Geraldes and Geraldes

[2017] FamCA 585

FAMILY COURT OF AUSTRALIA

GERALDES & GERALDES [2017] FamCA 585

FAMILY LAW – CHILDREN – PARENTING ORDERS – INTERIM – Where the father currently spends supervised time with the child, aged three, pursuant to interim Consent Orders – Where the father seeks orders that he spend unsupervised time with the child or, alternatively, that his time with the child be supervised by the paternal grandmother – Where the mother opposes the father’s application – Where there are allegations of family violence perpetrated by the father – Orders made for the child to spend time with the father in a graduating arrangement, initially supervised by a contact agency then supervised by the paternal grandmother.

APPLICANT: Mr Geraldes

RESPONDENT: Ms Geraldes

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: SYC 1802 of 2016

DATE DELIVERED: 8 August 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 1 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Clarke

SOLICITOR FOR THE APPLICANT: JS Pinto & Co

SOLICITOR FOR THE RESPONDENT: KD Holmes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

IT IS ORDERED BY CONSENT, PENDING FURTHER ORDER

1. That Mr Geraldes (the father) born … 1982 and Ms Geraldes (the mother) born … 1983 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child B (female) born … 2013 from the Commonwealth of Australia, AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further Order of the Court.

2. That as soon as practicable the Court notify the Australian Federal Police of these orders.

3. That the mother have exclusive occupation of the former matrimonial home at C Street, Suburb D.

4. That the mother be responsible for the mortgage payments on the loan and other outgoings of the former matrimonial home.

5. That the treatment of any payments made towards the former matrimonial home be determined by the trial judge at the final hearing.

6. That in the event that the mother is unable to meet the repayment of the mortgage over the former matrimonial home, or the mother receives any notice from the mortgagee in relation to any arrears of payments, the mother shall provide 28 days’ notice to the father of that event.

IT IS ORDERED, PENDING FURTHER ORDER

1. That Orders 2, 3 and 4 of the Orders made on 4 July 2016 be and are hereby discharged upon the commencement of time occurring in accordance with Order 8(a) herein.

2. That the child B born … 2013 (“the child”) spend time with the father as agreed in writing between the parents and failing agreement as follows:

   (a)For 6 consecutive visits, each Saturday from 12 pm to 4 pm with such time to be supervised by N Group and the first visit shall occur at E Play Centre at Suburb F and the following visits at an alternate public location as agreed between N Group and the parents, and the father shall ensure that Ms G Geraldes (“the paternal grandmother”) be present at the visits, and the associated costs of N Group shall be shared equally by the parents;

   (b)At the conclusion of Order 8(a) and for a period of 3 months, each Saturday from 12 pm to 4 pm with such time to be supervised by the paternal grandmother; and

   (c)At the conclusion of Order 8(b), each Saturday from 12 pm to 6 pm with such time to be supervised by the paternal grandmother.

3. That for the purpose of changeover in accordance with Order 8(a), the mother or her nominee shall deliver the child to E Play Centre at Suburb F or the public location where she will spend time with the father and shall collect the child at the conclusion of the visit.

4. That for the purpose of changeover in accordance with Orders 8(b) and 8(c), the father or his nominee shall collect the child from the mother at her residence at the commencement of the child’s time and return the child to the mother at her residence at the conclusion of the time.

5. That the parties within 7 days of these Orders contact Uniting Counselling and Mediation to enrol in and attend the Keeping Contact Program as recommended by the Family Consultant Mr H and they shall do all things to comply with all requests, recommendations and referrals of that service and its employees and attend upon that service and its employees as requested and directed and ensure that the child also attends as directed by that service and its employees.

6. That within 7 days the parties shall contact N Group to engage their services and enrol in and arrange for time to occur forthwith in accordance with Order 7(a) and the parties shall comply with all requests and directions of that service and its employees.

7. That on any occasion when the father travels in a motor vehicle with the child, he ensures that the child is placed in an approved child restraint. 

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 Geraldes & Geraldes 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 SYDNEY

FILE NUMBER: SYC 1802 of 2016

Mr Geraldes

Applicant

And

Ms Geraldes

Respondent

REASONS FOR JUDGMENT

1. Mr Geraldes (“the father”) and Ms Geraldes (“the mother”) are the parents of B who was born in 2013 (“the child”). They are presently engaged in a dispute about the parenting of the child and about property settlement.

