FERREIRO & ZANGARI
[2018] FCCA 3214
•4 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FERREIRO & ZANGARI | [2018] FCCA 3214 |
| Catchwords: FAMILY LAW – Interim parenting – relocation – mother unilaterally relocated with children from Sydney to Town A – practicality of mother and children moving back to Sydney – orders for children to return to Sydney. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60B, 60CC, 61DA, 65DAA, 61C |
| Cases cited: Goode & Goode (2007) 36 Fam LR 422 |
| Applicant: | MR FERREIRO |
| Respondent: | MS ZANGARI |
| File Number: | PAC 2379 of 2018 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 16 October 2018 |
| Date of Last Submission: | 16 October 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 4 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Greenaway |
| Solicitors for the Applicant: | John Spence & Associates |
| Appearing for the Respondent: | Ms Colquhoun |
| Solicitors for the Respondent: | Legal Aid New South Wales |
| Appearing for the Independent Children's Lawyer: | Ms Abercrombie |
| Solicitors for the Independent Children's Lawyer: | Lamrocks Solicitors |
PENDING FURTHER ORDERS
The mother shall within 42 days of the making of these Orders cause the return of the children [X] born 2011 and [Y] born 2012 to the Sydney Metropolitan area.
Following compliance by the mother with the above order, the mother is restrained from changing the place of residence of the children to any place outside a 15 kilometre radius of the suburb of Suburb K.
For the purpose of facilitating the mother’s return to the Sydney Metropolitan area with the children, the father shall pay a rental bond and $200 per week towards rental payments to the mother.
The children shall spend time with the father as follows:
(a)From 3pm to 6pm on 25 December 2018;
(b)Pending the children’s return to the Sydney Metropolitan Area, in accordance with orders made on 6 June 2018;
(c)Upon the children’s return to the Sydney Metropolitan Area:
(i)For a period of 6 weeks, each week from 10am to 5pm on Saturday, with such time to occur in the presence of a third party nominated by the father;
(ii)For a further period of 4 weeks, each week from 10am to 5pm on Saturday; and
(iii)Thereafter, each alternate weekend from 10am to 5pm on Saturday and from 10am to 5pm on Sunday.
The parents are to do all acts and sign all documents necessary to cause the children to be re-enrolled in School 1 Primary School, Suburb K, New South Wales upon their return to the Sydney Metropolitan area.
The father is to pay all school fees for the children upon their re-enrolment at School 1 Primary School, Suburb K together with the costs of their school uniforms.
Pursuant to section 68B of the Family Law Act1975, the father is restrained by injunction from smoking marijuana for at least 24 hours prior to the children coming into his care and for the duration of the time that the children are in his care.
Within seven (7) days, the father shall attend to provide a sample for forensic testing with respect to the presence of cannaboids, opiates, amphetamines, methamphetamines and benzoids and such sample shall be provided and testing shall occur in accordance with the appropriate Australian standard for supervised chain of custody testing and upon provision of a testing report arising from same, the father shall cause and ensure that report to be provided to the Independent Children’s Lawyer and to the other party.
In the event that the testing report discloses a reportable quantity of any of the above substances, the father shall then continue to attend and provide a sample and cause such sample to be tested in accordance with the above order no less than each seven (7) days and until such time as a report is provided which discloses no reportable quantity of any of the tested substances.
In the event any test is positive as above, the father shall then forthwith contact such service local to them as the Independent Children’s Lawyer may nominate for the purpose of enrolling in a course or program designed to assist them in addressing their drug use and becoming and remaining drug free.
List the matter for directions at 9.30am on 12 April 2019.
IT IS NOTED that publication of this judgment under the pseudonym Ferreiro & Zangari is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2379 of 2018
| MR FERREIRO |
Applicant
And
| MS ZANGARI |
Respondent
REASONS FOR JUDGMENT
Introduction
These are interim parenting proceedings in relation to two children, [X] born 2011 and [Y] born 2012.
The parties to the proceedings are the Applicant father, Mr Ferreiro and the Respondent mother, Ms Zangari.
The father commenced proceedings with the filing of an Initiating Application on 29 May 2018.
