Gaddi & Levett
[2023] FedCFamC1F 230
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gaddi & Levett [2023] FedCFamC1F 230
File number(s): BRC 8895 of 2022 Judgment of: BAUMANN J Date of judgment: 18 January 2023 Catchwords: FAMILY LAW – PARENTING – INTERIM – Where there has been no time between the child and the father for approximately eight months – Order made for time to recommence – Child to attend a particular school Legislation: Family Law Act 1975 (Cth) Cases cited: Banks & Banks (2015) FLC 93-637 Division: Division 1 First Instance Number of paragraphs: 27 Date of last submission/s: 18 January 2023 Date of hearing: 18 January 2023 Place: Brisbane Solicitor for the Applicant: Hall & Co Solicitors Counsel for the Respondent: Ms R Lyons Solicitor for the Respondent: Ready Hocking Law Independent Children’s Lawyer: Ms V Khushal, Bridges Family Law Specialists ORDERS
BRC 8895 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GADDI
Applicant
AND: MS LEVETT
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
18 JANUARY 2023
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That Order 2 of the Orders dated 24 November 2022 be discharged.
2.That the parents have equal shared parental responsibility for the major long term issues of the child, X born 2012 (“the child”), including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
3.That the child spend time with the father in the presence of the paternal grandmother, Ms Stone, as may be agreed between the parents, but failing agreement as follows:
(a)From 10.00am to 7.00pm on Sunday, 22 January, 29 January, 5 February, 12 February, 19 February and 26 February 2023; and
(b)each alternate weekend commencing Saturday, 11 March 2023 as follows:
(i)On the Saturday from 10.00am to 7.00pm; and
(ii)On the Sunday from 9.00am to 6.00pm.
4.That changeover occur between the paternal grandmother and the mother at KFC Suburb B, with no other party to attend or be present in the vehicles.
5.That the child communicate with the father each Wednesday between 5.00pm and 5.30pm, with the father to initiate the call to the mother’s mobile phone.
6.That the child attend C School.
7.That this Order is authority for both parents, at their own cost, to obtain any information from the child’s school as to the child’s education development.
Family report
8.That Orders 18 and 19 of the Orders dated 24 November 2022 be discharged.
9.That pursuant to r 7.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Ms D be appointed a single expert to prepare a family report in these proceedings.
10.That the parents and the child attend upon Ms D on 6 March 2023 for the purposes of the preparation of the family report.
11.That the parents shall share equally the costs of the preparation of the family report.
12.That pursuant to s 121 of the Family Law Act 1975 (Cth) (“the Act”), the Independent Children’s Lawyer have leave and shall provide to the child’s treating therapist, The Psych Professionals a copy of the:
(a)child impact report prepared by Ms E dated 27 October 2022; and
(b)the family report to be prepared by Ms D.
13.That pursuant to s 121 of the Act, leave be granted for the family report writer, Ms D to be provided with a copy of:
(a)the Reasons for Judgment delivered 19 January 2023;
(b)all relevant material filed in these proceedings;
(c)all relevant Court Orders; and
(d)all relevant subpoena material.
14.That by no later than 20 April 2023, each party file and serve a precise minute of final orders sought.
15.That by no later than 4.00pm on 26 April 2023, each party file and serve a costs notice in accordance with r 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
16.That these proceedings be adjourned for Case Management Hearing at 9.30am on 27 April 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
17.That the Independent Children’s Lawyer be at liberty to apply.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gaddi & Levett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
When the mother and father of X separated in May 2017, X was six years of age. Shortly after separation, the parties were able to enter into sensible final orders made by consent which provided for X to live with the mother and spend substantial and significant time with the father. The evidence before the Court now suggests that these two educated, competent and capable parents managed the care arrangements for X without the need to involve the Court, either through contravention or enforcement or variation, until events in mid-2022.
There was much evidence that has been offered by both the mother and the father to date since the father commenced his Application, effectively, when time ceased on 22 July 2022, that, if believed and I find to be true, can be the subject of great criticisms of both parents. The Court is not, on an interim basis, able to determine the truth of many of these allegations. Clearly however, the context for some of those allegations appears to be the effect the mother’s decision to commence and maintain a relationship with Mr F, who, at some level in some way, was a friend of the parties before they commenced their relationship, and, at the time, the apparent decision of the father to either support or at least be in some form of relationship with Mr F’s former wife, that relationship now ceasing.
Mr F and his former wife have their own family law proceedings in this jurisdiction, but not before me, and they have a number of children, but a significant issue in relation to their matter is that it seems the mother of those children, J, K, L and M, is currently the subject of serious criminal charges in relation to her conduct. That is a matter which I do not need to make findings on as the father agrees that X should have no time or come into contact with that lady.
It seems, at least on the evidence, particularly Exhibit 1, that one of the contributors to the difficulties that were raised mid last year was the father’s then relationship with a lady described as “Ms G”. It is not unusual, of course, for a child, particularly an only child as X is in the father’s household, to express some discomfort when the father enters a new personal relationship. I do not need today to explore the concerns the child had expressed, particularly to people like Dr H, as reflected in the report of 18 November 2022, about Ms G, because the father says and I accept that he is no longer in a relationship with that lady.
