legal

ORDERS

THE COURT ORDERS THAT:

1. The Applicant spend time with the child [X] born 2017  (“the child”):

   (a)Every Monday between 9:00 am and midday with changeover occurring at Play Centre in Suburb A;

   (b)Every Thursday between 8:30 am and 5:00 pm, with the Applicant to collect the child from Suburb B Shopping Centre at the commencement of time and the Respondent to collect the child from Suburb B Shopping Centre at the conclusion of time;

   (c)Special occasions to be shared equally as agreed in writing between the parties; and

   (d)As otherwise agreed in writing between the parties.

2. The Respondent shall advise the Applicant of the details of the child’s medical practitioners, paediatrician and maternal health nurse.

3. Pursuant to s.62G(2) of the Family Law Act 1975 (Cth) the parties and the child attend upon a Family Consultant nominated by the parties for the purposes of the preparation of a Family Report (“the Family Report”) to be filed with the Court no less than 35 days before the Final Hearing listed on 12 March 2019 at 10:00 am (“Final Hearing”).

4. The Family Report to deal with the following matters:

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth); and

   (c)the likely effect on the child if the Court were to make Orders in terms of the Applicant/Respondent’s proposed orders;

   (d)any other matters that the Family Consultant considers important to the welfare or best interests of the child.

5. The parties send copies of all of their Court documents to the Family Consultant within seven (7) days of being requested to do so by the Family Consultant. 

6. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

7. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

8. If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyers to) notify the relevant Family Consultant of his or her need to attend Court no less than 21 days prior to the Final Hearing.

9. If a party is not represented by a lawyer, then within seven (7) days of being notified of the Family Consultant that party deliver or cause to be delivered to the Family Consultant copies of the following documents:

   (a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

   (b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

   (c)any family violence intervention or restraining orders currently in force.

10. Unless otherwise ordered, no person shall release the Family Report, or provide access to the Family Report to any other person.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 the Annexure and these particulars are included in these orders.

B.At the date on which a copy of the Family Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

C.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

IT IS NOTED that publication of this judgment under the pseudonym Aldana & Garza is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2885 of 2018

MR ALDANA

Applicant

and

MS GARZA

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. The Applicant’s application is to vary interim orders made on 9 July 2018, for the time spent with the child of the relationship [X] born on 2017 who is now some 15 months old.  The parties married on 2015.  The Applicant says separation took place on 2017 and the wife says separation occurred on 17 November 2017.  In any event, the separation took place some two years after the marriage.  The husband commenced this proceeding on 16 March 2018.  On the first return date, on 24 April 2018, the husband appeared in person.  At that time, he had not seen [X] since December 2017.  On that date a s.11F report was ordered and the matter was adjourned to the Duty List on 9 July 2018.

2. The s.11F Child Inclusive Memorandum to the Court is dated 12 June 2018, and was prepared by Clare Tilley (Ms Tilley).  On 15 June 2018 final orders in relation to property matters were made by Registrar Moser at a Conciliation Conference.  The matter came back on 9 July 2018 in the Duty List and on that occasion both the Applicant and the Respondent were represented.

3. On that occasion, relevant parenting orders were made as follows:

   a)That the parties have equal shared parental responsibility for the care, welfare and development of [X].

   b)That the child spend time with the Applicant, initially on a supervised basis, for such supervision to be conducted by the Family Contact Services.

   c)That the cost of supervision shall be shared equally between the parties.

   d)That the child shall spend time with the Applicant:

   i)Twice per week for two hours for a period of six weeks, with the supervisor being at liberty to terminate time earlier in the event the child cannot be settled after reasonable efforts;

   ii)After six weeks three times per week for three-hour periods;

   iii)On 2018, on the child’s birthday, for a period of two hours; 

   e)The days and locations that the child is to spend with the Applicant be determined by the supervisor upon mutual consultations with the parties, and such supervision locations may include the Applicant’s family home.  

   f)The parties shall ensure they complete and sign all necessary paperwork and applications for supervision by 4:00 pm on Friday 13 July 2018.

   g)The parties shall ensure they do all things necessary in a timely manner to facilitate the child spending time with the Applicant and for the supervisor to provide reports to the Court and to the parties. 

4. It would be fair to say that the orders made on 9 July 2018 in relation to parenting reflected the suggestions made in the s.11 Report provided to the Court by Ms Tilley.