2. The father filed an Application in a Case on 20 March 2017 seeking to extend the time he spends with the child. That application is opposed by the mother. In addition, the father asks the Court to order the sale of the house in which the mother and the child live. That aspect of the application has been resolved by consent.

3. In August 2015, when the parents were still living together, the father had a serious accident which resulted in hospitalisation. He was in a coma for six weeks and suffered a traumatic brain injury.

4. The parents separated on 29 November 2015 after the mother made a complaint to the police which resulted in an application for an Apprehended Domestic Violence Order (“ADVO”). An ADVO was made, on an interim basis, for the protection of the mother on 3 December 2015.

5. On 30 March 2016, the application for an ADVO was heard and dismissed.

6. In mid-2016, the father’s work licence was re-instated.

7. From the time of the separation, the child did not spend time with her father until July 2016.

8. On 4 July 2016, Orders were made by consent providing for the child to spend time with her father each Wednesday from 10 am until 12 noon at a play centre, supervised by a friend of the mother. It is common ground that the mother also attended on each occasion.

9. The father returned to work on 10 October 2016.

10. On 20 March 2017, the father filed an Application in a Case seeking an extension of the time that the child spends with him. He sought unsupervised time every Wednesday from 2 pm until 6 pm and each alternate weekend from Friday evening until Sunday evening. In the alternate, the father sought that the time he spends with the child be supervised by his mother, the paternal grandmother. The father proposed that he would collect the child from the mother at the commencement of the time and return her to the mother.

11. The mother did not file a response to that application but her position is that the time the child spends with the father should continue to be supervised by a professional supervisor. She opposed any supervision by the paternal grandmother and proposed that she deliver and collect the child for each visit.

12. The Court was assisted by a report from a Family Consultant dated 19 October 2016, following a Child Responsive Program interview, and by an Independent Children’s Lawyer (“ICL”) who was appointed for the child.

13. The father relied on two affidavits sworn by himself, the last sworn the day before the hearing, and an affidavit sworn by his mother.

14. The mother relied on two affidavits sworn by herself, the last sworn the day before the hearing.

15. The ICL tendered a Minute of Orders sought at the commencement of the hearing. The father, through counsel, indicated that he consented to orders in the terms sought by the ICL.

16. The matter is determined on an interim basis and without the opportunity to test those areas of the evidence which are in issue. However, it was not submitted in the mother’s case that the evidence of the Family Consultant was unreliable.

THE EVIDENCE OF THE FAMILY CONSULTANT

1. The Family Consultant interviewed the family in October 2016. In her report she stated:

   [The child], aged two years and 11 months, presented as being an outgoing, lively, verbal and enthusiastic young child. The parents reported that the child is a happy child who is achieving her milestones. She is currently being toilet trained. [The child] does not attend childcare and [the mother] does not currently plan for her to do so. She enjoyed the activities in the childcare room. [The child] was happy to be left in the childcare with either her mother or her father or maternal relative. The child regularly asked where her father was when he was not in the room and appeared to be very excited when both parents were in the room together. She held onto both of her parents and said that she wanted them both to stay.

   Observations of [the child] with her father indicated that they have a warm, relaxed and affectionate relationship. During the observation, [the father] appeared to be appropriately protective and aware as a parent and provided guidance for the child for example, when using the craft scissors and putting the toys away. The interactions between the child and [the father] were playful, comfortable and clearly enjoyed by both.

2. The Family Consultant also observed that the child had a close and warm relationship with her mother. The Family Consultant reported:

   Initially, [the mother] was very concerned and appeared to be highly protective and anxious about leaving [the child] in the childcare room. She also appeared anxious about [the father] being left in the childcare room with [the child] but accepted this when it was explained that the childcare worker would be present. [The father], [the mother] or a maternal relative were with [the child] for the entire period she was in the childcare room. [the child] appeared to enjoy the time she spent in the childcare room with her parents.

3. The Family Consultant noted the risk factors for the child as family violence, mental health, drugs and alcohol and the risk of abduction.