The matter has been listed for an interim hearing quite urgently due to the mother’s unilateral relocation with the children from Sydney to Town A, New South Wales, some 500 kilometres in distance.
Documents relied on at Interim Hearing
The father relied on the following documents at the interim hearing:
a)Amended Initiating Application filed 12 October 2018;
b)Affidavit of Mr Ferreiro affirmed 28 May 2018 and filed 29 May 2018;
c)Affidavit of Mr Ferreiro affirmed 28 September 2018 and filed 3 October 2018; and
d)Affidavit of Ms A affirmed 28 September 2018 and filed 3 October 2018.
The mother relied on the following documents at the interim hearing:
a)Response filed 27 July 2018;
b)Affidavit of Ms Zangari affirmed 24 July 2018 and filed 27 July 2018;
c)Affidavit of Ms Zangari affirmed and filed 10 October 2018.
The following documents became Exhibits in the proceedings:
a)Exhibit 1 – Material produced under subpoena from Ms J – Sleeve 8 – as tabbed;
b)Exhibit 2 – material produced under subpoena from [Local Court] – Sleeve 10 – as tabbed;
c)Exhibit 3 – material produced under subpoena from New South Wales Police – Sleeve 2 – as tabbed;
d)Exhibit 4 – Drugs of Abuse testing request form of Mr Ferreiro dated 15 October 2018; and
e)Exhibit 5 – Letter dated 21 August 2018 from John Spence & Associates to Legal Aid.
Orders Sought
The father seeks orders, inter alia, that he spend time with the children each alternate weekend from after school on Friday until before school on Monday and each Wednesday from after school until before school on Thursday in the intervening weeks, such time to occur in the Sydney metropolitan area.
The father asks the Court to also make additional orders, pending further order, that for the purpose of facilitating the mother’s return to the Sydney metropolitan area with the children that he pay a rental bond and $200 each week towards rental payments. Further, that the father pay the entirety of the children’s school fees and the costs of their school uniforms upon their re-enrolment at School 1 Primary School, Suburb K, New South Wales.
The mother seeks orders, inter alia, that the children remain living with her and spend supervised time with the father for two hours once per month at Marymead Contact Centre.
Issues for Determination
The issues the Court is asked to determine are:
a)Whether the children should return to live in the Sydney metropolitan area or remain living with the mother in Town A, New South Wales;
b)What time the father should spend with the children whether they are to return to Sydney or remain living in Town A, New South Wales; and
c)Whether the father’s time with the children ought to be supervised, and if so by whom.
Agreed Facts
The father was born on [date] 1980.
The mother was born on [date] 1983.
The father began smoking marijuana in 1994 and continued to smoke marijuana until May 2018.
The parties commenced a relationship in [date] 2009 and commenced cohabitation in 2009 also.
The parties’ first child [X] was born on [date] 2011.
The parties’ second child [Y] was born on [date] 2012.
On 10 October 2015 a provisional Apprehended Domestic Violence Order was made for the protection of the mother.
[X] commenced school at School 2 Primary School, Suburb L in 2016.
Both children commenced attending School 1 Primary School in Suburb K in 2017.
The parties are in agreeance that the relationship was often marred with arguments and yelling.
The mother left the former matrimonial home with the children on 4 May 2018. On that day she removed the children from their school without the knowledge of the father and unilaterally changed their residence and school.
The father filed his Initiating Application seeking orders to spend time with the children on 29 May 2018.
On 6 June 2018 the Court made orders by consent for the father to spend time with the children in Canberra for four hours each alternate Saturday supervised by the paternal great grandmother and the paternal aunt. The effect of these orders is that the children have been living in Town A, New South Wales for five months.
Contested Evidence
The mother’s evidence is that the father was regularly verbally abusive towards her and would often make her feel inferior. She alleges that he was emotionally, and sometimes physically, abusive towards her during their relationship.
The father’s evidence is that the parties would often argue and that he would leave the house during the arguments to avoid arguing in front of the children. The father says that the parties had many separations during their relationship which would range from a day to a few months at a time. During these separations the mother would leave the family home with the children and stay with the paternal grandparents or with her brother.
