GALARDI & RENOSA
[2020] FCCA 2755
•8 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GALARDI & RENOSA | [2020] FCCA 2755 |
| Catchwords: FAMILY – Interim parenting orders – with whom the children live with – whether the parents have joint shared parental responsibility – allegations of family violence made by the mother – whether the children are at risk – children to spend supervised time with the father – assessment of risk – children to live with the mother and spend supervised time with the father – interim orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60, 61, 65 |
| Cases cited: Goode and Goode (2006) 36 FamLR 422 Keats and Keats [2016] FamCAFC 156 Marvel and Marvel (2010) 43 FamLR 348 |
| Applicant: | MR GALARDI |
| Respondent: | MS RENOSA |
| File Number: | PAC 1998 of 2020 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 30 September 2020 |
| Date of Last Submission: | 30 September 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 8 October 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Kassem |
| Solicitors for the Respondent: | Ms Hernandez |
| Solicitors for the Independent Children's Lawyer: | Ms Newland |
ORDERS
That the children X born in 2017 and Y born in 2019 (“the children”) live with the respondent mother.
That the applicant father spend time with the children under supervision, at the B Contact Centre in Suburb C, Victoria on days and times as agreed or failing agreement, at dates and times nominated by the Centre, being not less than two (2) hours per fortnight and up to four hours per fortnight and to facilitate such time both parents shall:
(a)contact the B Contact Centre in Suburb C, Victoria within 7 days of the date of these Orders to arrange intake;
(b)attend intake at the first available opportunity;
(c)comply with all policies, procedures and directions of the B Children’s Contact Centre in Suburb C, Victoria;
(d)that the parties equally share the fees for supervision as nominated by the B Children’s Contact Centre in Suburb C, Victoria.
That during the waiting period for the children to commence spending time with the applicant father, pursuant to Order 2 above, the applicant father spend time with the children supervised by a private supervision service and subject to the following:
(a)that within 7 days of the date of these Orders, the respondent mother is to provide to the applicant father in writing by email, two proposed private supervision services and the applicant father is to select one service and provide confirmation to the respondent mother by email of that selection, within a further 7 days; and then
(b)once a supervision service is selected, the parties shall within 7 days of that selection contact the supervision service and do all things necessary for intake to occur; and then
(c)that the parents shall do all things necessary at all times to comply with the selected supervision organisation’s policies, procedures and directions;
(d)the applicant father is to spend supervised time with the children on the first Saturday or Sunday of each month, for up to four hours with changeover to occur as directed by the supervisor;
(e)that the applicant father and respondent mother shall equally share in the cost of the supervision.
That the applicant father contact the children on a mobile phone number provided by the respondent mother, pursuant to Order 9 herein on Tuesdays and Fridays between 6:00pm and 6:30pm, for the purposes of having FaceTime, Skype or telephone time with the children.
That should the children require urgent medical attention or be hospitalised, the respondent mother shall advise the applicant father of the details of the children’s diagnosis and prognosis by way of text message, as soon as practical.
That within 7 days of the date of these Orders, the respondent mother and applicant father are to contact D Families and enrol in the ‘Keeping Contact Program’ and thereafter, provide to each other and the Independent Children’s Lawyer (“ICL”), written confirmation of enrolment on any waiting list, commencement date once given and certificate of completion once completed.
That within 48 hours of the date of these Orders, the respondent mother and applicant father shall each provide to each other, a current mobile phone number which is to be used for the purpose of Orders 4 and 5 herein only.
That the parents are hereby restrained from speaking about the other parent or a member of the other parent’s household, in a derogatory manner in the presence or hearing of the children and will remove the children from the presence or hearing or any third party doing so.
That within 14 days of the date of these orders, the respondent mother is to make an appointment for X with a paediatrician, for the purposes of having X’s behavioural difficulties and speech and any other matter the paediatrician thinks necessary assessed and the respondent mother shall provide to the ICL and applicant father’s solicitor, the name and contact details of that paediatrician and a copy of the assessment when completed.
That the mother will take X to the paediatrician as required by the paediatrician and will engage X with any other medical practitioners or therapists that X may be referred to by that paediatrician and provide to the ICL and the applicant father’s solicitor, the name and contact details of any referrals that X attends upon.
That a Family Report be prepared in these proceedings and the proceedings be expedited.
