Garafolo and Pullman

[2020] FamCA 130

FAMILY COURT OF AUSTRALIA

GARAFOLO & PULLMAN [2020] FamCA 130

FAMILY LAW – CHILDREN – Application by the mother for regular telephone contact – Father opposes telephone time due to concerns over disruption for the child – Independent Children’s Lawyer supports telephone contact in order to normalise the new living situation for the child – Application for telephone contact dismissed as not in the best interest of the child – parties agree for the child to spend certain birthdays with the mother – Independent Children’s Lawyer raises concerns over the mother not providing medical records of the child to the father – Mother ordered to provide medical records

APPLICANT: Ms Garafolo

RESPONDENT: Mr Pullman

INDEPENDENT CHILDREN’S LAWYER: Macgregor Solicitors

FILE NUMBER: MLC 6923 of 2017

DATE DELIVERED: 25 February 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: McEvoy J

HEARING DATE: 25 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harper

SOLICITOR FOR THE APPLICANT: MMH Lawyers

COUNSEL FOR THE RESPONDENT: Mr Farr

SOLICITOR FOR THE RESPONDENT: Rush & Hampshire

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Macgregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Macgregor Solicitors

Orders

IT IS ORDERED BY CONSENT THAT:

1. The child spend time with the mother on the birthday of her step-brother on … June from 3:30 pm - 7:30 pm and each year thereafter.

2. The child spend time with the mother on the maternal grandmother’s birthday on … May from 3:30 pm - 7:30 pm and each year thereafter.

IT IS ORDERED THAT:

1. To the extent that there needs to be any make up time by reason of orders 1 and 2 then that make up time occur at the election of the father.

2. The mother deliver the child’s immunisation records to the father within 48 hours.

3. The mother’s application in a case dated 17 February 2020 be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6923  of 2017

Ms Garafolo

Applicant

And

Mr Pullman

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application dated 17 February 2020 which has been filed by the mother. She seeks telephone time with the child at certain specified times. I am informed by the solicitor for the father that the application has been served on him, and that he is familiar with the terms of the application.  In support of the application the mother has sworn an affidavit on 17 February 2020, and I understand that this affidavit also has been served on the father.

2. The matter was listed today in the callover list before the Chief Justice, presumably because it remains in the Court pursuant to my orders of 9 January 2020. In these circumstances I indicated to the Chief Justice’s chambers that this application should be referred to me.  Having regard to the presence of the parties and their legal advisers in court today it seemed to me to be sensible in all the circumstances, notwithstanding the fact that the father had not had an opportunity to put on any affidavit material in response to the mother’s affidavit, to hear the matter today and to endeavour to resolve the matter promptly.

3. In those circumstances, noting the father’s application for an adjournment in order to prepare affidavit material, I invited the father to give whatever evidence he wished to give viva voce in response to the mother’s affidavit. The father accepted this invitation, gave evidence and was cross-examined.  The essence of the father’s evidence was that the child is not coping well in the aftermath of time with the mother, and that she is proving extremely difficult to settle after she has had time with the mother.  It was also the father’s observation that the mother was not appropriately supporting the child’s move to his primary care, and he mentioned a number of matters in support of his observation in this regard, including the fact that the mother had not provided to him the child’s birth certificate, immunisation records or the child’s Medicare number.

4. The father advanced the view that telephone time twice per week, as sought by the mother in her application, would be disruptive to the child at present, but that once things settled down and the child became more comfortable with her new living arrangements and at primary school, which she has just commenced, he would certainly be prepared to consider the child having telephone time with the mother at certain times. Submissions were made on behalf of the father in opposition to the mother having telephone time in the terms sought in the application.

5. I heard submissions from Mr Harper, the solicitor for the mother, in support of the application which is before me today.  The essence of those submissions was that the child has had a close relationship with her mother and that it is not unreasonable that she be given an opportunity to say goodnight on a couple of occasions a week to her mother and that this might assist her in coping with the changed living arrangements to which she is now subject having regard to my orders of 9 January 2020.

6. I also heard submissions in relation to this from the independent children’s lawyer, Ms Macgregor. Ms Macgregor’s position was that a short, perhaps 15 minute, call once per week might be appropriate and would assist in normalising the situation for this child. 

7. In the course of the ICL’s submissions I asked the mother’s solicitor to obtain some instructions from the mother as to whether she would be prepared to modify the application she was making such that it would be, in essence, an application for one call every other week on a Friday night, that is to say, the night before the weekend that the child would otherwise be spending with her father. Mr Harper obtained instructions from his client that her application should be amended in that form, and I proceed on the basis that that is the application that she is making today.

8. The father, through his solicitor, indicated that he still opposed an order even in those limited terms on the same basis that he opposed the original order sought, namely, that his experience was that it would be too disruptive at present, but that it would be something he would be prepared to contemplate in the future.  Having regard to the evidence of the mother in her affidavit of 17 February 2020,  and to the evidence of the father today, I am inclined to the view that, notwithstanding the submissions of the mother’s solicitor and the ICL, it would be undesirable and not in the best interests of the child to have even the limited contact by telephone that the mother seeks in her amended application.

9. I am concerned at the evidence that I have heard from the father that the integration of the child into his household is not being facilitated appropriately by the mother and I take the view, notwithstanding the submissions made by the ICL that there would be some possibility of normalisation if there were to be this telephone contact, that in all the circumstances it would be better if the father had a sustained opportunity to settle the child and get her into an appropriate school routine that was not interrupted by telephone contact with the mother.

10. I note that if the position improves, insofar as the child’s recovery from time with the mother every other weekend and on a Wednesday evening consistently with my orders of 9 January 2020, then it may be appropriate for the child to be able to have some telephone contact during the week with her mother and that this is something that the father would support.

11. I should note also that, insofar as the mother’s application seeks orders in relation to time with her stepbrother on his birthday and with her maternal grandmother on her birthday, that those matters have been resolved by consent between the parties.

12. I note also that the independent children’s lawyer and the father seek an order that the mother deliver the child’s immunisation records to the father forthwith.  As I indicated earlier, I am troubled by the fact that those records have not been provided and I will make an order in those terms also.

ORDERS DELIVERED

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 25 February 2020.

Associate: 

Date:  5 March 2020