Gallego and Mackweth & Ors

[2014] FamCA 654

FAMILY COURT OF AUSTRALIA

GALLEGO & MACKWETH AND OTHERS [2014] FamCA 654

FAMILY LAW – CHILDREN – Family violence – where the mother seeks to suspend the time spent by the father with the children – where the father was charged with an assault on the mother – where there has been an ADVO made against the father – where there are criminal proceedings on foot – where the children are afraid of their father – consideration of best interests of the children – interim orders made suspending time with the father

Family Law Act 1975: S65DA, 62B

APPLICANT: Ms Gallego

1^st RESPONDENT: Mr Mackweth

2^nd RESPONDENTS: Ms G and Mr P and Ms Q Mackweth

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: SYC 3015 of 2012

DATE DELIVERED: 12 August 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 12 August 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Diana Perla & Associates

SOLICITOR FOR THE 1ST RESPONDENT:	Taylor & Scott Lawyers
SOLICITOR FOR THE 2ND RESPONDENT:	Hills Family Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW - Sydney

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the orders providing for the father to spend time with the children D born … 2006 and B born … 2009 (“the children”) being orders 2, 3, 4 and 5 of annexure A to the minute of Consent orders of 18 July 2012 be suspended pending further order.

2. That the children spend no time with the father.

3. That the father and the 2^nd respondents file such material as they may be advised within 14 days of this date.

4. That the date of 25 August 2014 be vacated.

5. That the matter be referred to the Associate of the Honourable Justice Aldridge to be listed by arrangement.

6. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gallego and Mackweth and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3015 of 2012

Ms Gallego

Applicant

And

Mr Mackweth

1^st Respondent

And

Ms G and Mr P and Ms Q Mackweth

2^nd Respondents

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Before the Court is an Application in a Case filed on behalf of the mother Ms Gallego (“the mother”), in relation to the children, D (“D”), born in 2006 and aged eight years, and B (“B”), born in 2009 and aged five years. The father of the children and the respondent to the proceedings is Mr Mackweth (“the father”).

2. An application has been filed in relation to time with the children by the paternal grandmother and aunt and, although that application was not before me today, I allowed them to be represented and heard submissions on their behalf. 

3. The application before me today is an application by the mother to suspend the time that the children spend with the father, pending further order. 

4. The parties separated in February 2011 and the mother has been the primary carer for the children. On 18 July 2012, orders were made by consent in the Federal Magistrates Court, as it then was, for the children to live with the mother and spend supervised time with the father. That regime of supervision continued in these proceedings until April 2014. 

5. The matter comes before the Court today in circumstances where the mother alleges that she was the subject of a serious assault by the father in the early hours of 4 April 2014.

6. I am conscious of the fact that these are interim proceedings and that no doubt the mother’s allegations will be hotly contested by the father. I am also conscious of the fact that the father has been charged with offences arising out of the alleged assault and that he is defending those charges.

7. However, the only evidence I have before me today is the evidence of the mother who gives evidence that around 3.00 am on the morning of Friday, 4 April 2014, she was assaulted by the father who gained entry to her home wearing dark clothes, gloves and a respirator mask covering parts of his face. 

8. The mother says that she was punched in her eyes a number of times by the father. B was awake and witnessed the assault. 

9. The mother says that she was then further assaulted by the father and both children were present. It is the mother’s evidence that the father tried to force her over a balustrade. 

10. The mother says that, at one stage, the father removed the covering from his face and both she and the children were clearly able to see him. She further alleges that the father said to her “Remember, I have guns. I could kill you all. I have nothing to lose.” 

11. Ultimately, the police were called. The mother was taken by ambulance to Concord Hospital treated for injuries including bruising and haemorrhaging to her eyes and the right side of her mouth. 

12. The father was charged in relation to the assault and an apprehended domestic violence order (“ADVO”) was issued by the police against him for the protection of the mother and the children. It was a condition of the ADVO that the husband not approach the mother or the children.

13. After the alleged assault, these proceedings were mentioned before Aldridge J on 28 April 2014 and his Honour stood the matter over to December 2014 so that the criminal proceedings could take their course. 

14. Since the making of the ADVO, the father has made a number of approaches to the solicitors acting on behalf of the mother, alleging that the mother is in breach of the orders for the children to spend time with him. 

15. In July 2014, the husband filed an Application in a Case seeking recovery orders and an affidavit in support of that application which makes no mention of the criminal proceedings. That application was ultimately discontinued. 

16. It is the evidence of the mother that both of the children were present and witnessed the assault upon her by their father. 

17. It is her evidence that both of the children have been seriously affected by the aftermath of the assault, that they are afraid, and that they continually say to her that they are afraid of their father. The mother gives extensive evidence of conversations between herself and the children where the children expressed their fear of the father.

18. Both of the children have made statements which are intended to be used in the criminal proceedings.

19. The matter was before the Suburb I Local Court yesterday, 11 August 2014, and the legal representatives of the father, in the course of those proceedings, sought to vary the ADVO to allow him to spend time with the children. That application has been stood over to 18 August for determination. Also, yesterday, before the Court, the lawyers acting for the husband in his criminal proceedings indicated to the Court that they would apply to cross-examine the children at the committal hearing. 

20. Before me today, the solicitor for the father indicated that, if I were to accede to his request that he spend time with the children, he would not require the children for cross-examination. However, I have no power to restrain him from changing his mind and requiring the children in due course. At the present time, the children are witnesses in defended criminal proceedings where their father is the defendant. The father’s application for leave to cross-examine the children is to be heard on 3 September 2014. 

21. Before me today the solicitor for the father seeks to adjourn these proceedings and wishes to file material in relation to the application. It is entirely appropriate that the father have the opportunity to do so. I am also advised by the solicitor for the 2^nd respondents that they wish to file an application seeking time with the children in the absence of the father. It is also appropriate that they have that opportunity.

22. I am required to determine what arrangements should be made in the interim period. In that consideration, the best interests of the children are the paramount consideration. Whilst it is recognised and required that I am to consider the benefit to the children of having a meaningful relationship with their father, I am also required to consider the need to protect them from exposure to family violence.

23. Before me, the independent children’s lawyer (“ICL”) submits that the time with the father should be suspended until after the committal hearing and generally supports the application of the mother. 

24. It is not in the best interests of these children, on the basis of the evidence before me, that they spend time with their father in circumstances where it is alleged by the mother that there has been a serious assault upon her and that as a result of that assault the children are afraid of their father. 

25. The suspension will be for a limited period until the father has had the opportunity to file the evidence upon which he seeks to rely. The matter can then be reconsidered by the trial Judge in the light of that evidence. Even if the children’s time with the father is suspended until the committal hearing, the time is not so great that the effect of the children’s not seeing their father is outweighed by the need to protect them from the effects of violence against their mother and their alleged fear of their father.

26. I propose to suspend the orders which were made providing for time between the father and the children. There will therefore be no contact of any nature between the father and the children.

27. However, in order to accord procedural fairness to the father and to the 2^nd respondents I intend to adjourn the proceedings to a date to be fixed before Aldridge J who is the trial Judge and allow the 2^nd respondents and the father to make such further applications as they wish.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 12 August 2014.

Associate:

Date:  12 August 2014