5. The Applicant is presently spending time with [X] in accordance with paragraph 4(b) of the orders made on 9 July 2018, that is, three times per week for three-hour periods.  The time with [X] has been spent at the Playcentre in Suburb A or at a nearby park.  All times have been supervised by the professional supervisor.  I am advised by the Applicant’s solicitor who appears today that from 26 July 2018 to date, a period of some two and a half months, there have been 24 sessions of two or three hours.  The affidavit of Ms V, filed on 11 October 2018 at page 65, confirms that there have been 22 sessions, some 54 hours supervised time that the Applicant has spent with [X] since 26 July 2018.

6. This matter has been set down for trial in relation to parenting matters on 12 March 2019 for two days.  Today, the Applicant seeks to change the orders made on 9 July 2018 in relation to the time spent with [X] as follows: 

   a)[X] shall spend time with the Father

   i)Every Monday between 9.30 am to 12.30 pm with changeover occurring at Playcentre in Suburb A; 

   ii)Every Thursday between 8.30 am to 5.00 pm, with the Father to collect [X] from Playcentre in Suburb A at the commencement of time and Mother to collect [X] from McDonald’s car park located at Suburb C at the end of time; 

   iii)Every Saturday between 8.30 am to 5.00 pm with the Father to collect [X] from Playcentre in Suburb A at the commencement of time and the Mother to collect [X] from the McDonald’s car park located at Suburb C at the end of time;

   iv)Special occasions to be shared equally as agreed in writing between the parties;

   v)As otherwise agreed between the parties.

   b)From 5 January 2019, [X] shall spend time with Father, that [X] commence overnight-time as follows: 

   i)Every Tuesday between 9.30 am to 12.30 pm with changeover occurring at Playcentre in Suburb A; 

   ii)Every Thursday between 8.30 am to 5:00 pm with the Father to collect [X] from Playcentre in Suburb A at the commencement of time and the Mother to collect [X] from the McDonald’s car park located at Suburb C at the end of time;

   iii)Every alternate weekend from Saturday 8.30 am to Sunday 5.00 pm with the Father to collect [X] from Playcentre in Suburb A and at the commencement time the Mother to collect [X] from McDonald’s car park located at Suburb C at the end of time;

   iv)Every alternative Saturday between 8.30 am to 5.00 pm with the Father to collect [X] from Centre in Suburb A at the commencement of time and the Mother to collect [X] from McDonald’s car park located at Suburb C at the end of time;

   v)Special occasion to be shared equally between the parties; and

   vi)As otherwise as agreed between writing.

7. I have indicated, prior to these reasons for decision, to the Applicant’s solicitor that I would not entertain an application for overnight time on an interim basis prior to the trial of this proceeding.  In my view, it is wholly inappropriate in the circumstances, given [X]’s age and development, being only 15 months at this point in time, and also the amount of contact that she has had, time that she has spent with the Applicant at this stage.

8. The Applicant relies today upon his affidavit filed on 11 October 2018; the affidavit of Ms V, a senior worker with Family Contact Service, filed on 11 October 2018; and an affidavit of Mr E, a supervisor at the Family Contact Service which was filed on 11 October 2018.  The Respondent relies upon her affidavit filed on 12 October 2018. 

9. The Applicant lives in Suburb C, the Respondent lives in Suburb D.  The parties live approximately one hour’s drive apart in heavy traffic, or 45 to 50 minutes in lighter traffic.  The Respondent proposes, as I am advised by her counsel, that the Applicant spends time with [X] on Monday, Thursdays and Saturdays between 9.30 am and 12.30 pm, with one day now being spent at the Applicant’s residence.

10. I have now had the opportunity to read the affidavits filed in this proceeding, and in particular, the summary provided by the Family Contact Services affidavit of Ms V and Mr E.  The summary is overwhelmingly positive in relation to the Applicant’s participation in time spent with his daughter.  In particular, I note the following comments of Ms V on pages 66 and 67 of her Affidavit:

    The visits have progressed exceptionally well with [X] remaining reasonably settled overall.  There is no doubt that [X] identifies her father as a significant person now and has developed a strong bond with him.  She has been observed to enjoy spending time with her father. 

    Mr Aldana has been punctual and outstanding in terms of his preparation for visits to date.  He has provided [X] with exceptional quality time and age appropriate activities, often considering [X]’s development needs and how to foster her growth, development and wellbeing to a high standard. 

    [The] father has been able to ensure [X]’s safety exceptionally well. 

    Father is nurturing, loving and attentive.  There have not been any concerns regarding his interaction with [X].  Mr Aldana has always remained patient and focused on his daughter.  He has never been assessed as exhibiting signs of aggression during the allocated time, not towards the worker or [X].  In essence, no safety concerns have been observed during the supervised sessions.