4. In relation to family violence, the mother told the Family Consultant that the ADVO had been taken out because she was scared of the father due to his anger at the time. The mother reported that the father was short tempered and had difficulty managing his anger. She alleged that the father was controlling, locked her in the bedroom on two occasions and pinned her against the wall on a few occasions. She said that the father would “snap” and be verbally abusive towards her. The mother alleged that the father had made threats that he could “make her disappear” and said that they had argued about his gambling and that he had become impatient with the child, shouting at her at times.

5. The father denied having perpetrated any family violence, although he admitted that there were arguments between him and the mother, especially about money and his long working hours.

6. The mother’s allegations in relation to family violence were clearly not accepted by the Local Court and the application for an ADVO was dismissed on 30 March 2016 following a hearing.

7. In relation to the father’s mental health, the father told the Family Consultant that he had seen a psychologist after his accident and had continued to receive professional help. The mother told the Family Consultant that she is anxious as a result of worrying about the child and because of the alleged past abusive treatment of her by the father, and that she is seeing a counsellor from Victims Services on a weekly basis.

8. The mother alleged that the father used drugs and alcohol. The father conceded that he had used cocaine in the past but denied any current use of any drugs or alcohol.

9. The mother alleged that the father had, in the past, made threats that he would take the child to Europe. She conceded that, since separation, no such threat had been made.

10. The father expressed concern that the child has not had the opportunity to spend time with the extended paternal family. He proposed to the Family Consultant that his mother could provide supervision if the Court considered supervision to be necessary. The mother questioned whether the paternal grandmother could be trusted to supervise the time that the child spent with her father and told the Family Consultant that she did not believe that the paternal grandmother would prioritise the child’s needs.

11. The Family Consultant, in her evaluation, reported:

    [The child] is a young child who appears to have warm relationships with both her mother and her father. While [the mother] is a very protective and caring parent, [the child] might benefit from learning to spend small amounts of time without her mother being present when she is spending time with her father. [The child] did not present as anxious or worried when spending time with her father without her mother being present during the observations in the Court.

    [The child’s] young age is also (sic) time in her development when children are forging important early relationships. Despite the limited time that [the child] has spent with her father, she appears to have a warm and affectionate relationship with him and to enjoy her time with him. Despite [the mother’s] anxiety about leaving [the child], she is facilitating the current time for [the child] to spend time with [the father] on a consistent basis. [The child] will most likely benefit from being able to spend a little more time with [the father] in order to consolidate their relationship, if the Court finds that it is safe for her to do so. Considering that the impact of [the father’s] injuries on his parental capacity are unclear and, given the strength of [the mother’s] concerns about leaving [the child] and her having unsupervised time, it may be to [the child’s] benefit that she spends time with [the father] at a contact centre in order to ensure safety while having the opportunity of spending regular and increasing amounts of time with her father.

THE ICL’S PROPOSALS

1. At the commencement of the hearing the ICL handed up a Minute of Orders which proposed a graduated regime of time for the child with her father, in summary, on the following basis:

   a)For six consecutive visits each Saturday from 12 pm to 4 pm supervised by N Group and attended by the paternal grandmother;

   b)For a period of three months each Saturday from 12 pm to 4 pm supervised by the paternal grandmother; and

   c)At the conclusion of that period an order that the child spend time with the father from 12 pm to 6 pm each Saturday supervised by the paternal grandmother.

2. The ICL proposed that the father or his nominee collect the child from the mother’s residence and return her at the conclusion of the time. The ICL also sought an order that the parties contact United Counselling and Mediation to enrol in and attend the “Keeping Contact Program” as recommended by the Family Consultant.

CONSIDERATION

1. It is not in dispute that the child will benefit from having a close and loving relationship with both of her parents and her extended maternal and paternal families.

2. Although the mother has raised the issue of family violence, I am conscious that those allegations have been the subject of a defended hearing and the application for an ADVO was dismissed.

3. The child’s views have not been canvassed due to her age. She is not yet four years old.

4. The child’s primary attachment is to her mother with whom, according to the Family Consultant, she has a close, warm relationship. The child was also observed to have warm, relaxed and affectionate relationship with her father. She has not had the opportunity to have a continuing relationship with her paternal family, particularly with her paternal grandmother and her cousins.

5. The father has not been allowed the opportunity to spend time with the child except in accordance with the Consent Orders made on 4 July 2016. It is unfortunate that the mother chose to attend those visits and the child has not been allowed to develop her relationship with her father independently of her mother. On the mother’s own evidence of the supervised visits, she has intervened in the visits.   

