Bacchiega & Ors & Hamilton

[2011] FamCA 1030

FAMILY COURT OF AUSTRALIA

BACCHIEGA AND ORS & HAMILTON [2011] FamCA 1030

FAMILY LAW - CHILDREN - The parents and paternal grandparents to have equal shared parental responsibility – Due to unacceptable risk to the child in the mother’s current household equal shared time or substantial and significant time held not to be in the child’s best interests. 

Family Law Act 1975 (Cth)

FIRST APPLICANT: Mr Bacchiega

SECOND APPLICANTS: Ms Bacchiega and Mr Bacchiega Senior

RESPONDENT: Ms Hamilton

FILE NUMBER: NCC 2503 of 2011

DATE DELIVERED: 23 December 2011
Ex tempore

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 9 December 2011

REPRESENTATION

COUNSEL FOR THE FIRST AND SECOND APPLICANTS Ms Burns

SOLICITOR FOR THE FIRST AND SECOND APPLICANTS Bale Boshov Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Gol

Orders pending further order:

1. That the father Mr Bacchiega and the mother Ms Hamilton and the paternal grandparents Ms Bacchiega and Mr Bacchiega Senior have equal shared parental responsibility for the child N, (“the child”) born … August 2008.

2. That the child shall live with the father and the paternal grandparents by arrangement between themselves.

3. That the child shall have telephone communication with the mother at any reasonable time the mother telephones.

4. That the mother be restrained from allowing the child to be carried in a motor vehicle without a properly fitted age appropriate child restraint.

5. That the mother be restrained from physically disciplining the child or allowing any other person to do so.

6. That the mother be restrained from causing the child to come into any form of contact with either of the following persons:

   6.1Mr M born … 1984;  and

   6.2Mr H born … 1989.

1. That the mother be restrained from taking the child to the premises at B Street, Town A, NSW or allowing any other person to do so.

2. That the mother be at liberty to attend the child’s pre-school on all special occasions when parents would normally be invited to attend.

3. That each of the parties keep the other informed at all times of their current address and telephone number and advise of any changes to these details as soon as practicable.

4. That each of the parties immediately notify the other by placing a call or sending a text message to the other party’s mobile telephone number in the event that the child requires medical attention whilst in their care , and provide the other party with such details including the location of the child, the treating medical professional’s details and the reason why the child required the medical attention (if known) and permit the other party to attend with the child at the medical centre/hospital.

5. That the child shall spend time with the mother as follows:

   11.1at any time by prior arrangement in the home or presence of the paternal grandparents;

   11.2overnight on any occasion when the mother is able to stay overnight in the home of one of the following relatives:

(a)Ms S (Maternal Great Grandmother);

(b)Ms G (Maternal Great Aunt);

(c)Mr G (Maternal Great Uncle):

11.3on not less than three occasions per week unsupervised; for periods of up to three hours and failing agreement, otherwise:

(a)on Tuesday and Thursday from 9.00 am to 12.00 noon;

(b)on Saturday from 12.00 noon to 3.00 pm;

(c)on the mother’s birthday from 9.00 am to 12.00 noon.

changeovers shall be at Contact Centre C at Suburb D unless otherwise agreed between the parties.

1. The parents and paternal grandparents shall take all necessary steps, including but not limited to completing an intake process, to engage with Contact Centre C.

2. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bacchiega and Ors & Hamilton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC2503 of 2011

Mr Bacchiega

First Applicant

And

Ms Bacchiega and Mr Bacchiega Senior

Second Applicants

And

Ms Hamilton

Respondent

REASONS FOR JUDGMENT

1. The child N, (“the child”) aged three years is the only child of the relationship between Mr Bacchiega (26) and Ms Hamilton (20).

2. The parties met in March 2007, when the mother was 16 and the father 22.  They soon began living together, first at the home of the mother’s grandmother then, after two months, with the father’s parents.  By the end of that year the mother was pregnant with the child.