    The father has been highly compliant, respectful and has taken all directions and suggestions/recommendations on board with a view of effectively co-parenting [X] with Ms Garza.  There have not been any issues regarding the father’s behaviour or conduct during the visits.

    It is the writer’s observation of this case that a transition of home visits would be beneficial for Mr Aldana to continue to develop his parenting capacity in a more family friendly environment, a home safety assessment was successfully completed on 5.9.2018 by Family Contact Service worker Mr E. 

11. It is also apparent that the interruption to [X]’s morning sleep has been causing mid-morning drowsiness and also possibly interruption to her eating routines.  This is noted in the summary of these affidavits where it says:

    There has been an ongoing issue with Mr Aldana experiencing difficulty feeding [X] at times and Ms Garza has maintained that [X] regularly returns to her care hungry.  Mr Aldana has taken feeding suggestions on board and has been seen trying his utmost best to feed [X] as per mother’s instructions and offer her homemade healthy food options to promote her health.  The worker believes [X]’s feeding difficulties associated with the environment and [X]’s routine being disrupted.  According to Ms Garza, [X] is no longer having her morning nap on the day she sees her father hence has often been observed being tired at commencement of visits.  This in turn results in her becoming overtired to have lunch.

    Worker suggested to Ms Garza waking [X] up from her overnight sleep so that she could put her down for the morning nap before scheduled time with her father, however Ms Garza has not wanted to implement this change. 

    It seems apparent that the scheduled visits have been disrupting [X]’s established routine with her mother which has been a source of angst for Ms Garza.  Ms Garza seems to prioritise [X]’s routine over the time spent with Mr Aldana given her young age.

12. In these circumstances, the Respondent has not been able to demonstrate to the Court any circumstance in which the Applicant’s contact should continue to be supervised.  He has undertaken and completed a parenting program and presents as nothing but a father who is seeking to develop his relationship with his daughter.  It is the Court’s view that he should be given a limited opportunity to parent [X] without a supervisor present prior to a family report being prepared.

13. Therefore, I propose on an interim basis to adopt some of the orders proposed by the Applicant, and I propose to do that on the basis of the schedule provided, which I understand was provided by the Respondent, of [X]’s daily routine which appears in paragraph 14 of the Applicant’s affidavit filed on 11 October 2018. I am satisfied that pursuant to s.60CA of the Family Law Act 1975 (Cth) that it is in the best interests of [X] to make the following orders, and in making the following orders I pay particular regard to s.60CC(2)(a).

14. First of all, I will be ordering a s.62G(2) Family Report.

15. In relation to the further orders sought by the Applicant, I note that there is already an order in relation to the communication book, which was made on 9 July 2018.  So there’s no need for that to be duplicated.  Paragraph 4 of the proposed order that the Respondent shall make [X] available for contact with the Applicant at all times unless she is able to provide a medical certificate advising that [X] is medically unfit to travel in the car, I do not propose to make that order either.  This matter is coming on for final hearing soon.  If [X] is unwell, a medical certificate should be provided and there are contravention proceedings if that persists along those lines.  So the Applicant has other ways of dealing with that.

16. I will order that [X] shall spend time with the Applicant every Monday. I am going to change it to 9.00 am to make it a bit earlier, to midday, with changeover occurring at the Play Centre in Suburb A.

17. The order I am going to make is that the child spend time with the Applicant every Thursday between 8.30 am and 5.00 pm with the Applicant to collect [X] from Suburb B Shopping Centre, because I have adopted the rationale that the Respondent has put that there be a break in the travelling arrangements each way.  So it is every Thursday between 8.30 am with 5.00 pm with the Applicant to collect [X] from Suburb B Shopping Centre at the commencement of time and the Respondent to collect [X] from Suburb B Shopping Centre at the end of time.

18. There will be special occasion time to be shared equally as agreed in writing between the parties.

19. There will be time spent as otherwise agreed in writing between the parties.

20. In relation to the proposed order, the Respondent shall advise the Applicant of details of [X]’s medical practitioners, paediatrician and Maternal Health Nurse.  Given the antagonism that seems to exist between the parties, that order should be in place at all times.  So the order will be that the Respondent shall advise the Applicant details of [X]’s medical practitioners, paediatrician and maternal health nurse, but not the latter part of that paragraph.

21. Proposed orders (6) and (7), in my view are premature and more appropriately dealt with by way of final hearing at this point in time.

22. That will be made as a matter of course in relation to parenting orders.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Kirton

Date: 24 October 2018