The mother’s evidence is that the father would smoke marijuana on a daily basis which is conceded by the father. The mother says that the father would demand that the mother prepare him food at various hours throughout the day and night and that he would often call her derogatory names such as “stupid bitch, dumb fucking idiot, useless gold digger, slut, cheater and fucking smart arse”.
The mother’s evidence is that the father isolated her from family and friends and that following an argument one evening, the mother reconnected with an old friend which upon the father realising enraged the father. He took a knife and stabbed the mother’s phone saying words to the effect “I will hurt you. I will kill you for doing this to me”, “Get out or I am going to kill you”. The mother proceeded to leave the home and walked bare foot to the police station where the police made an Apprehended Domestic Violence Order for the protection of the mother from the father.
Further, the mother describes how the father would taunt her about being sexually assaulted as a child and would say things to her such as “do you like to suck old man’s dicks” and would thrust his pelvis towards the mother and tell her to “suck my dick”.
The mother’s evidence describes numerous occasions where the father threw her clothes and belongings on the ground outside of the family home and on one occasion where the father had taken her clothes with him in his [work vehicle] and threw them out the window onto the road. The mother also describes how the father would break her possessions such as family photos and heirlooms as well as breaking the mother’s phone and key cards to prevent her from communicating and obtaining money.
The mother’s evidence is that on many occasions when the father would become enraged he would do so in the presence of the children which has caused the children to be fearful of him. On one occasion the father yelled at [X] that “your mother is a slut” and has called [Y] names such as “fucking idiot” and “fucking whinger”.
The father’s evidence is that the mother would push the father, grab his shirt and throw food, drinks and crockery at him during arguments. The father says this would occur in the presence of the children.
In 2016 the mother was charged by police for throwing a cup at the father.
On 2 May 2018 the mother alleges, father became enraged once again and began smashing items in the parties’ bedroom. The mother says she then put the children to bed. Afterwards, the father is said to have entered the children’s bedroom and told them “goodbye kids, you won’t see your dad anymore. Your dad is going to die today”.
On the morning of 4 May 2018 the mother alleges, the father yelled at the mother “you had better get the kids out of the house because tonight I’m going to smash the place and someone is going to die”. That afternoon the mother left the former matrimonial home with the children and unilaterally removed them from their school and relocated with them to Town A, New South Wales where she currently resides.
The father’s evidence is that he had left the family home for work in the morning and found an internet search for a Women’s Legal Service on the mother’s mobile telephone. He says he called the mother and asked her if she was planning on running away with the children as she had previously done and that the mother had hung up the phone, switched it off and was uncontactable.
The Law
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in the children’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children.
The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.
It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in
[3] Ibid at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]
[6] s61DA(3)
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]
[7] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.
[8] (2007) 36 Fam LR 422, (2006) FLC 93-286
As stated by the Full Court in Keats & Keats, in respect of the conduct of interim proceedings:[9]
…the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.
[9] [2016] FamCAFC 156 at [9]
Relevant Considerations and Analysis
The protection of the children from harm is an important matter for the Court’s consideration when weighing up the primary considerations. Indeed, the Court must prioritise the need to protect the children from harm as against the benefit of the children having a meaningful relationship with the parents.
Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the children, all the while considering what might be in the children’s best interest. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of what time, if any, the children is to spend with the father.[10]
[10] M & M (1988) 166 CLR 69 at 77
The mother submits that the father’s time with the children ought to be limited and supervised due to the father’s drug use and frequent temper outbursts which have caused the children to be fearful of him.
No plausible explanation[11] was offered in the mother’s case as to why such supervised time could not occur in the Sydney metropolitan area. If the concern was the protection of children from harm, an order for supervised time in the Sydney metropolitan area would see the children similarly protected as by an order for supervised time in Canberra.
[11] Except for the tyranny of distance if the children remained in Town A and the father in Sydney
Against an order for the return of the children it was submitted:
a)That the mother has support in Town A, both financial and emotional, through her father;
b)That the mother has commenced employment in the Town A area; and
c)That the children are now established in their new schools and new community.
