Galvin & Pacotto

Case [2024] FedCFamC1F 582

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Galvin & Pacotto [2024] FedCFamC1F 582

File number(s): SYC 5557 of 2019
Judgment of: KARI J
Date of judgment: 2 September 2024
Catchwords:

FAMILY LAW – CHILDREN – Family Violence – Where the father has perpetrated family violence upon the mother – Where the father has behaved in ways which were coercive and controlling of the mother by use of threats, intimidation, derogatory language, humiliation and aggression – Where the father admitted to engaging in threatening and intimidating behaviour – Where the Court finds that the father has not developed insight into the harmful natures of his behaviour and the impact on the mother – Where the Court is satisfied the father continues to present a risk of harm.

FAMILY LAW – CHILDREN – With whom a child spends time – Where the mother asserts that the father presents an unacceptable risk of harm – Where it is agreed that the child should live with the mother – Where the mother seeks that the child spend no time with the father or alternatively professionally supervised time only – Where the father seeks unsupervised and overnight time with the child – Where the father’s alternate position is that the paternal grandmother supervise his time with the child - Where the child derives value from her relationship with the father and the paternal family – Where severing the relationship between the child and the father would be more damaging to the child than enabling her to maintain the relationship in a measured fashion – Where the Court does not consider that the child would be safe and protected from the risk of harm if there was to be unsupervised time spending – Where the paternal grandmother is not an appropriate candidate to supervise the father’s time – Where the Court considers that ongoing professional supervision is appropriate – Orders made for the child to spend time with the father on one occasion each month – Orders made for the father’s time with the child to be professionally supervised.
Legislation:

Australian Passports Act 2005 (Cth) s 11

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 64B, 68L

Family Law Amendment Act2023 (Cth)

Cases cited:

B and B (1993) FLC 92-357

Bielen & Kozma (2022) FLC 94-123

Carter & Wilson [2023] FedCFamC1A 9

Deiter & Deiter [2011] FamCAFC 82

Isles & Nelissen (2022) FLC 94-092

Jones v Dunkel [1959] 101 CLR 298

M v M (1988) 166 CLR 69

Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96

Ramzi & Moussa [2022] FedCFamC2F 1473

Number of paragraphs: 169
Date of last submissions: 29 August 2024
Date of hearing: 13-17, 20-22 May 2024, 29 August 2024
Place: Heard in Sydney, delivered in Adelaide
Counsel for the Applicant: Mr Dura SC
Solicitor for the Applicant: Walter & Elliot Family Lawyers
Counsel for the Respondent: Mr Reeve
Solicitor for the Respondent: Marsdens Law Group
Counsel for the Independent…

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AGLC
Galvin & Pacotto [2024] FedCFamC1F 582
Case
[2024] FedCFamC1F 582
Decision Date

CaseChat Overview and Summary

The case of Galvin & Pacotto involves the Federal Circuit and Family Court of Australia determining parenting arrangements for the child, X, born in 2016. The primary issue before the Court was the nature and extent of time the father, Mr Pacotto, should spend with X, given the mother, Ms Galvin, had alleged that the father had perpetrated family violence against her and that he continues to present a risk of harm to her and X. Additionally, the Court had to consider the mother's concerns about the father’s use of alcohol and illicit substances, and whether these factors should influence the time-spending arrangements.

The Court found that Mr Pacotto had engaged in coercive and controlling behaviour towards Ms Galvin, which amounted to family violence. Despite the father's admissions regarding his use of illicit substances and alcohol, he denied these were significant issues. The Court, however, concluded that these factors should be taken into account when determining the best interests of X. Given the risks identified, the Court ruled that any time-spending with the father should be supervised by a professional service, as this had proven to be effective in mitigating risks in the past. The Court also ordered that the father undergo regular drug and alcohol testing and be subject to targeted injunctions to further ensure the safety of X during time-spending sessions.

The Court's reasoning was that while X benefits from a relationship with her father, the risk of harm from the father’s past behaviour and potential substance use necessitated stringent supervision and testing. The orders made included that X would live with Ms Galvin and that Mr Pacotto would have supervised time with X on the first Saturday of each month. Additionally, the father was required to submit to drug and alcohol testing and adhere to other specified conditions to ensure X's safety. The Court also granted Ms Galvin sole parental responsibility and ordered the father to pay for all supervision-related costs.