Sadly, even though there seems to have been some stability in the relationship between the mother and Mr F, the same could not be said about the father’s previous relations, but he is aware of that, and no doubt, is conscious of the effect on X of selecting new partners.
There are two aspects, however, of this matter which are a further concern and which may be coincidental or maybe not. During the course of the period when X was not spending time with the father, L, who is now 12 years of age but will be 13 in 2023, is alleged to have made serious allegations against the father in this case and her mother. At its highest, apparently, is an allegation that in late 2021 the father engaged in a sexual assault of the child at a shopping centre at Suburb B. Why this child did not apparently report this incident for 12 months is uncertain. The matter appears to be under active consideration by police, but no report in respect of that issue has been prepared.
I say coincidentally because the father says such allegations are slanderous, untrue and are motivated by a desire of the mother, and, in particular, Mr F in influencing and/or, I suspect, coaching L to make such allegations. The allegations further extended to allege hearing of conversations between Mr Gaddi and the biological mother of L. With the passage of time, if there is anything in those allegations that should be before this Court urgently, no doubt the Independent Children’s Lawyer, who will have liberty to apply, can bring them to the attention of the Court.
However, the circumstances of those allegations, the vagueness of them and the way in which they have risen, do not, in my view, reach the level where, at this stage on the evidence, I am prepared to see that as a risk that would prevent the father spending time with the child X.
The other issue is of more recent origin. Apparently, there was a need for Mr F and his former partner to be at the Magistrates Court in early 2023. Why the father chose to be there is, in my view uncertain, but his presence was always likely to be provocative to Mr F. Earlier today when it became apparent in my courtroom that Mr F and his solicitor acting for him in his family law matter were in the courtroom, I ordered that they leave the courtroom. His presence with his solicitor was, perhaps unintended or not, I do not know, a clear provocation of the father.
Now, whilst the issue in early 2023 will no doubt be the subject of further evidence, again, it is a reflection of what I think is the growing tensions and, quite possibly, the childish and immature behaviour of the adults in this matter which has put this young girl X’s mental health at risk.
Consistent with the evidence of the father in his most recent affidavit about that incident, which has not been the subject, although it could have been, of affidavit evidence by Mr F, who may well deny the comments that are attributed to him, the father raises concerns about what sorts of things are being said in the privacy of the mother’s home by Mr F and/or his children that could be affecting X. I accept that is a concern the father has, and it may have a basis. However, in a practical sense, the mother and Mr F have been in a relationship for some time. They co-parent, in a sense, not only X, but Mr F’s children. More of the dynamics of that household will become apparent from X’s perspective through the family report.
In mentioning these two more recent matters, I do not wish to minimise the matters which the parties raise in their Notices of Abuse filed in these proceedings, which I have also read.
A child impact assessment was prepared, which I have read, and which, when read in light of the report from Dr H (Exhibit 1), should have made it clear to everybody that this child wanted to resume some form of time with her father. In fact, may well say that it should have occurred much earlier. It is a tragedy, in my view, that there has been another two months, some of which is not due to the parents but because of the sicknesses of the Senior Judicial Registrar, that it has taken this long for a judicial officer to make a decision on the matter.
Although I am well aware of the pathway under the Family Law Act 1975 (Cth) (“the Act”) identified by the authorities in relation to interim parenting orders, as is consistent with decisions like Banks & Banks (2015) FLC 93-637, the Court should only deal with those matters which are in dispute today. I gave the parties a preliminary view. From that preliminary view, the parties were unable to resolve the issue of schooling, but had resolved, at least as a starting point, a number of orders which they invited me to make by consent. They reflected the preliminary views expressed by the Court.
The orders provide, and I will make them on an interim basis, that the child’s time with the father recommence from this Sunday between 10.00am and 7.00pm in the presence of the paternal grandmother, Ms Stone. Ms Stone is in court and has indicated to the Independent Children’s Lawyer her preparedness to support her son and, in particular, her granddaughter. She has, in fact, demonstrated her commitment by moving from Sydney to live in the home of the father.
To the credit of the mother, and I give her credit, when the proposition which arise today of Ms Stone playing a role in reintroduction of and continuing, at least initially, the relationship between the father and X, the mother adopted the proposal and did not raise any concerns about Ms Stone. It is pleasing, and not always the case, that another parent is prepared to accept that a grandparent from, if you like “the other side” also can have a very special relationship with that child which is in the interests of the child. What the mother’s consent suggests to me is that she acknowledges the importance of that relationship to X, and if she was in any doubt, Exhibit 1 made it clear that was X’s view as well.
That can be extended to her sibling N, who is 17 years of age. I know not a lot about N other than it seems he has finished grade 12 recently and is doing some sort of entertainment work, but more importantly, his little sister has an important relationship with him, wants time with him, as he does with her. It is a great tragedy, in my view, and it has not been in the child’s best interests that there has been no time for this child with the father’s household in any form since mid-2022 until what will be this Sunday.
