Cecchi and Kalloway and Ors

[2018] FamCA 209

FAMILY COURT OF AUSTRALIA

CECCHI & KALLOWAY AND ORS [2018] FamCA 209

FAMILY LAW – CHILDREN – Risk of exposure to family violence – relationship with paternal grandparents

Family Law Act 1975 (Cth) s 60CC(3)(b), (e), (f) and (m)

APPLICANT: Ms Cecchi

RESPONDENT: Mr Kalloway

SECOND RESPONDENTS: Mr A Kalloway and
Ms B Kalloway

INDEPENDENT CHILDREN’S LAWYER: Robinson McGuinness

FILE NUMBER: CAC 326 of 2014

DATE DELIVERED: 13 March 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 13 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wright

SOLICITOR FOR THE APPLICANT: Central West Legal Pty Ltd

SOLICITOR FOR THE RESPONDENT:	Self-representing
SOLICITOR FOR THE SECOND RESPONDENTS:	Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr K Robinson

Orders

1. C shall spend time with the paternal grandparents from 8:30am on the Saturday until 5:30pm on the Sunday, on each fourth weekend that the father is due to spend time with the child, commencing on the second such weekend the father is due to spend time with the child following the making of these orders provided that:

   a.The paternal grandparents or either of them collect and return the child to and from the precincts of the F Town Police Station at the commencement and end of their time.

   b.Save for the time the child is due to spend time with her father under the existing orders the paternal grandparents not bring the child into contact with the father.

   c.The paternal grandparents shall notify the mother in the event that the child suffers any illness or injury requiring medical treatment whilst in their respective care as soon as possible after such illness or injury occurs.

2. The father is restrained by injunction from spending time with the child when she is in the care of the paternal grandparents pursuant to Order 1 above other than in accordance with the orders of 8 November 2017 that provide:

   The child spend time with the father, unless otherwise agreed, each alternate weekend as follows:

   a.From 10am until 4pm on Saturday; 

   b.From 10am until 4pm on Sunday; and

   c.At such other times as agreed between the father and the mother.

IT IS NOTED THAT

AThat provision does not act as a modification of the current orders and that those orders provided for alternate weekend time.

IT IS FURTHER ORDERED THAT

1. The mother shall:

   a.Authorise all schools/kindergartens which the child shall attend from time to time to provide to the father and the paternal grandparents at the expense of the father and or the paternal grandparents, copies of all school reports, school notices, and school photographs in relation to the child.

2. The child shall have telephone communication with her father each Tuesday and Saturday between 5pm and 5.30pm that she is not in the father’s care and has not spent time in the father’s care that day.

3. The child shall have telephone communication with her paternal grandparents on the first Sunday of each month between 5pm and 5.30pm when she is not in the paternal grandparents care and or has not spent time with the paternal grandparents that day.

4. The child shall have telephone communication with her mother each Saturday between 5pm and 5.30pm when she is not in her mother’s care and or spent time with her mother that day.

5. The child shall have telephone communication with her father between 4pm and 4.30pm on her birthday if she is not otherwise in her father’s care.

6. The child shall have telephone communication with her paternal grandparents between 5pm and 5.30pm on her birthday if she is not otherwise in her paternal grandparent’s care.

7. In the event that the child is not in her mother’s care on her birthday then the child shall have telephone communication with her mother at the time that the party whose care she is in would otherwise have time spent.

8. To enable the telephone communication as noted in Orders 4-9 the father shall provide the child with a prepaid mobile telephone which the parties can use to contact the child on.  This mobile is to travel with the child between the respective homes and is not to be removed from the child’s possession whilst in that person’s care.

9. All parties shall ensure that they assist the child to contact the other parties at all times that the child requests such telephone contact using the mobile telephone that the child has been provided with.

10. The parents are restrained by injunction from using illicit drugs 48 hours prior to time spent with the child and during any time spent with the child.

11. All parties are restrained by injunction from discussing these proceedings, the parties’ past relationship and the circumstances of the parties’ separation, with the children or in the presence or hearing of the children and on all forms of social media including posting information about the child on social media and or allowing third parties to do so, however the parties agree that this Order does not relate to any school that the child shall attend from time to time.

12. All parties are restrained from denigrating the other party or any member of a party’s household in the presence of the child or within the hearing of the child and allowing or permitting a third party to do so including on all forms of social media. 