The final orders discharge all previous parenting orders, establish the living arrangement for X, grant sole parental responsibility to Ms Galvin, and detail the specific conditions under which Mr Pacotto can spend time with X, including the requirement for professional supervision. The orders further include provisions for communication between the parents, drug and alcohol testing, and restrictions on the father's behaviour to protect Ms Galvin and X.

Orders

Orders of the court

SYC 5557 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS GALVIN

Applicant

AND:

MR PACOTTO

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

KARI J

DATE OF ORDER:

2 SEPTEMBER 2024

THE COURT ORDERS THAT:

Discharge of previous orders

1. All previous parenting orders be discharged.

Living arrangement

2. The child X born 2016 (“the child”) live with the mother.

Parental Responsibility

3. The mother have sole parental responsibility for the child.

4. In exercising her parental responsibility for the child:

(a) The mother shall advise the father in writing (using the parenting app provided for in Order 16), of any decisions she makes about major long-term issues regarding X’s health and education if and when they arise; and

(b) When notifying the father of any such major long-term decisions, the mother shall inform the father of any of the child’s treating professionals and the father shall be at liberty to make his own appointment, at his cost in all things, with such treating professional so as to keep himself informed regarding any such issue.

Time Spending and Communication

5. Henceforth the father shall spend time with the child on the first Saturday of each calendar month from 9.00 am until 4.00 pm.

6. The father’s time spending with the child shall at all times be supervised by B Contact Centre or any other professional supervision service as agreed between the parties from time to time, and failing agreement, as nominated by the mother in writing on the parenting app provided for in Order 16, and in relation to the same:

(a) The father shall be solely responsible for the costs associated with B Contact Centre or any other service; and

(b) Each of the parties shall do all acts and things required of them to comply with the guidelines of B Contact Centre or any other service.

7. Handover for the purposes of the father’s time spending shall take place outside the home of the father, between the mother and the supervisor.

8. The child’s time with the father in Order 5 shall be suspended if the father misses three (3) consecutive visits without any reasonable excuse.

9. The father may communicate with the child by forwarding to her letters and gifts on six (6) occasions each year.

10. For the purposes of the father’s provision of letters and gifts to the child:

(a) The mother shall in writing within 14 days (on the parenting app provided for in Order 16) provide the father with a nominated address for the receipt of such letters and gifts;

(b) The father shall send all letters and gifts to the address nominated by the mother;

(c) The mother shall do all such acts and things to ensure that the child receives such letters and gifts; and

(d) The mother shall be permitted to read any such letters to ensure that they do not contain any denigration of the mother or other members of her family, and in the event that they do, the mother is permitted to not pass on any such letters to the child.

Drug and alcohol testing

11. For a period of 12 months from these orders, the father shall submit to hair follicle drug analysis at the written request of the mother, and in relation to the same:

(a) Any request by the mother shall be made on the parenting app provided for in Order 16;

(b) The mother shall be permitted to request up to four (4) such tests;

(c) The father shall submit to such testing within 72 hours of any request being made;

(d) The cost of the testing shall be met solely by the father;

(e) The father shall provide the mother with written confirmation (on the parenting app provide for in Order 16) that he has submitted to testing forthwith upon doing so, with such written confirmation to include the details of the service provider utilised; and

(f) The father shall authorise any service provider to release any information and report about such testing directly to the mother and to the extent that it is necessary these orders shall stand as authority for that information and report to be released to the mother.

12. For a period of 12 months from these orders, the father is restrained from:

(a) Cutting his head hair to a length shorter than 4 centimetres or otherwise shaving or bleaching his hair; and/or

(b) Using any chemicals or treatments on his hair other than commercially available shampoo and/or conditioner.

13. In the event that the father returns a hair follicle test result that is positive for any illicit substances and/or the father does not comply with Orders 11 and 12, the father’s time spending with the child pursuant to Order 5 shall be suspended until such time that the father has produced two negative tests no less than one (1) month apart.

