FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bead & Gaffin [2024] FedCFamC1F 779
File number(s): PAC 1564 of 2020 Judgment of: CURRAN J Date of judgment: 16 August 2024 Catchwords: FAMILY LAW – PARENTING – Where the final hearing was adjourned in circumstances where the father was charged with an offence concerning the sexual touching of one of the children subject to the proceedings – Where orders were made by consent for the children to live with the mother and for the older children to spend no time with the father in accordance with their wishes – Where there is a dispute as to what time the younger children should spend with the father prior to final determination of the matter – Where it is agreed that the paternal grandparents will supervise the children’s time with the father – Where the court considers orders to promote the safety of the children – Orders made for the children to spend time day time with the father during school holiday periods. Legislation: Acts Interpretation Act 1901 (Cth) s 15AA
Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 4(1), 60B, 60CA, 60CC, 69ZL
United Nations Convention on the Rights of the Child (1989) Art 19
Cases cited: Amalgamated Wireless (Australasia) Ltd v Philpott (1961) 110 CLR 617
Aon Risk Services v Australian National University (2009) 239 CLR 175
B and R and the Separate Representative (1995) FLC 92-636; [1995] FamCA 104
Corporate Affairs Commission NSW v Yulli (1991) 172 CLR 319
De Luca & Martinelli [2016] FamCA 207
Eastley & Eastley [2022] FedCFamC1A 101; FLC 94–094
Goode & Goode (2006) FLC 93-286
Isles & Nelissen (2022) FLC 94-092
Marvel & Marvel (2010) 43 Fam LR 348
Shamon & Shamon (No 9) [2023] FedCFamC1F 586
Division: Division 1 First Instance Number of paragraphs: 156 Date of hearing: 13 August 2024 Place: Sydney Solicitor Advocate for the Applicant: Mr Gittoes-Caesar Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Mr Hartwell Solicitor for the Respondent: Ann Legal Counsel for the Independent Children's Lawyer: Dr McConaghy Solicitor for the Independent Children's Lawyer: Christina Lam & Associates ORDERS
PAC 1564 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BEAD
Applicant
AND: MR GAFFIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
16 AUGUST 2024
THE COURT ORDERS THAT:
1.The children X, born in 2014, Y, born in 2016 and Z, born in 2017 shall spend time with the father supervised by at least one of the paternal grandparents, Ms Gaffin and Mr C Gaffin (‘the Paternal Grandparents’), after the filing of the undertaking as ordered pursuant to Order 4 made on 13 August 2024, as follows: -
(a)For Term 3, 2024, Term 4 2024 and all school holiday periods thereafter, on the first and second Saturday and Sunday of the school holidays from 9.00am to 5.00pm…
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- Bead & Gaffin [2024] FedCFamC1F 779
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- [2024] FedCFamC1F 779
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CaseChat Overview and Summary
The court found that it was in the children's best interests to maintain a connection with their father but needed to ensure their safety. The court took into account the serious allegations of family violence and the pending criminal charge against the father. The court concluded that the children should spend time with their father during school holiday periods, specifically on the first and second Saturday and Sunday from 9.00am to 5.00pm, supervised by the paternal grandparents. This decision was made to protect the children while still allowing them to spend time with their father. The court also noted the importance of the children’s wishes, particularly those of the older child, Y, who expressed a desire to spend time with his father.
The court ordered that the children would spend time with their father under the supervision of their paternal grandparents during the specified periods. The court intended to revisit the matter once the criminal proceedings against the father were concluded, ensuring that any further decisions would be based on the most current information. The court also instructed the father’s lawyer to inform the parties and the Independent Children's Lawyer of the outcome of the criminal proceedings. The matter was set to be mentioned again in May 2025, but could be re-listed if there were significant developments.
Orders
Orders of the court
PAC 1564 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS BEAD
Applicant
AND:
MR GAFFIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
16 AUGUST 2024
THE COURT ORDERS THAT:
1. The children X, born in 2014, Y, born in 2016 and Z, born in 2017 shall spend time with the father supervised by at least one of the paternal grandparents, Ms Gaffin and Mr C Gaffin (‘the Paternal Grandparents’), after the filing of the undertaking as ordered pursuant to Order 4 made on 13 August 2024, as follows: -
(a) For Term 3, 2024, Term 4 2024 and all school holiday periods thereafter, on the first and second Saturday and Sunday of the school holidays from 9.00am to 5.00pm with such time to take place in the City D region.
2. Changeover shall take place as agreed in writing between the parties, and failing agreement, at E Street McDonald’s, City D.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
There is one thing that has changed, and that is that the NSW police have now proceeded to charge the father, as I say on the basis that they must have formed a preliminary view about the evidence. I note however that these allegations are untested, but I cannot ignore the fact that charges have been laid and the late breaking event of the father being charged warrants a parent revisiting the orders that would best promote the safety of the children. I also note the ICL seeks orders for more limited and supervised time after consideration of all of the material the ICL has had access to, and that the mother has adopted the ICL’s proposed orders. The father’s perpetration of family violence after separation The mother alleges ongoing family violence after separation and contended to the Court Child Expert that him retaining the children was further behaviour that was coercive and controlling. The circumstances of the father retaining the children however are also dispute. This is not a matter about which I can make a finding on an interim basis. An ADVO was put into place in early 2023 for a two-year period following the father’s alleged breach of ADVO by sending 14 consecutive text messages in early 2023. That behaviour at least is post-separation. The father’s alcohol use It was contended that the father’s alcohol use posed a risk to the safety of the children. The mother reported to the Court Child Expert that the father drank to excess on a daily basis, exacerbating his violent and aggressive behaviours, and that the paternal family are heavy drinkers which previously made it challenging for him to change such behaviours. She expressed concern that his alcohol abuse was ongoing and impacting X, Y, and Z. The mother expressed that the father only submitted to carbohydrate-deficient transferrin (“CDT”) testing and waited for the end of the testing period, which she believes influenced his alcohol test results. I was not taken to the CDT test results in the evidence relied upon by either party. The father told the Court Child Expert that he does not use illicit substances. He also said that he is a social drinker and “finds these questions (regarding his use of alcohol) hilarious” because this issue has been discussed at length during parenting proceedings. He said he “enjoys a beer and a pie” while watching the football. He said as a condition of his employment, he is breathalysed on a daily basis, and he is not permitted on site if there is a positive reading. He said that he is unsure if further alcohol testing was ordered by the Court or requested by the mother, however, he said that his use of alcohol “can’t be too much of an issue” for her if she requested the children live with him. He denied allegations of drink driving stating, “I don’t have much to say, I haven’t been caught by police, I work in construction, I have had CDT testing”. The evidence relied upon in support of the submissions that the father’s alcohol abuse posed ongoing risk to the children references the reports made by the children to the Court Child Expert. It is important to note that the younger three children at the time of the initial meeting with the Court Child Expert, were living with the father and not the mother and had spent little time with her.