6. There is no evidence that the father has been permitted by the mother to participate in any decision making in relation to the child or to communicate with the child outside the prescribed supervised visits.

7. It is the mother’s case that the child will be anxious if she is separated from her mother, even for the short periods proposed by the ICL. The observations of the Family Consultant suggest that the child will separate easily from her mother and will enjoy the time with her father. The proposal of the ICL to involve the paternal grandmother in the first six supervised visits should be sufficient to allow the child to develop a comfortable familiarity with her paternal grandmother.

8. The proposal also has the advantage of reports being available from the supervisors in relation to those visits.

9. The parents live in relative proximity and there is no real practical difficulty in the child travelling between them.

10. The mother’s insistence of paid professional supervision would impose an expense on the father that can be avoided if other supervision can be provided.

11. The crux of the mother’s case is that the father and the paternal grandmother are not capable of providing for the child’s needs.

12. The paternal grandmother swore an affidavit in the proceedings setting out her willingness and ability to provide supervision for the child. She deposed:

    I offer to my son, the applicant, my assistance and support in any way the Court deems necessary to ensure that my granddaughter is able to spend time with and build relationships with her paternal family. I also acknowledge the importance of [the child’s] relationship with her maternal family and would not engage in any form of behaviour that would undermine that relationship. I am a family orientated person and I believe it is important that a child should know and be a part of both their maternal and paternal extended family.

13. The paternal grandmother gave a written undertaking to the Court in relation to supervision in the following terms:

    1.I, … the paternal grandmother will to (sic) supervise [B], born … 2013, (“[the child]”) time with her father …

    2.I am aware of the current Applications before the Court in relation to the child.

    3.I am aware of the allegations raised by the mother … in relation to the father.

    4.During the time that the father spends with the child and in accordance with any Orders that require supervision I will ensure that the child is not left alone with the father and that I will be present at all times during that contact period including during handover of [the child].

    5.In the event that anything occurs which causes me concern for [the child’s] safety and wellbeing I will cease the contact and contact the mother to make arrangements for immediate collection of [the child] and will ensure her safety at all times.

1. Prior to signing the undertaking, the paternal grandmother spoke with the ICL. Counsel for the father explained the nature of the undertaking and the obligations which were created by giving the undertaking to the paternal grandmother and I am satisfied that she understands the seriousness and gravity of the undertaking which she gave.

2. The mother swore an affidavit on 31 July 2017 setting out the basis of her opposition to the paternal grandmother as a supervisor. Put simply, she affirmed her belief, as communicated to the Family Consultant, that the paternal grandmother would put her son’s (the father’s) interest above the child’s interests. The mother detailed interactions between herself and the paternal grandmother where, if her evidence were accepted, the paternal grandmother had spoken unkindly to the mother. However, the mother did not suggest in her affidavit that there had ever been an instance where the paternal grandmother had not cared properly for the child, or had put the child in any danger.

3. The father relied upon a report from Dr J, a rehabilitation consultant with the Brain Injury Rehabilitation Service at K Hospital. In the report dated 27 July 2016, Dr J stated:

   [The father] has made a good cognitive recovery and since my first review has demonstrated mastery of fatigue management techniques to optimise his functioning day to day, and is now independent in his daily activities without the need for care. [The father’s] mother has provided consistent support at my reviews and reports that she would continue to support [the father] during access visits with his daughter. Based on [the father’s] reporting he is currently experiencing high levels of stress, anxiety, and sadness as a direct result of the lack of access to his daughter, and this impacts on his motivation for his exercise program. I would expect that contact with his daughter would have a positive impact on [the father’s] mood and general wellbeing.

   Overall [the father] has made a good recovery from his extremely severe traumatic brain injury. I would expect him to continue to make further gains with physical fitness and endurance with ongoing therapy and in the long term I would expect him to be able to return to his premorbid occupation.