IT IS NOTED that publication of this judgment under the pseudonym Galardi & Renosa is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1998 of 2020
| MR GALARDI |
Applicant
And
| MS RENOSA |
Respondent
REASONS FOR JUDGMENT
Introduction
This judgment concerns interim parenting orders in respect of two children of the relationship, X (“X”), currently aged three years and two months and Y (“Y”), currently aged one year and two months (“the children”). The application is bought by Mr Galardi (“the applicant father”), following separating from Ms Renosa (“the respondent mother) (“the parties”) in November 2019 and relocating the respondent mother with the children to Melbourne.
Agreed Facts
The respondent mother is 33 years of age. The applicant father is 36 years of age. The parties commenced a relationship in either late 2015 or early 2016. The parties commenced cohabitation in the first half of 2016.
Child X was born in 2017. X had a heart condition and needed surgery.
Child Y was born in 2019.
Following an incident in November 2019, to which the respondent mother alleged that the applicant father assaulted her in the presence of the children, the applicant father was arrested by police for assaulting the respondent mother and an Interim Apprehended Domestic Violence Order (ADVO) was taken out by police.
Following this incident, the respondent mother relocated to Melbourne with the children.
In March 2020, the applicant father obtained an s 60I Certificate under the Family Law Act 1975 (Cth) (“the Act”).
From May 2020, until the current point of time, the applicant father commenced communication with the children via FaceTime. On 2 May 2020, the applicant father filed an Initiating Application with the Court.
On 2 June 2020, the respondent mother received chocolates in the mail sent to her address by the applicant father, with the name as the sender falsely listed as Ms E. The applicant father admits sending the chocolates, when he attended Suburb F Post office with his mother.
On 20 August 2020, charges of assaulting the respondent mother were withdrawn. A final ADVO was granted in the respondent mother’s favour against the applicant father. That order is in existence until December 2020.
On 30 September 2020, the matter was listed before this Court for an urgent Interim Parenting Order hearing.
Interim orders sought by the Applicant Father
In an Amended Initiating Application filed 20 August 2020, the applicant father seeks the following interim orders, inter alia:
1)that, pending final determination of these proceedings, the respondent mother forthwith return the children to Sydney and not thereafter, remove the children from Sydney without the applicant father’s consent.
2)both parents have equal shared parental responsibility for the children.
3)pending further order, the children live with the respondent mother.
4)pending further order, the applicant father spend time with the children as follows:
(a) every Monday from 3:00pm to 6:00pm;
(b) every Saturday from 10:00am to Sunday 5:00pm;
5)pending further order, the children have telephone, Skype or Facetime communication with the applicant father, each Wednesday at 9:00am or another time as agreed between the parents.
During the course of the hearing, the applicant father offered to pay the reasonable relocation and travel expenses of the respondent mother and the children, from Melbourne to Sydney.
Interim orders sought by the Respondent Mother and Independent Children’s Lawyer
At the commencement of the hearing, the respondent mother adopted the interim orders sought by the Independent Children’s Lawyer (“ICL”), which are as follows, inter alia:
1) that the children live with the respondent mother in Melbourne;
2) that the applicant father spend time with the children, under supervision, at the B Children’s Contact Centre Suburb C Victoria, on days and times as agreed, or failing agreement, at dates and times nominated by the centre, being not less than two hours per fortnight and up to four hours per fortnight;
3) the parties equally share the fees for supervision at the B Children’s Contact Centre;
4) that during the waiting period for the children to commence spending time with the applicant father, pursuant to the above order, the applicant father spend time with the children supervised by a private supervision service, as agreed between the parties, for a period of up to four hours on the first Saturday or Sunday of each month, with changeover to occur as directed by the supervisor;
5) the applicant father contact the children on Tuesdays and Fridays between 6:00pm and 630pm, for the purposes of having Facetime, Skype or telephone time;
6) should the children require urgent medical attention or be hospitalised, the respondent mother shall advise the applicant father the details of the children’s diagnosis and prognosis, by way of text messages, soon as practicable;
7) that within seven days of the date of these orders, the respondent mother and applicant father are to contact D Families and enrol in the ‘Keeping Contact Program’;
8) that the respondent mother is to make an appointment for X with a paediatrician, for the purposes of having an assessment of his behavioural difficulties and speech issues. This report is to be provided to the ICL and the applicant father’s solicitor when complete;
9) that the respondent mother take X to any other medical providers or therapists, as directed by the paediatrician and provide details to the ICL and the applicant father’s solicitor;
10) that a Family Report be prepared in these proceedings and the proceedings expedited.