14. For a period of 12 months from these orders, the father shall submit to CDT testing at the written request of the mother, and in relation to the same:

(a) Any request by the mother shall be made on the parenting app provided for in Order 16;

(b) The mother shall be permitted to request up to four (4) such tests;

(c) The father shall submit to such testing within 24 hours of any request being made;

(d) The cost of the testing shall be met solely by the father;

(e) The father shall provide the mother with written confirmation (on the parenting app provide for in Order 16) that he has submitted to testing forthwith upon doing so, with such written confirmation to include the details of the service provider utilised; and

(f) The father shall authorise any service provider to release any information and report about such testing directly to the mother and to the extent that it is necessary these orders shall stand as authority for that information and report to be released to the mother.

Information about the child

15. The parties do all such things and sign all such documents as may be necessary to enable the father to directly obtain (and to the extent that it is necessary this order shall stand as authority):

(a) All reports, newsletters, photos and other information ordinarily provided to a parent from the child’s school; and

(b) Any information from the child’s treating medical practitioner, allied health care provider and/or specialist ordinarily provided to a parent.

Communication between the parents

16. The parties shall communicate with each other in relation to parenting arrangements for the child via a co-parenting app, and in relation to the same:

(a) The mother shall, within 14 days, from these orders nominate the parenting app that is to be used, with the same to be conveyed to the father in writing through his solicitors.

(b) Such communications are to be limited to the parenting arrangements for the child (including but not limited to those matters encompassed by these orders), unless otherwise initiated by the mother and/or in the case of an emergency; and

(c) Such communications are to be civil and non-derogatory.

Passport and international travel for the child

17. Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the relevant Minister may issue passports for the child X born 2016 upon the application of the mother of the child without further consultation with the father, the mother having sole parental responsibility pursuant to Order 3 herein to make such application as are necessary.

18. The child’s passport be held by the mother.

19. The child be entitled to travel overseas with the mother and this order constitutes authority for her to do so.

20. The mother is authorised to obtain any travel visa for the child that is necessary to enable her to travel overseas with the child, and this order constitutes authority for her to do so.

Injunctions

21. For the personal protection of the mother and/or the child, the father is restrained and an injunction is granted restraining the father from consuming alcohol and/or illicit substances in the period 48 hours prior to and during any time the child is in his care;

22. For the personal protection of each of the parties and/or the child, the parties are restrained and an injunction is granted restraining each of them from abusing or denigrating the other of them or members of their respective family, to or in the presence of the child, or permitting any other person to so do.

Discharge of Independent Children’s Lawyer

23. The appointment of the Independent Children’s Lawyer be discharged, subject to any appeal.

Miscellaneous

24. Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975, 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 to assist to and comply with an order, are set out in the document entitled ‘Parenting orders–obligations, consequences and who can help’ a copy of which is annexed to these orders.

25. Pursuant to s 62B of the Family Law Act 1975, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

26. The proceedings otherwise be dismissed as finalised.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, orders shall be made that provide for the child to continue to live with the mother and for the mother to have sole parental responsibility. Orders shall also be made for the child to spend time with the father on one occasion each month (12 occasions each year), with the same to be professionally supervised.BACKGROUND The uncontroversial history of the parties and their relationship about which I am satisfied is as follows:(a)The mother was born in 1985. At the time of trial she was 39 years of age. The mother is a qualified professional and she is presently employed earning approximately $260,000 per annum.(b)The father was born in 1985. At the time of trial he was 37 years of age. He is presently unemployed and has been for some four and a half years. He, however, has qualifications as a professional and, until his redundancy in mid-2019, was employed and earning between approximately $110,000 to $200,000 per annum.(c)The parties are of Country C ethnicity and cultural descent and they each identify strongly with their Country C culture, traditions and heritage. Whilst both are of the same faith, they have differing religious practices and beliefs.(d)The parties married in 2016. Their marriage was arranged by their respective parents. The arrangement involved the parties and their respective parents meeting prior to the parties themselves consenting to the marriage.(e)From the time of their marriage the parties lived with the father’s parents in their home at Suburb D.(f)The mother discovered that she was pregnant early in the marriage.(g)In the immediate lead up to the birth of the child, and some time in 2016, the mother moved back to the home of her parents to have the support of her mother in the lead up to the birth. The mother says this is the tradition in her culture. The father says this “tradition” was not one he was aware of. It is not necessary to resolve this dispute.(h)The mother was admitted to hospital in 2016 due to high blood pressure. Her labour was induced the following morning.(i)The child, X (“X”) was born in 2016. The father was present at the birth. Following her birth, the mother remained in hospital with X for approximately a week.(j)Upon her discharge from hospital, the mother returned to the home of her parents with X. The father visited the mother and X at the home of the maternal grandparents, and also stayed overnight on occasions.(k)The parties separated shortly thereafter on 25 February 2017.(l)The mother and X lived with the maternal grandparents until mid-2017 when they moved into a rental property at Suburb E. In mid-2018 the mother purchased her own home at Suburb F and she has lived with X in that home since that time. In approximately mid-2021 the maternal grandparents moved in with the mother and X, and they continue to reside together in the Suburb F home.(m)Throughout the post separation period the father has continued to live with the paternal grandparents at their Suburb D home.

