Falcone and Falcone
[2014] FCCA 2315
•19 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FALCONE & FALCONE | [2014] FCCA 2315 |
| Catchwords: FAMILY LAW – Parenting – where parties recently separated – where serious allegations made by each party as to ability to care for 15 month old child – where domestic violence proceedings pending – where mother not seen the child since separation – where child living with father and paternal grandparents in former family home – where mother living in a refuge – where no evidence before Court as to suitability of refuge or where mother will live if refuge accommodation no longer available – Held that pending a family report child remain living with father and spend three day time periods with mother each week. |
| Legislation: Family Law Act 1975, Pt.VII, ss.60B, 60CC |
| Cases cited: Goode & Goode (2006) FamCA 1346 |
| Applicant: | MR FALCONE |
| Respondent: | MS FALCONE |
| File Number: | BRC 7776 of 2014 |
| Judgment of: | Judge L. Turner |
| Hearing date: | 16 September 2014 |
| Date of Last Submission: | 16 September 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 19 September 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Galloway |
| Solicitors for the Applicant: | Fraser Coast Lawyers |
| Solicitors for the Respondent: | Carswell & Company |
ORDERS
THE COURT ORDERS UNTIL FURTHER ORDER:
That the Mother file and serve a Form 4 Notice of Child Abuse, Family Violence, or Risk of Family Violence within 14 days from the date hereof.
That the child, X born (omitted) 2013, live with the Father.
That from the date hereof the Mother spend time with the child as follows:
(a)Each Monday from 9.00am to 5.00pm.
(b)Each Thursday from 9.00am to 5.00pm.
(c)Each Saturday from 9.00am to 5.00pm.
(d)At all other times as may be agreed upon between parties.
THE COURT ORDERS:
Family Report
That a Family Consultant be appointed by the Senior Family Consultant of the Federal Circuit Court of Australia Brisbane Registry in this matter to prepare a report pursuant to s.62G of the Family Law Act 1975 (as amended)(“the Act”).
That in addition to reporting any matters that the Family Consultant considers important to the welfare of the child and the factors contained in s.60CC of the Act the following opinions should be included:
(a)what, if any, interventions might assist the parties to achieve a cooperative parenting outcome;
(b)what, if any, interventions would assist the parties to resolve potential disputes about the parenting orders or the changing needs of the child/children in the future.
That it should be noted a child should not be required to express his or her views in relation to any matter but in the event that a child does express views, the Family Consultant should also canvass and report the views and likely consequences of and for the child/children if the Court did not reach a conclusion which accorded with the child/children’s views.
That if either party requires the Family Consultant for cross-examination at the final hearing, they should notify the Family Consultant in writing no later than 14 days prior to the hearing in the matter.
That the parties shall attend appointments with the Family Consultant on a date and time to be advised by the Family Consultant and they shall facilitate the attendance of the child/children for those appointments (unless otherwise advised).
That the Federal Circuit Court of Australia be responsible for payment of the cost of preparation of the Family Report.
That the Family Consultant shall have leave to inspect subpoenaed documents produced to the Court.
That the Family Consultant has liberty to list the matter for further directions and for the purpose of that mention, the Family Consultant and the parties have leave to appear on the telephone. For the purpose of listing the matter the Family Consultant has leave to contact the Associate to the presiding Judge.
That this matter be adjourned for mention to 5 February 2015 at 9.30am in the Federal Circuit Court of Australia at Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Falcone & Falcone is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT BRISBANE |
BRC 7776 of 2014
| MR FALCONE |
Applicant
And
| MS FALCONE |
Respondent
REASONS FOR JUDGMENT
Ex Tempore
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Introduction
After only a few weeks of separation the parties are in dispute as to the future parenting of their young boy, X, aged 15 months.
Issues
The issue requiring determination is where the child is to live and what time the child is to spend with the other parent pending the preparation of a family report.
Evidence
In considering this issue regard has been had to:-
a)the material as marked on the Court file;
b)the exhibits;
c)the oral and written submissions;
d)Part VII Family Law Act 1975 and in particular, section 60B and the factors in section 60CC;
e)Full Court decision of Goode & Goode (2006) FamCA 1346 which sets out the pathway to follow in interim hearings and cautions about making findings on disputed facts; and
f)the relevant authorities.
Both parties are legally represented.
The interim matter proceeded on the material filed and the submissions.
Cross-examination did not occur.
Findings of fact are made on the balance of probabilities, having regard to the evidence and in what follows statement of fact constitute findings of fact.
Relevant Facts
Before considering the issue it is necessary to capture the agreed and disputed facts.
Agreed facts
The agreed facts are few and far between.
The father is aged 37 and was born in Australia.
The mother is aged 35 and was born in (country omitted).
In or around 2010 the parties met via the internet at which time the father was living in Darwin with his parents and the mother was living in (country omitted).
In April 2013 after several visits to each other’s respective residences the parties married.
Shortly after marriage the parties lived with the paternal grandparents.