The Applicant Father’s Evidence
The applicant father’s evidence is contained in three affidavits filed on 2 May 2020, 20 August 2020 and 29 September 2020, together with a Notice of Risk (“NOR”) filed on 2 May 2020. The applicant father denies all allegations that he has committed any act of domestic violence on the respondent mother, during their relationship. The applicant father alleges he and the respondent mother were involved in a verbal argument on 5 November 2019, during which the respondent mother lashed out by scratching his face and neck. Police were then called. The applicant father admits that he was arrested and charged with common assault and an interim ADVO was taken out.
Following the applicant father’s arrest, he alleges that the respondent mother took the children to an undisclosed location and prevented all reasonable attempts by him, to contact them. The charge of common assault was withdrawn and dismissed. However, a final ADVO was granted, including that the applicant father not assault or threaten, stalk, harass, intimidate or intentionally or recklessly destroy any property of the respondent mother. This order expires on 20 December 2020.
The Respondent Mother’s Evidence
The respondent mother’s evidence is contained in two affidavits filed 6 July 2020 and 2 September 2020. The respondent mother alleges that her relationship with the applicant father began to deteriorate when she became pregnant with their first child. The respondent mother alleges that she was the primary carer of the children, during the relationship. The respondent mother alleges that she received limited assistance from the applicant father, notwithstanding the fact he was not working.
After X was discharged from hospital, following heart surgery, it is alleged that the applicant father became controlling of the respondent mother and X. The respondent mother alleges that the applicant father became very possessive of X. Following the birth of their second child, Y, the respondent mother alleges that the applicant father would spit at her and throw knives at her, while she was holding and breastfeeding Y. The respondent mother alleges the respondent father was verbally, emotionally and physically abusive towards her on a regular basis. The respondent mother alleges that the applicant father was coercive and controlling of her and X. This included threats to kill the applicant mother and Y.
Around 5 November 2019, the respondent mother alleges that the applicant father hit her during a verbal altercation. The police were called and arrested the applicant father. The respondent mother alleges that she was threatened by the paternal grandfather and as a result of that, took the children and drove to Melbourne.
Since that time, the respondent mother has been residing in low-cost housing and accessing assistance from a number of community welfare organisations. The respondent mother states she is unable to financially return to Sydney as she cannot afford it and has her own family and extended support network in Melbourne, including her sister who has children of a similar age to X and Y.
In a tender bundle provided to the Court, there is documentation from the respondent mother’s general practitioner that includes an allegation of assault, reported to the general practitioner during the weekend of the 13 and 14 April 2019, in which she alleges the applicant father hit her head so hard that her left eardrum was perforated. A further note from the medical practice indicates that on 9 September 2019, the respondent mother complained that the applicant father was setting up cameras in the house.
A police history in relation to the applicant father indicates that on 28 March 2020, the applicant father was seen to be entering a known drug supply hotspot. The police observed the applicant father to be suffering the possible effects of methamphetamine. The applicant father and a companion were issued with a move on direction, on the basis that they were suspected of attempting to buy illegal drugs.
The Law
The Court, in determining this application, has to consider what orders are in the children’s best interest as the paramount consideration (see
s 60CA of the Act). The primary considerations, as to what is in the best interests of the children, are set out in s 60CC(2) of the Act, being the benefit of the children having a meaningful relationship with both of the parents and the need to protect the children from physical or psychological harm from either being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(3) of the Act outlines a number of additional considerations that need to be taken into account in making any parenting order, including in particular, in this case, the practical difficulty and expense of the children spending time with and communicating with a parent, together with any family violence involving the children or members of the children’s family and if a family violence order applies, any relevant inferences that can be drawn from that order (see s 60CC(3)(e), s 60CC(3)(j) and s 60CC(3)(k) of the Act). The Act does not mandate the discussion of considerations under s 60CC in any particular order and it is well recognised that additional considerations may outweigh the primary considerations.