3. Early in 2008 the parents moved away to live independently.  The child was born in August 2008.

4. The father worked and the mother cared for the child with the assistance of the paternal grandparents and her own grandmother.  The child stayed away from his mother overnight with his paternal grandparents for the first time when he was six months old.  Thereafter by arrangement, the paternal grandparents regularly cared for the child overnight.  Relationships between all parties were good.

5. In late 2009 the paternal grandparents bought a house in Suburb E which they rented to the parents. 

6. The relationship between the parents slowly broke down and in June 2011, they separated.  The mother and the child moved out of the property, the father remained living there.  The child was then almost three years old.

7. There is no dispute that between themselves, the parents agreed that the child would live with his mother and spend weekends and other special times with his father and/or his paternal grandparents.  The father paid child support.

8. Soon after separation the mother says she began a relationship with Mr M.  Mr M is 26.

9. In about August/September 2011 the mother and the child moved to live with Mr M in his family home at Town A.  Mr M’s parents live in the property and also his younger brother Mr H aged about 22.

10. The mother says it was her intention to stay with the family of Mr M until she had saved sufficient money for private accommodation[1].  On her behalf, it was submitted that the mother’s situation is a very difficult one, financially and through withdrawal of the support of her own extended family.  These will be matters for exploration in a final hearing.

    [1]  Affidavit of Mother sworn 11.10.2011, par 22

The child is tied up

1. On 16 September 2011 there was an incident at the family of Mr M’s home involving the child, the mother and Mr M.  The incident bears careful analysis.  It led to an urgent interim application. 

2. The first account is provided through the father’s affidavit[2] where he sets out what the mother told him.

   [2]  Affidavit of Father sworn 22.09.2011, pars 18-22

3. The mother sent a text to the father which included statements such as:

   … We tied him up.

   … his hands and feet for a joke he was laughing;

   we hog tied him.

4. The mother does not endorse or dispute the contents of the text messages allegedly sent by her to the father, but agrees she did send texts.

5. After receipt of that text the paternal grandfather collected the child from the mother that afternoon. 

6. The father later observed the child to have rope burn marks and bruises.  He was not his usual self.  The child is alleged to have said to his father:

   [Mr M’s first name] tied me up.

   Q:       Were you laughing?

   A:       No it was scary and dark time.

7. The father took the child to hospital and reported the matter to the relevant authorities and made a decision not to return the child to the mother’s care.

8. In her response to the application, the mother provided a second version of the incident[3].  She said that on the day in question, the child had been teasing a large puppy tied up at Mr M’s family home and would not desist despite her words to him.  

   [3]   Affidavit of Mother sworn 11.10.2011, pars 23-31

9. The mother says she and Mr M got some rope and “we tied [the child] to the clothesline for no more than 15 seconds.  [The child] was laughing and carrying on.”  She said they tied the rope around one end of the clothesline and [the child’s] hand only.  [The child] got upset.  They untied him and the dog jumped on his back.  The mother says she saw a mark on the back of [the child’s] neck from the dog.

10. The third version of the incident is contained in the second affidavit of the mother[4].  The mother says:  “The incident with [the child] being tied up was a learning game that myself and [Mr M] were playing with [the child].”  She does not say what the learning element of the game was.  Perhaps it was to teach the child what it was like to being tied up (as the dog had been).  It is impossible to know.

    [4]  Affidavit of Mother filed 30.11.2011, par 43

11. The mother says “no rope was tied tightly”, it was loosely over his hands and at first the child was laughing and his mother was wrestling with him.

12. On balance I consider it likely that the child was tied up, became frightened, was injured by the rope and further hurt by the dog.  That much is supported by the evidence of both parents and the photographs[5].

    [5]  Exhibit 2 - Photographs

13. There are defended proceedings pending in the Local Court on … February 2012.  The matter will be explored in the context of apprehended violence proceedings.  The incident itself appears to have arisen from immature and ill advised conduct by the mother and Mr M.

14. However I accept that there had been no previous issue between the parents over mistreatment of the child and that neither of them is alleged to have hurt him in the past.

