Department of Family and Community Services and Sanchez & Ors

[2013] FamCA 1006

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & SANCHEZ AND ORS [2013] FamCA 1006

FAMILY LAW – PARENTING – Whether child should spend time with the father – Whether supervision is required – Where the father has child  related convictions – Whether child should spend time with his step-brother – Where the Department alleges the child is spending time with his step-brother – Where evidence of the Department is unsworn

APPLICANT: Department Of Family And Community Services

RESPONDENT FATHER: Mr Sanchez

RESPONDENT MOTHER Ms Monte

RESPONDENT GRANDPARENTS: Mr A and Ms B Sanchez

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: WOC 937 of 2011

DATE DELIVERED: 2 December 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 2 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Neville

SOLICITOR FOR THE APPLICANT: DOCS

SOLICITOR FOR THE RESPONDENT: Johnson Horsley Lawyers

THE RESPONDENT PATERNAL GRANDPARENTS In person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Maguire & Mcinerney

Orders

IT IS ORDERED

1. That the child C born … 2007 spend time with the mother Ms Monte, from 5 pm Friday until 5 pm Sunday each alternate weekend.

2. That the child spend time with the father Mr Sanchez, each alternate Saturday and Sunday (those not being the weekends when he is with his mother) between 10 am and 4.30 pm provided that such time is supervised by either the paternal grandfather Mr A Sanchez or the paternal grandmother Ms B Sanchez.

3. That pursuant to Sections 65DA(2) and 62B 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 those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 937 of 2011

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And

Mr Sanchez

Respondent

And

Ms Monte

Respondent

And

Mr A And Ms B Sanchez

Respondents

REASONS FOR JUDGMENT

1. Before the Court is an application by the Department of Family and Community Services (“the Department”) relating to the parenting of a child, C Sanchez who was born on 24 June 2007. On 2 May 2013 Foster J, as he then was, sitting in the Federal Circuit Court, made orders that provided for the Minister for the Department, to have parental responsibility for C, and C was placed in the care of his paternal grandparents, Mr A Sanchez and Ms B Sanchez.

2. The orders which were made by Foster J provided for C to spend time with his mother, Ms Monte, from 5.00 p.m. on Friday until 5.00 p.m. on Sunday for three out of every four weekends, subject to a restriction on C’s being brought into contact with his half-brother E. 

3. After the orders were made on 2 May 2013, the Department was alerted to the fact that the father was a person who had been convicted of a sexual offence in relation to teenage girls, and the Department required the father to vacate the home he had previously shared with his parents and C. 

4. Since that time there has been no arrangement for C to spend time with his father, and the father seeks an order that he spend time with C, supervised, each alternate weekend. 

5. The application of the Department is in relation to the restriction on C being brought into contact with his half-brother E. The Department relies on an affidavit by Mr D, an officer of the Department, sworn on 30 October 2013 which states the following at paragraph 7:

   On 1 October 2013 I received a letter from [Ms F Sanchez] in relation to a conversation she had with [C] on 25 September 2013. C referred to his brother [E] when holding a toy and told [Ms Sanchez] that he had seen [E] “not so long ago”. [C] also referred to how [E] had done a “bad thing” but said that he could not tell her what bad thing he did.

6. A copy of the letter from Ms F Sanchez is annexed to the affidavit of Mr G. That letter, however, is not signed. 

7. The Department further relies upon the statements of Mr G at paragraph 8 of his affidavit to the following effect:

   On 2 October 2013 [Ms H], intensive family-based service manager case worker attended a planned home visit with C and his paternal grandparents, [Mr A and Ms B Sanchez]. During the visit [C] and [Ms H] spoke about soccer and how when [C] visits the mother he plays with her. When [Ms H] inquired if only he and the mother played soccer, [C] said, “No, [E] too.”

8. Ms H then asked C whether E is at the mother’s all the time C visits with the mother, and C said “Sometimes.”  A copy of Ms H’s records of that interview is annexed to Mr G’s affidavit. 

9. The mother denies that C has been brought into contact with E. The mother has sworn an affidavit on 21 November 2013 and her denials are on oath. Similarly E’s father, Mr I, denies that E has been in contact with C and further says that there has been no contact between E and the mother since early 2013. 

10. The evidence which is relied upon by the Department is uncertain and open to interpretation as to the times to which the child was referring. The evidence relied upon by the Department is not sworn but is a hearsay document. In those circumstances, I prefer to accept the sworn evidence of the mother and E’s father and I do not consider that the case of the Department has been made out. 

11. The next issue before the Court is the issue of the time which C should spend with his father. The mother opposes the child spending any time with the father. 

12. The Family Report, which has been prepared by Dr Hollingsworth, suggests that it would be in C’s best interests to spend time with his father. Both the Independent Children’s Lawyer and the Department accept that it is appropriate for C to spend time with his father provided that the time is properly supervised. 

13. Before me today both of the paternal grandparents have given oral evidence about their willingness to supervise the time that the father spends with C and their understanding of the responsibilities of supervision.

14. I accept that they are appropriate persons to supervise the time which C will spend with his father. Accordingly, it will be necessary to reduce the amount of time that C spends with his mother to allow for C to spend time with his father, and the time with the mother will be reduced to each alternate weekend, but will remain in accordance with the times set by Foster J in May of 2013. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 December 2013.

Associate:

Date:  2 December 2013