Evidence

Evidence Before The Court

I have assessed the evidence in these proceedings and made findings throughout these reasons by applying this standard of proof.THE EVIDENCE Each of the parents filed a trial affidavit in the proceedings and they each gave oral evidence during the trial. The filed material before the Court was as follows:(a)A Family Report prepared by Dr G dated 28 February 2022 and annexed to an affidavit of the ICL filed on 8 August 2023;(b)The father’s Amended Response for Final Orders filed 21 August 2023;(c)The mother’s Amended Application for Final Orders filed 8 September 2023;(d)The mother’s Trial affidavit filed 7 March 2024;(e)The mother’s Financial Statement filed 7 March 2024;(f)An affidavit of the maternal grandmother, Ms H filed 7 March 2024;(g)An affidavit of the maternal grandfather Mr J filed 8 March 2024;(h)The trial affidavit of the father filed 16 April 2024;(i)The Financial Statement of the father filed 16 April 2024;(j)A further affidavit of the mother filed 8 May 2024;(k)The Outline of Case for the mother filed 8 May 2024;(l)The Outline of Case for the father filed 10 May 2024;(m)The Cost Notice of the father filed 10 May 2024;(n)The Outline of Case for the ICL filed 10 May 2024;(o)The Cost Notice of the mother filed 13 May 2024;(p)An affidavit from the father’s treating psychologist Ms K filed 11 May 2024, which was received over the objection of the mother; and(q)An affidavit from the paternal grandmother, Ms L filed on the first day of trial, 13 May 2024, which was also received over the objection of the mother. In addition to the oral evidence of the parents, the Court had the benefit of oral evidence from each of the maternal grandparents and the paternal grandmother, together with experts. I have had regard to the totality of the evidence placed before the Court during the trial together with the submissions made by counsel. Throughout these reasons I have identified various portions of the evidence which I considered to be significant in my deliberations. That does not however mean that I have ignored or overlooked that evidence which I have not mentioned. The Family Report A Family Report was prepared in the proceedings by Dr G on 28 February 2022 (“the Family Report”). The report was received into evidence annexed to an affidavit of the ICL, Mr Naidovski filed 8 August 2023. In addition to the observations made by, and the opinion proffered by, Dr G in the Family Report, during the course of the final hearing, and at the request of the Court, the parties made arrangements for X to attend upon Dr G for an appointment. Dr G’s observations from that appointment were conveyed during the course of her oral evidence. Dr G was cross examined by counsel for each of the parties and the ICL. The expertise of Dr G was not challenged, nor was the methodology of her assessment process. Equally, the observations recorded by Dr G in her report and conveyed in her oral evidence, were not disputed. I record from the outset that having considered Dr G’s evidence together with the totality of the evidence before the Court, Dr G’s opinions are accepted, and for the most part her recommendations are accepted.