The father, not surprisingly and consistent with the earlier Orders of 2018, wants to move as quickly as possible to overnight time. He made some submissions through Mr Ware which have caused me to consider his position. However, I am not prepared to move to overnight time at this stage but offering an alternate proposal that there be visits for each Sunday from 10.00am to 7.00pm on 22 January, 29 January, 5 February, 12 February, 19 February and 26 February; that the child have a break from time on the weekend of 4 and 5 March but then will resume alternate weekend time on Saturday 11 March and also on 25 March; some time over the Easter break, which I will discuss with the parties, and then 22 April. That time will be from 10.00am Saturday until 7.00pm Saturday and then, on the alternate weekend, from 9.00am Sunday until 6.00pm Sunday so as to allow the child to prepare for her school the next day.
Of course, these orders are made in the absence of the parties reaching other agreements and it may be, as Ms Lyons perhaps optimistically opined in her submissions, that during the course of the family report interviews to take place on 6 March 2023, and perhaps with some assistance from Dr D, the family report writer, they may move to an overnight regime by consent. At the moment, the mother is not prepared to do so and I am not prepared to order it at this stage.
The matter will return to the Court for me to consider the next stage of this matter at 9.30am on 27 April 2023. The parties will be required to file and serve by 20 April 2023 a minute of the final order they are seeking. That includes the Independent Children’s Lawyer. In my view, such orders are in the best interests of the child at this stage, taking into account the risks, which are still unresolved, that each party raised against the other and the fact that there has been no time for now what is approaching, sadly, nearly eight months. My aim is that the child begin her new school year with the awareness that she will now be seeing her father again on a regular basis.
There is a dispute about schooling. The Senior Judicial Registrar, when he made his Orders but was unable to move to the issues in dispute today because of other factors, including the pending investigation (still unresolved) of the Queensland Police, provided in his Orders that, save and except for decisions relating to the children’s education, the mother and father have equal shared parental responsibility for major long-term issues.
In the absence of reasons from the learned Senior Judicial Registrar, this Order could have meant that no one could make a decision about schooling because he intended to make a decision about schooling when the matter was due to come back before him on 21 December 2022. That probably is a reasonable interpretation. In my view, the parties should have equal shared parental responsibility, and I will decide that the child goes to school, on an interim basis at this stage, by returning to C School where she completed last year.
My reasons for doing so are at least as follows. Both parents were aware and the father, I think, fairly acknowledges that there were some issues experienced by X at O School. The child expressed to Dr H that she was quite unhappy at O School. She felt that her grades were worse than compared to C School. She made some comments about their mathematics program. She is reported by Dr H as saying that she told the father:
that she felt much happier being back at [C School], because the school was supportive and familiar to her. She said that she likes being at [C School] and wants to stay there.
When she is interviewed by Dr D on 6 March 2023, she may have reconsidered where she wants to go to school. However, on an interim basis, when one of the issues I must consider is the effect of change from current arrangements, I would not be prepared to send this girl back to O School when she expressed a desire to remain at C School. The evidence is insufficient for me to understand with any certainty whether the parents’ apparent agreement that she be raised as religious can only occur by her going to a school embracing a faith teaching education or not. I am hoping that the school will not be an issue when the matter comes back to me.
Mr Ware on behalf of the father identified that although the father was aware of the comments made by the child, and he could hardly not be, his concern was that he felt he was, as I understand the submission, excluded from participating in the child’s education by the way that the school treated him. By making an order for equal shared parental responsibility, which I do, varying the earlier order of the Senior Judicial Registrar, he has every right, as does the mother, to access information relating to the child at school, but lest there be any doubt, I order that today’s order is authority for both parents, at their cost, to obtain access to any information from the child’s current school, C School, as to her educational development. There is no basis why the father should be excluded from access to information about his child’s education. The orders should ensure that does not become a problem, but if it is, no doubt I will hear about it.
It is hoped that the family report from Dr D might provide a useful tool for these parents to consider long-term orders for the child without further or more extensive legal action. They will need to change their focus to that which the law demands of them; that is agreeing to arrangements which are in the best interests of the child. The Act does not provide parents with rights. It reflects that parents have responsibilities. The rights remain and are vested in the child. In this case, Ms Khushal, an experienced Independent Children’s Lawyer, has a duty under the Act, having been so appointed, to continue to provide to the Court the evidence that is necessary to enable the Court (if the parents cannot agree on the orders) to make orders that are in the child’s best interests.
Now, the only thing I have not made an order about which I need to is what happens on the weekend that involves Easter, because with the regime I have put in place, that would be a normal Easter weekend, I do not know. There is no evidence before me that tells me about whether or not there is any special or religious or other school-based activities. If there is not, then the child can spend time with the father on the Saturday and Sunday of the Easter weekend as per the current arrangements. The order will just include the weekend of 8 and 9 April – the Saturday and Sunday.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 17 May 2023
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