Section 61DA of the Act provides that when making a parenting order, the Court must apply presumption that it is in the best interests of the children, for the children’s parents to have equal shared parental responsibility. That presumption does not apply where there are reasonable grounds to believe that a parent has engaged in the abuse of the child/ren 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 best interest of the children. 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.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s 65DAA of the Act, which provides for a consideration of the children spending equal time with each of the parents. If the Court finds that it is not of the children’s best interest and reasonably practicable, the Court must consider the children spending substantial and significant time with each of the parents.
In Goode and Goode (2006) 36 FamLR 422, the Full Court mandated that this legislative approach was be followed in all parenting cases and in particular, set out the procedural steps to be followed on an interim application, noting that in an interim application, there may be little uncontested evidence to enable more than a limited consideration of the matters set out above.
In Marvel and Marvel (2010) 43 FamLR 348 at [120], the Full Court made the following comments:
As has frequently been emphasised interim parenting proceedings and orders made as a consequence are a necessary, but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and often, for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at a final hearing.
In Keats and Keats [2016] FamCAFC 156 at [9], the Full Court held that apart from relying on uncontroversial or agreed facts, a Judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on the children, in the event that a controversial assertion is acted upon or rejected.
Consideration
Interim parenting hearings post particular difficulties, in that no evidence is tested and the Court must rely entirely upon the material contained in any affidavits, together with any additional material that’s been provided by way of tender bundles.
Both parties agree that, pending any final order, joint parental responsibility should continue. Both parties agree that the children should reside with the respondent mother, with the applicant father to spend time with the two children. The amount of that time together with whether that time should be supervised and whether the respondent mother should be ordered to return to Sydney, to facilitate time being spent by the applicant father with the children, is the issue that is in contest.
These children are very little and the consequence of the respondent mother having removed the children to Melbourne, creates considerable difficulties for the applicant father to spend substantial and meaningful time with them. It would only be if the children were to be returned to Sydney with the respondent mother that this could occur.
In terms of the capacity for the respondent mother to return to Sydney, the Court notes the assertion that the respondent mother is living in assisted accommodation, which she is able to afford on her current Centrelink benefits. The applicant father, whilst offering to pay relocation expenses, acknowledges that he is not in a position to support the respondent mother financially, in relation to rental accommodation in Sydney. The applicant father acknowledges that the only real way that the respondent mother could relocate to Sydney, would be for her to be given access to public housing. How this is to occur on a practical basis, has not been put to the Court. Further, the respondent mother asserts that she would be isolated from family and other community supports in Melbourne and that both she and the children are now well settled there.
The court also acknowledges that if it were minded to order that the children and the respondent mother return to Sydney, this could not occur until pandemic travel restrictions are lifted. It would be neither practicable nor desirable for the children and the respondent mother to have to go through a quarantine period, in order for them to return from Melbourne to Sydney. In practice, this means that any order for the children to return to Sydney, could not take effect until some unknown date in the future.
Material has been put to the Court of the respondent mother making allegations of serious domestic violence, including threats to kill the respondent mother and the older child X. These allegations are supported by the existence of an ADVO in the respondent mother’s favour against the applicant father, as well as medical notes indicating that the respondent mother made complaints to her general practitioner of being assaulted by the applicant father and on one occasion, suffering a perforated eardrum.
The Court is also mindful of the material contained in the police reports that were tendered, indicating that the applicant father has had interaction with New South Wales Police, in circumstances where he was near a “known drug hot spot” and was allegedly thought to be under the influence of methyl amphetamine. Whilst the allegations of domestic violence and drug usage are only that, allegations, they are matters which must cause the Court to take a very conservative approach with respect to the best interests of the children. Section 60CC(2A) of the Act dictates that when considering the benefit of the children having a meaningful relationship with both of the parents, together with the need to protect the children from physical or psychological harm, or from being subjected to exposed to abuse neglect or family violence, the latter considerations are to be given greater weight, as compared to the benefit of the children having a meaningful relationship with both of their parents.
The Court is satisfied that in the circumstances where there are allegations of domestic violence, such that the respondent mother sought to remove herself from Sydney to Melbourne, that it is not in the children’s best interests, particularly given the very tender age, that an order be made for equal time to be shared between the parents. On an interim basis, the Court is satisfied that it is in the children’s best interests for them to remain in Melbourne with the respondent mother and continue to have electronic communication with the applicant father, until such time as travel restrictions are lifted.