The father proposes for the mother to return with the children to the Sydney metropolitan area. It was explained by the father’s Counsel that the reason why it is not feasible for the mother and the children to reside in the former matrimonial home is because the father, being a [occupation omitted], would not have anywhere to park his [occupation vehicle] if he was to live somewhere else.
Instead, the father proposes to pay $200 per week towards rental accommodation for the mother and the children. The father annexes to his Affidavit various internet searches which are supportive of the submission that such financial assistance would see the children and the mother appropriately housed.
Whilst the mother is currently in employment in the Town A area, there is no evidence before the Court that she has applied and been unsuccessful for similar positions in the Sydney metropolitan area, or that roles such as the one she currently occupies are not readily available in Sydney.
Whilst the mother is currently receiving financial assistance from her father, there was no evidence that such financial assistance would not continue if the mother lived in Sydney. Indeed, there was no suggestion that it was not feasible for the paternal grandfather to continue supporting the mother in the same manner he has been supporting her since she left the former matrimonial home.
A return of the children to the Sydney metropolitan area would see them returned to their former school. It is the father’s proposal that they attend the school they were enrolled in earlier this year before the mother unilaterally relocated with them. The father proposes to pay for the children’s school fees. The mother does not place before the Court any objective evidence that an enrolment of the children in their former school is against their best interests.
The time between the children and the father has been supervised by the paternal family since the most recent interim orders. The mother submits that such supervision is not adequate and that it places the children at an unacceptable risk of harm.
The Court is not satisfied that unsupervised time between the children and the father would see them placed at an unacceptable risk of harm. Even taking a cautious approach in light of the very serious allegations of family violence the mother makes, the evidence suggests that the children would benefit from a relationship with their father and that such a relationship is at least in the interim, safe for them.
The Court is quite concerned about the mother’s capacity to parent and cope if the children are to spend overnight time with the father in circumstances where an order is to be made for the children to live in the Sydney metropolitan area with the mother. Whilst there is no expert evidence which would suggest that her capacity is going to be so severely affected that she will not be able to parent the children in a meaningful way, the Court understands that the orders which are hereby made are going to have a significant impact on the mother.
An order for the children to spend limited and day time only with the father, until further order and/or until the evidence is tested, will see the children having the benefit of a meaningful relationship with the father while also ensuring their safety. Such an order puts in place appropriate safeguards for the children and the mother. While the Court is not satisfied that supervision of the children’s time with the father is warranted on the evidence for reasons explained earlier, an order for a third party to be present during an initial period of time will nonetheless be made. The reason for this is that the Court is concerned about the effect on the mother and her capacity to cope, if unsupervised time is to commence straight away.
A further safeguard for the children will be an order restraining the father from smoking marijuana for at least 24 hours before the children come into his care and for the duration of the period the children are in his care. The father will also be required to undergo random drug urinalysis and enrol in an appropriate course of drug rehabilitation and/or counselling.
If the children remain in Town A with the mother and only see their father in a supervised setting, it is highly likely that their attachment to him and their relationship with him will suffer.
Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[12] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order.
[12] See note 1 s61C
As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[13] The presumption is also rebutted where there are reasonable grounds to believe that a parent has engaged in family violence.
[13] s61DA(3)
It is noted for the benefit of the parties that in making a final parenting order in relation to children, the Court must disregard the allocation of parental responsibility made in the interim order.[14]
[14] s61DB
The father asks the Court to make an order for equal shared parental responsibility. The mother asks the Court to make an order for sole parental responsibility for the children.
Given the statutory position and that orders for the children to live with mother in the Sydney metropolitan area will be made, it is not appropriate in the circumstances to make any orders for parental responsibility. The evidence is yet to be tested, and there is no evidence that the parents have to date not been able to make joint decisions with respect to long term issues for the children. It may well be that such a conclusion is reached by the Court ultimately, but for present purposes, it is not an order which is necessary.
In all of the circumstances and for all of the reasons set out above, it is in the children’s best interests for orders to be made as set out at the forefront of these Reasons.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 4 December 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Remedies
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Procedural Fairness
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