15. The significance of the incident is that:

    1.The mother takes on or at least shares the responsibility with Mr M for tying the child up. 

    The child himself tells his father, “[Mr M’s first name] tied me up.”  Mr M gives no independent account.  He agrees with the mother’s version.

    2.Mr M’s mother refers in her affidavit to the dog jumping on the child and “probably causing any injuries.”  This appears to be defensive of her family; blaming the child.

    3.Subpoena issued on behalf of the father revealed a concerning pattern of conduct by Mr M over the past 10 years[6]. 

    A pattern of explosive anger, threats including death threats being made by Mr M, both verbally and by the brandishing of weapons to:

    (a)his mother Ms M;

    (b)the police on more than one occasion;

    (c)a previous girlfriend.

    There is also material relating to violent threatening and sexually aggressive behaviour by Mr M’s younger brother.

    [6]  Exhibits 4 & 5 – COPS notes and criminal history of Mr M

16. Mr M has had a mental health assessment in 2001 after one such incident and was found not to have a mental illness.  There are references to Mr M having a violent and explosive temper.  If the matter proceeds to final hearing, no doubt the issue of Mr M’s psychological health and conduct will be fully explored.

17. The risk of the child being exposed to violent aggressive incidents in Mr M’s family home is an unacceptable one.

18. On an interim basis it is appropriate for the child to remain living with his paternal grandparents and father as he has for the past three months.

Time for the child with his mother

1. All parties accept that the child needs to spend time with his mother.  Until three months ago she was his primary carer.  It is in his best interests. 

2. However his physical and psychological needs must be met.  The child is anxious and apparently frightened of Mr M.  Until the evidence can be tested, I must take a conservative approach and protect the child.  He should not be brought into contact with Mr M.

3. In circumstances were the mother is living with Mr M in his parent’s home, the child should not be taken to that property.

4. The mother is unable or unwilling to live in independent accommodation at this time.  Accordingly she will not be able to spend time with the child “at home” in the usual way.

5. The evidence does not support the mother herself representing an unacceptable risk of physical or psychological harm to the child.  I am less confident about her mothering in the presence of Mr M.

6. Accordingly the orders restrain the mother from bringing the child into contact with Mr M and his brother.  However the child’s emotional need for regular time with his mother must be met.

7. There is a long waiting list for supervision in a Contact Centre.  I am told the mother’s family are unsupportive of her at this time.  Supervision by a family member is unlikely.  There is a risk that the child could be brought into contact with Mr M if the mother is not supervised.

8. In balancing this risk against the harm to the child created by separation from his mother, I have concluded that short periods of unsupervised time are appropriate.

Parental Responsibility

1. Each parent has responsibility for a child until that child is 18 years unless there is a Court order otherwise.

2. Parenting orders are now being made.  Accordingly, pursuant to s 61DA(1) of the Act, I must apply a presumption that it is in the best interests of this child for his parents to have equal shared parental responsibility.

3. On an interim basis the presumption applies unless inappropriate circumstances apply.  These parents have provided good care for the child.

4. Because he is now living both with his father and with his paternal grandparents, it is appropriate for the paternal grandparents to have some authority for decision making, at least until a final determination of the matter.

5. The paternal grandparents have been supportive of their son and the mother and despite the upheaval of recent months, relationships are still good.  This is a credit to all parties and a benefit for the child.  Accordingly, all four parties should share in decision making.

Time with each parent

1. The parents and paternal grandparents have equal shared parental responsibility.  Therefore I must consider whether the child spending equal shared time, if reasonably practicable, would be in the child’s best interests.

2. In this matter such a proposal would be reasonably practicable in terms of distance travelled and costs.  However for the reasons set out above, including unacceptable risk to the child in the mother’s current household, I do not consider that equal shared time or substantial and significant time would be in the child’s best interests.

3. Accordingly, orders are made to promote a meaningful relationship with both parents and to protect the child from physical and psychological harm.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on

23 December 2011.

Associate: 

Date:  23 December 2011