Following the lifting of travel restrictions, the Court is of the view that the applicant father, together with the paternal grandparents, should be permitted to have supervised time with the children, as proposed by the ICL.
The Court notes that this is a very conservative approach however, in the circumstances where there are untested allegations of domestic violence and drug usage on the part of the applicant father, together with his acknowledged actions in sending a parcel to the respondent mother under a false name, with an inference that the paternal grandmother was aware of this action, dictate such an approach.
The Court does not consider it to be in the current best interests of the children for them to be removed from the current supportive arrangements that are in place in Melbourne and secure accommodation that the respondent mother apparently now resides in, to return to Sydney, when there is no apparent capacity for a guarantee of any accommodation to be available to them.
Whilst the Court has made some reference to particular factors in s 60CC of the Act or any particular matter does not reflect a failure to consider it. Rather, it is reflective of the Courts assessment that such factors in the current case had limited relevance on an interim basis. The Court however has considered each relevant provision of s 60CC of the Act, in coming to the conclusion set out in the orders at the beginning of this judgement.
Conclusion
The orders of the Court are as follows:
That the children X born in 2017 and Y born in 2019 (“the children”), live with the respondent mother.
That the applicant father spend time with the children under supervision, at the B Children’s Contact Centre in Suburb C ,Victoria on days and times as agreed or failing agreement at dates and times nominated by the Centre, being not less than two hours per fortnight and up to four hours per fortnight and to facilitate such time both parents shall:
(a)contact the B Children’s Contact Centre in Suburb C, Victoria within 7 days of the date of these Orders to arrange intake;
(b)attend intake at the first available opportunity;
(c)comply with all policies, procedures and directions of the B Children’s Contact Centre in Suburb C, Victoria;
(d)that the parties equally share the fees for supervision as nominated by the B Children’s Contact Centre in Suburb C, Victoria.
That during the waiting period for the children to commence spending time with the applicant father pursuant to Order 2 above, the applicant father spend time with the children supervised by a private supervision service and subject to the following:
(a)that within 7 days of the date of these Orders, the respondent mother is to provide to the applicant father in writing by email, two proposed private supervision services and the applicant father is to select one service and provide confirmation to the respondent mother by email of that selection within a further 7 days; and then
(b)once a supervision service is selected, the parties shall within 7 days of that selection contact the supervision service and do all things necessary for intake to occur; and then
(c)that the parents shall do all things necessary at all times to comply with the selected supervision organisation’s policies, procedures and directions;
(d)the applicant father is to spend supervised time with the children on the first Saturday or Sunday of each month for up to four hours with changeover to occur as directed by the supervisor;
(e)that the applicant father and respondent mother shall equally share in the cost of the supervision.
That the applicant father contact the children on a mobile phone number provided by the respondent mother, pursuant to Order 9 herein on Tuesdays and Fridays between 6:00pm and 6:30pm, for the purposes of having FaceTime, Skype or telephone time with the children.
That should the children require urgent medical attention or be hospitalised, the respondent mother shall advise the applicant father of the details of the children’s diagnosis and prognosis by way of text message as soon as practical.
That within 7 days of the date of these Orders, the respondent mother and applicant father are to contact D Families and enrol in the ‘Keeping Contact Program’ and thereafter provide to each other and the ICL written confirmation of enrolment on any waiting list, commencement date once given and certificate of completion once completed.
That within 48 hours of the date of these Orders, the respondent mother and applicant father shall each provide to each other a current mobile phone number which is to be used for the purpose of Orders 4 and 5 herein only.
That the parents are hereby restrained from speaking about the other parent or a member of the other parent’s household, in a derogatory manner in the presence or hearing of the children and will remove the children from the presence or hearing or any third party doing so.
That within 14 days of the date of these orders, the respondent mother is to make an appointment for X with a paediatrician for the purposes of having X’s behavioural difficulties and speech and any other matter the paediatrician thinks necessary assessed and the respondent mother shall provide to the ICL and applicant father’s solicitor, the name and contact details of that paediatrician and a copy of the assessment when completed.
That the respondent mother will take X to the paediatrician as required by the paediatrician and will engage X with any other medical practitioners or therapists that X may be referred to by that paediatrician and provide to the ICL and the applicant father’s solicitor, the name and contact details of any referrals that X attends upon.
That a Family Report be prepared in these proceedings and the proceedings be expedited.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 8 October 2020
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