13. The matter is otherwise relisted for trial directions on 23 July 2018.  It is noted that it is intended that this matter will be listed for final trial in the second half of 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cecchi & Kalloway and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 326 OF 2014

Ms Cecchi

Applicant

And

Mr Kalloway

Respondent

And

Mr A Kalloway and Ms B Kalloway

Second Respondents

REASONS FOR JUDGMENT

1. The contest before me today involves the paternal grandparents seeking variation from the current orders which allow them to spend time with the child one Sunday per month from 10am to 4pm, being on a weekend that is not one of the father’s weekends with the child.  This results in three out of the four weekends each month being spent with the paternal family.  They seek in substitution for this that the child spend the weekend from 3.30pm Friday until 4pm Sunday on the last weekend of each term with them.  This will potentially also act as a de facto increase in the father’s time with the child.

2. There are significant factual contests in this matter which are unable to be resolved at present.  The mother alleges significant family violence by the father, primarily directed towards her but no solely towards her.  There is also an allegation of some violence in the relationship between the father and the paternal grandparents.  These are matters that have been commented upon in the previous interim judgment in this matter.  The father and the paternal grandparents say that in large part what the mother says about these matters are inventions or lies.  They further say that those inventions impact upon the mother’s capacity to parent.  The mother and father also each allege that the other suffers from mental health issues which impact upon their capacity to parent. 

3. The current application is made in the context of a recently prepared family report which gives recommendations, although those recommendations are directed towards the final hearing of the matter rather than an interim hearing of the matter.  On a final basis they recommend that the paternal grandparent’s time with the child be maintained as at present because in the long term more time would impinge too far upon the child’s weekly activities as she grows up.  They also encompass the idea that the child would get to spend further time with the paternal grandparents as the father’s time with the child increased.  They recommend for the father that whether or not a history of family violence is made out that there would be an extension to the time that he currently spends, being an extension to overnight time contingent upon him participating in various courses. 

4. At present the father’s time with the child is limited to day-time only.  The current proceedings, which lack the father serving any material on the other parties, provides no justification at present for a change of that position. 

5. The mother resists change to the current interim arrangements, at least in respect of the time that the child spends with the paternal grandparents. 

6. The focus of the mother’s case involves concerns as to exposure of the child to family violence.  Ultimately by the orders that she seeks in the proceedings she does not oppose the paternal grandparents spending time with the child nor does she oppose the paternal grandparents spending time with the child with the father, contingent on him completing some courses.  This area of risk of family violence is in the context of the previous problems between the father and the paternal grandparents and it is now also in the context of allegations made by the mother of the child’s comments about arguments occurring between the father and the paternal grandparents.  

7. There is a risk of exposure to family violence from the father which have led to the previous orders being made that restricted the time that he used to spend with the child.  It can be observed that the paternal grandparents face significant practical difficulties in having short visits to the child.

8. The family report makes observations of the paternal grandparents’ relationships with the child.  The reporter notes that there is free flowing exchange between the paternal grandparents and the child and exchange of smiles, are keenly engaged, there is a warm engagement and there is consistent guidance and boundaries.  She notes no concerns for the interactions between the child and the paternal grandparents.  There is a difference between those observations and the observations she makes of the father.  Although she notes likewise positive exchanges between the child and the father, and no concerns for their interaction, one matter that she did observe is that despite the positive interaction between the father and the child, the child has been describing the father as a bad person.  The reasons for this are not yet apparent, that is it is not yet clear whether they are rooted in what the child has observed on the behaviour of the father in the past or because she has been otherwise involved in the proceedings by the mother. 

9. It may be inferred that relationship with the paternal grandparents has significant benefits for the child those benefits are limited under the current regime.  The paternal grandparents live approximately one hour from F Town and there is practically little option other than that they spend time in F Town with the child without the benefits of being involved at home and in daily life.  A third option was identified in exchanges during the proceedings and that is for the paternal grandparents to have the child for a weekend on which the father’s time falls.  They live half way between the father and the mother.  Under those circumstances the father’s time could still occur being carved out of such a weekend and either spent with the paternal grandparents as part of a greater family experience, or on his own with the child and potentially involving less transport for the child to spend time with him.  I note that the father’s time at present is each second weekend on a Saturday and a Sunday from 10am until 4pm. 

10. The competing factors identified in these proceedings relate primarily to the prevention of exposure to family violence which I am required to consider as one of the primary considerations in determining what would be in the child’s best interests.  I note that there are family violence issues between the father and the paternal grandparents and I note that the mother does not ultimately oppose the father and the paternal grandparents spending time together with the child, despite this being on the father’s completion of courses which have not been completed.  I am also to consider the benefits of relationship with the paternal grandparents as an additional consideration pursuant to s 60CC(3)(b) and (f).  They are people who were significantly involved in the child’s care when she was younger and when she was in the sole care of the father for an extended period of time.  Benefits may also be seen given the nature of the relationship that was observed by the family reporter. 