Decision

Reasons for decision

I am satisfied that these messages were yet another example of the father’s coercive and controlling behaviour towards the mother, because I consider that I am able to infer that the messages were designed to:(a)Negatively influence third parties and mutual friends against the mother; and(b)Isolate Ms Q and Mr R from socialising with the mother and/or X.Conclusion as to family violence In light of the incidences that I have discussed, I am satisfied that the father has perpetrated family violence against the mother. That family violence has included the father’s attempts to isolate the mother from family and friends, overt denigration of the mother both directly to her but also to her family members and associates, efforts to damage the mother’s financial security and the use of threats and intimidation. I accept the mother’s evidence that all of the conduct perpetrated by the father towards her has had the effect of leaving her feeling fearful, harassed, threatened and intimidated. I am also satisfied that the father’s behaviours were focussed at placing maximum pressure on the mother so that she would relent to his demands generally, and in the post separation period regarding the parenting arrangements for X. I am satisfied that in those circumstances the father’s behaviour amounts to coercive and controlling behaviour. As I have earlier identified, I am satisfied that there is an appreciable risk that the father will continue to commit acts of family violence towards the mother in the future.Illicit drugs and Alcohol Turning to the mother’s concerns about the father’s use of alcohol and illicit substances. These issues are somewhat less easy to grasp. In part this is because the father denies that there are any concerns in this regard. Again, however despite these denials, during the course of his oral evidence the father admitted that in the period prior to the commencement of these proceedings:(a)He used marijuana on social occasions including at parties and barbeques;(b)He consumed an illicit drug on a number of social occasions (for the first time in 2013/2014, at his own bucks party, at a work event in either 2016 or 2017, on an occasion with the mother, and at other social events which he was unable to identify); and(c)That at the time he sent the text messages to the mother and maternal grandfather in late 2019, he was affected by alcohol. In his trial affidavit the father attempted to deflect attention from his use of illicit substances and alcohol, by directing attention to the mother and asserting:(a)The parties had consumed marijuana together overseas during their honeymoon; something the mother admits but says she is ashamed of having done, and which she asserts was the only occasion that she has used illicit substances; and(b)The mother would drink alcohol freely in the absence of her parents, but that her behaviour would change and she would abstain when they were present; and(c)The mother had used an illicit drug at a Christmas party in 2015 and at a wedding in 2016.

Ratio Decidendi

Legal Principle Established

When all of these matters are taken together, the Court is left with an inability to exclude the father’s illicit drug use and alcohol consumption as a risk factor to be taken into account when considering the parenting orders that would meet X’s best interests and keep her safe from harm.BEST INTEREST CONSIDERATIONS I have already considered several of the considerations set out in s 60CC of the Act earlier in these reasons. I therefore do not intend to repeat those matters in the discussion that follows. I also note that Dr G prepared her family report prior to the operation of the Family Law Amendment Act2023 (Cth). As a result, Dr G considered an expanded list of best interest factors to be taken into account by the Court pursuant to s 60CC of the Act to those which now apply. Despite the changes to the legislation, I have taken into account the totality of the matters considered by Dr G, which formed the basis of her opinions, as I consider that the same is encompassed by the requirement to consider “anything else that is relevant to the particular circumstances of the child”.What arrangements would promote the safety of the child and each person who has care of the child I have identified earlier in these reasons that there is a need to protect X from harm when spending time with the father (emotional and psychological) as a result of the family violence the father has perpetrated and continues to present as a risk of perpetrating in the future, together with the harm that would flow to X if the father was affected by drugs or alcohol when spending time with X. I have also identified that I accept the opinion of Dr G, that supervision of the father’s time spending with X would significantly ameliorate these risks of harm. I additionally consider that targeted injunctions and ongoing testing, coupled with supervision ameliorate the concerns about the father’s illicit drug use and alcohol consumption. Having come to these conclusions, it is apparent that in undertaking the evaluative exercise discussed in Isles, I do not accept the mother’s contention that the father presents an unacceptable risk of harm. Illustrative of the suitability of supervision is that it has been protective of X to date, and it has enabled X to develop a relationship with the father and the paternal family in a safe way. Whilst I accept that the success of this arrangement might suggest that it would be safe to move away from supervised time spending, for the reasons that I have discussed throughout these reasons, I do not consider that X would be safe and protected from harm and/or the risk of harm if there was to be unsupervised time spending. I am conscious that X is young, and that the imposition of a long-term supervision arrangement brings with it a number of challenges and difficulties, including but not limited to, supervision being an artificial environment, the possibility of X at some point questioning the need for supervision and the potential that this might undermine the time spending by making X, amongst other things, question her own safety and/or undermine X’s relationship with the mother whom she might come to challenge and resent over the need for supervision.