GALARDI & RENOSA - [2020] FCCA 2755

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GALARDI & RENOSA

Details

AGLC: GALARDI & RENOSA [2020] FCCA 2755
Case: [2020] FCCA 2755
Decision Date: 8 October 2020

CaseChat Overview and Summary

In the matter of *Galardi & Renosa*, heard by Judge Humphreys, the court considered interim parenting orders concerning two children, X (born 2017) and Y (born 2019). The dispute involved allegations of family violence made by the mother, raising concerns about the children's safety and risk. The primary issue before the court was to determine with whom the children would live and the nature and extent of the father's time with them, while also assessing the parents' capacity for joint shared parental responsibility.

The court was required to determine whether the children were at risk of harm given the allegations of family violence. Consequently, the court had to decide on appropriate interim arrangements for the children's living situation and the father's contact, including whether such contact should be supervised. The court also needed to consider the parents' ability to co-parent and manage the children's welfare during the interim period.

Applying principles of child welfare and risk assessment, the court ordered that the children live with the respondent mother. The applicant father was to spend supervised time with the children, initially through a private supervision service and subsequently at a contact centre, with specific arrangements for frequency and duration. The court also made orders regarding communication between the parents, the children's medical assessments, and participation in programs aimed at improving parental communication and understanding. The proceedings were to be expedited, with a Family Report to be prepared.

Orders

Orders of the court

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;

(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.

10.

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.

11.

That a Family Report be prepared in these proceedings and the proceedings be expedited.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.