11. I am also to consider the practical problems that is a consideration pursuant to s 60CC(3)(e).  Those practical problems arise from the travel that is involved in spending time with the child and also on the particular limitations on the visits as they currently stand.  The mother raised the question of the capacity of the paternal grandparents to have overnight care of the child; I do not see this as a significant matter raised on the evidence and it was assessed by the family reporter as not being problematic. 

12. I should also consider the potential disruption to the child of frequent visits as a consideration pursuant to s 60CC(3)(m). 

13. The balance of the s 60CC factors do not have prominence in consideration at present as to what is in the child’s best interests. 

14. In my view the third option identified, that is, the grandparents having time with the child on one of the father’s weekends strikes the best balance in particular if it is set in a context which provides further safeguards for the child from family violence.  That particular safeguard is that such an arrangement would not involve a de facto extension of the father’s current time which was weighed in the balance in the previously contested interim proceedings in order to cater adequately for the family violence risk and providing for the father to have a relationship in the interim with the child.  The father has indicated that he does not oppose such an order even where such an order excludes him by injunction from spending time with the child, even though she is with his parents, where that time falls outside the current orders.  I would note that that lack of opposition is in the context of these being interim proceedings rather than final proceedings.  It has been explained to the father that breach of such an injunction carries with it the potential consequence of imprisonment for contempt of Court and may also have a significant impact on the final hearing of the matter. 

15. Such orders for the child to have some overnight time with her grandparents provide the child with the benefit of better time in the short-term with the paternal grandparents without unduly disrupting her weekends.  In fact it will leave open more weekends for the child to spend time with her mother without disruption.  It also provides potentially decreased travel for the child, potentially a better environment and options available for the time that she spends with her father, although her father is entitled to choose to go elsewhere with the child during the time that she is to spend with him and it provides for reasonable restrictions to reduce the risk of exposure to family violence although some risk still persists. 

16. The frequency sought by the paternal grandparents in their application was for a whole weekend each ten to eleven weeks, being a weekend which presumably could fall in addition to the time that the father already spends with the child.  It is appropriate given that I am not providing for an additional weekend to the father’s time and given the limitations on the time in that the time spent with the grandparents will have a period of time carved out for the father to provide for a frequency that is higher than that sought by the paternal grandparents.   The frequency of the time that the child will spend with them will be on the fourth of each of the father’s weekends which gives it a frequency of one in eight weeks.  It is also appropriate that such a weekend should more closely mimic the current time without an immediate jump to two overnights in a row.  That is, the orders will provide for a pick up on a Saturday morning to allow the child to reach the paternal grandparent’s home for the commencement of the father’s time and provide for a return to F Town on the Sunday afternoon to allow the father’s time to be completed and uninterrupted and then time for the child to be transported from the paternal grandparents back to F Town.  That will mean that the paternal grandparents will be able to collect her at 8:30am on a Saturday morning and return her at 5:30pm on a Sunday. 

17. Other orders were sought, firstly as to parental responsibility.  I do not propose to deal with that further at this point.  The determination of the question of parental responsibility will be reliant upon determining the matters raised by each of the parties in respect of mental health and family violence.  It is premature in this context to vary the arrangements for parental responsibility, it is appropriate at this stage that both parents be involved in the long-term decision making pending a resolution of the contentious family violence matters. 

18. The mother proposed a number of orders for telephone time, both for herself and the child when not in her care and for the paternal grandparents and for the father, and orders will be made largely in accordance with those that she has proposed.

19. The mother also proposed restraints; firstly as to the consumption of alcohol.  That matter is sufficiently dealt with by the general law and in this case does not require reinforcement by injunction. 

20. The mother sought orders for restraints in respect of the consumption of drugs and although illicit drugs are dealt with under the general law, given the issues in this case such a restraint is called for.   The mother also sought a restraint in relation to the discussion of proceedings and a restraint from each of the parties from saying bad things about each other in the child’s presence.  Those orders are appropriate and will be made.

21. I note before pronouncing the orders that it is imperative that the child experiences the time with the paternal grandparents as a time in a safe place and that she is not subjected to conflicts and argument during that time. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 13 March 2018.

Associate: 

Date:  13 March 2018