In (omitted) 2013 X was born.
In September 2013 the parties, X and the paternal grandparents moved to (omitted) where they all continued to reside together at a home acquired by the paternal grandparents.
During the relationship the father stayed at home with the child, whilst the mother worked as a (occupation omitted).
In August 2014 the parties separated after several days of altercations involving the police.
Separation ultimately occurred when the mother was required to leave the home without X.
Since separation the mother has not worked and attempts to spend time with X, even through a contact centre, have been unsuccessful.
In September 2014 the mother applied for a domestic violence order against the father and the father cross applied for a domestic violence order against the mother.
On 16 September 2014 the matter proceeded to an interim hearing.
As at the date of the interim hearing:-
a)The child lives with the father and the paternal grandparents at (omitted).
b)The mother lives at a women’s refuge at (omitted), the whereabouts of which is known to the father.
c)The mother is taking steps to obtain a Centrelink payment.
d)The domestic violence applications are proceeding through the Local Courts.
e)The father is not in employment.
f)The mother is not in employment.
g)The mother has difficulty reading, understanding and speaking English.
h)The father has filed a Notice of Child Abuse.
i)The mother does not have a licence or drive a car.
Disputed facts
The disputed facts are numerous and on their face are questionable from both sides.
Nonetheless, it is outside my ability to make any findings of disputed facts on an interim basis where there’s a glaring lack of independent evidence and where the limited evidence before the court has not been tested.
The facts raised by the father which are disputed by the mother are:-
a)Whether the father was the primary carer of the child.
b)Whether the mother was negligent or abusive towards the child.
c)Whether the child is at risk in the care of the mother.
d)Whether the mother is a flight risk with the child.
e)Whether the mother is in another relationship.
f)Whether the mother would facilitate a relationship between the father and the child if the child was living with the mother.
g)Whether there has been family violence perpetrated by the mother against the father and the paternal grandparents.
The facts raised by the mother which are disputed by the father are:-
a)The extent of the mother’s involvement with the day-to-day care of the child.
b)Whether there has been family violence perpetrated by the father against the mother and/or the child.
c)Whether the father has threatened to kill the mother and/or the child.
d)Whether there has been family violence perpetrated by the paternal grandparents.
e)Whether X is at risk in the care of the father.
f)Whether X is at risk in the care of the paternal grandparents.
g)Whether the father has a problem with alcohol.
h)Whether the father has a problem with managing his anger.
i)Whether the father has a gambling problem.
j)Whether the father has a sex addiction.
k)Whether the father has sexually assaulted the mother.
l)Whether the mother was still breastfeeding the child at the time of separation.
Interim parenting arrangements for X
Taking into account the agreed and disputed facts, consideration will now be given to the issue.
It is the father’s proposal that on an interim basis:-
a)X live with the father;
b)Spend 9 am to 5 pm each Monday and Thursday with the mother;
c)The father to attend to all the travelling; and
d)For changeover to occur at (omitted).
The father bases his proposal on the following:-
a)This will enable X to remain with the father and the paternal grandparents in the home which the child has known since a very young age.
b)This will enable X to spend significant daytime periods with the mother two days a week so that their relationship can be maintained.
c)The arrangements will minimise any potential risk the child might be exposed to in the mother’s household.
It is the mother’s proposal for week-about for X with each of the parents.
The mother bases her proposal on the following:-
a)This arrangement will enable the child to spend time with both parties and the paternal grandparents so that those relationships can be maintained.
b)The mother is able to have X stay with her at the refuge.
c)The arrangement will minimise any potential risk the child might be exposed to in the father’s household.
Conclusion as to parenting arrangements for X
I find, pending preparation of a family report, that it is in X’s best interests to live with the father and spend three days a week with the mother.
I base my findings on the following:-
a)There is no evidence before the Court as to the suitability of the refuge for such a young child, how long the mother is able to stay at the refuge and where the mother is able to live in the event that the refuge is no longer available to the mother.
b)This mother’s living situation contrasts sharply with the child’s current living arrangements, where X can remain in a home that he has grown up in surrounded by familiarity.
c)For such a young child there needs to be time with each parent on a regular basis. I find that three days a week from 9 am to 5 pm will provide X with an opportunity to spend good quality time with the mother as well as the mother being able to be involved in the child’s day-to-day activities.
d)As the mother has no transport and the father is not working, then the father can facilitate this time by attending changeovers at (omitted), which is a short distance from the refuge where the mother is staying.
The equal proposed time of week-about as put forward by the mother is not able to be considered for the purposes of an interim hearing because the mother’s residence is unknown.
Further there is no independent evidence before the Court as to the impact of an equal shared care arrangement on such a young child.
Future direction
As to the future direction, it is evident that this matter would benefit from the preparation of a family report.
If the paternal grandparents can fund their own report, then the order for the Court ordered report is to be vacated.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 17 October 2014
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Jurisdiction
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Procedural Fairness
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Remedies
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