Alessi & Ramont (No 2)

[2021] FCCA 2162

FEDERAL CIRCUIT COURT OF AUSTRALIA

Alessi & Ramont (No 2) [2021] FCCA 2162

File number:	ADC 5084 of 2020
Judgment of:	JUDGE YOUNG
Date of judgment:	16 August 2021
Catchwords:	FAMILY LAW – parenting – concerning two children who are five and four years old – where there was a physical altercation between the father and the mother at changeover – where the physical altercation occurred in the presence of the children – order for changeovers to occur at the B police station.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	13
Date of hearing:	16 August 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Pascale of Pascale Legal Barristers & Solicitors
Counsel for the Applicant:	Mr Charman
Solicitor for the Applicant:	Adelta Legal

ORDERS

ADC 5084 of 2020

BETWEEN:

MR ALESSI

Applicant

AND:

MS RAMONT

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	16 AUGUST 2021

THE COURT ORDERS:

1.Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children X born in 2015 and Y born in 2016 born and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

2.Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

3.The time the children spend with the mother pursuant to paragraph 2 of the Orders made on 30 November 2020 shall be amended as follows:-

(a)In week one, with the mother from 4:30pm Thursday until 3:00pm Sunday;

(b)In week two, with the mother from 4:30pm Thursday until 2:00pm Saturday;

4.That changeover of the children occur as follows:

(a)Inside the B police station at 4.30pm NOTING the father is to wait inside the station for the mother to leave;

5.That both parties are restrained and injunctions granted restraining them from abusing, harassing, assaulting, threatening or intimidating the other.

6.That the father is restrained from attending at the mother’s residence without prior written consent of the mother.

7.That the matter is already listed on 2 December 2021 at 9.30am for trial directions.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Alessi & Ramont (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an urgent application about two children: X, who is five years old, and Y, who is four years old.

2. In 2021 there was an unfortunate incident during changeover.  Without going into the details of what is alleged, I do have a report from the co-located police officer at the Adelaide Registry of the Federal Circuit Court. The report states what the police officers from the police station observed on 4 July 2021, that is:

   Ms Ramont [the mother] and Mr Alessi [the father] were seen to have a physical confrontation in a police station carpark following custody handover.  Police observed both parties shouting, with Mr Alessi approaching Ms Ramont in an aggressive manner causing her to step backwards until she was against a vehicle.  Mr Alessi was then seen to recoil, consistent with being struck.  Police observed blood coming from Ms Ramont’s nose.  Police assessed that there were nil grounds for an assault charge, as Mr Alessi, who was filming the altercation, was seen to provoke and corner Ms Ramont before she lashed out.

3. This incident precipitated the mother’s urgent application brought on today. It is merely an incident in a long history of incidents between these two parties. It appears that in the past the parties have regularly provoked, insulted and needled each other whenever they get near each other.

4. Contrary to the police’s assessment that there were “nil grounds for an assault charge”, in my view, there were grounds for charging each of them for assault. In the case of the father there were grounds because his advance towards the mother arguably led her to apprehend an imminent and unwelcome physical contact which constitutes an assault. In the case of the mother there were grounds, generally speaking, in relation to what appeared to be punch of the father in the nose. It is arguable that this action of the mother was done in self-defence, however in my view, it was disproportionate to a defence and was a retaliation that constituted an assault.

5. The children were present during that incident in 2021. It was a disgraceful episode for which both parties bear responsibility. It reflects extremely poorly on both of them. While I cannot make this finding because I have not heard from the parties, the fact that something of this kind took place in front of the children very arguably constitutes a form of abuse.

6. The mother is, not surprisingly, concerned about her security, however, she opposed my proposal that changeovers in the future take place at a children’s contact centre. The mother’s opposition to this proposal came after learning of the limited availability of changeover times at the Melbourne children’s contact centre which would mean there would have to be a change in the time the children spend with the mother. It would likely be that the present time spent of five nights a fortnight would be reduced to four nights a fortnight.  The mother is opposed to any such reduction and it follows that she is opposed to all changeovers taking place at the children’s contact centre.  She proposes that changeovers take place at the B Police Station. I am somewhat reluctant to adopt the mother’s proposal because, in part, I am not satisfied that it constitutes any significant improvement in security for the mother.

7. The mother proposes, in addition, that the father will remain inside the police station until changeover has taken place and the mother has left the police station.  That is some form of increased security for her and the father does not oppose that.

8. In addition, the mother wants an injunction directed towards the father to prevent him from abusing, harassing, assaulting, threatening or intimidating the mother.  I think that is a minimal position, but having regard to what I have read in the police material I think that that should be applied to both parties.

9. I assume there is no resistance to an injunction directed to the father that he is not to attend at the mother’s residence without her written consent so I propose to make that order. 

10. These parties did not provide me with an outline of anything else they agreed on. As the matter was set down for this urgent hearing only in relation to time issues, I do not propose to entertain any of the other matters that arose. 

11. There will be an order for the appointment of an independent children’s lawyer.

12. There will be an order that the changeover of the children is to take place as per the mother’s proposed orders at 2A and 2B – that is at the police station with the father to remain inside.

13. There will be an injunctive order concerning both parties that they are not to abuse, harass, assault or threaten each other, and the father is not to attend the mother’s residence without her prior written consent.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       23 September 2021