4. The father also relied upon a report from L Services dated 28 June 2016. The author of the report was an occupational therapist. She stated:

   [The father] was referred to [L Services] for a community‑based Occupational Therapy program to maximise his functional recovery and resumption of his normal life roles and routines. He has progressed well through his rehabilitation program and has achieved all goals set to date. [The father] no longer requires ongoing occupational therapy intervention. He has achieved a return to driving without restrictions, is well integrated into his community and is independent with all ADL and IADL routines, and has a plan for his graded return to work. [The father] no longer has an injury related care need. He is able to maintain involvement in prescribed rehabilitation routines without external support and cuing.

5. The report continued:

   [The father] has been medically cleared to return to work on a graded basis. He has been cleared to work a full 8-hour shift … as per his pre-injury schedule (4pm-12am), however recommendations have been outlined to commence 3 days per week and gradually build to full time days and hours. All information regarding the parameters of his graded return to work have already been communicated to [M Ltd] and the assessing medical team. Therefore, ongoing follow up and liaison regarding his return to work can be managed through case management services.

6. I am satisfied that the father and the paternal grandmother are capable of caring for the child and will do so.

7. Both of these parents love the child and want what is best for her. It is understandable that the mother is anxious and protective of the child but I accept the evidence of the Family Consultant that the child will benefit from spending small amounts of time away from her mother. I also accept that the child will benefit from the opportunity to spend time with her father in a more relaxed and informal setting than the supervised play centre. In the home of her paternal grandmother, she will be able to be gradually introduced to her extended paternal family including her cousins. I have no doubt that the atmosphere will be more relaxed for the child and for the father than the current arrangement where the mother is present.

8. I accept the evidence of the Family Consultant that the child needs to spend time with her father in order to consolidate their relationship.

9. Orders will be made in accordance with the proposal of the ICL.

TRAVEL

1. The mother proposes that she will deliver and collect the child. She complains that the father does not always use an approved child safety restraint.

2. The father will consent to an order requiring him to do so.

3. In support of his proposal that he be responsible for the pick-up and delivery, he relied upon an affidavit sworn by him on 31 July 2017, in addition to the affidavit sworn by him on 17 March 2017.

4. The father deposed that on 8 August 2016, he caused a letter to be written to the mother asking if he could spend time with the child on his birthday, which was a Wednesday when he would normally have had time with the child. The father proposed that the time be spent at a wildlife park and with the letter enclosed a brochure setting out the attractions available at the park. The mother’s solicitor responded in words to the effect:

   We are instructed that rain and thunderstorms are predicted for next Wednesday, 24 August 2016.

   Our client proposes that the child’s supervised time occur on Tuesday, 23 August 2016 instead of Wednesday, 24 August 2016 for 3 hours, if your client wishes for time to occur at [the wildlife park].

5. The father deposed that he was due to spend time with the child on 10 May 2017 but this was not suitable to the mother so he agreed to spend time with the child on 11 May 2017. The father fell ill on that day and the mother refused to reschedule.

6. I note that the mother is not in employment.

7. The father deposed that the following week he was due to spend time with the child on 18 May 2017, as 17 May 2017 was again not suitable to the mother, but the mother’s proposed supervisor was ill and the mother cancelled the time with the child and did not reschedule the visit.

8. The father deposed that on 7 June 2017, the mother was not feeling well and cancelled his time with the child but did not reschedule another visit.

9. The father deposed that on 21 June 2017, he was advised that the child was not well and the mother cancelled the visit.

10. On Monday 26 June 2017, he received a message to the effect that the scheduled Wednesday visit did not suit the mother. The mother offered the father time on Monday 26 June 2017 and he was obliged to ask for time off work so that he could see the child.

11. On Monday 3 July 2017, the father received a text from the mother to say that Wednesday was not suitable and that he could see the child on Monday. He again was required to ask for time off work.

12. The father agreed to see the child, to meet the mother’s convenience, on Tuesday 18 July 2017. He was obliged to take time off work to do so. The night before, he received a text from the mother to the effect that he could not see the child because her friend who was to supervise the visit had “something on” and could not supervise.

13. The father deposed:

    The above is just a small illustration over a two month period of the problems I have had with the Respondent just to spend a couple of hours with my daughter [the child] each week. The current interim Orders which were only suppose to be temporary (sic). I agreed to those interim orders on the advice of my previous Counsel as I believed these would be reviewed once [the child] got use (sic) to spending time with me. I have asked the Respondent to please review the interim orders and she continuously says “NO”.

14. On behalf of the father it was submitted that it is more likely that he will spend time with the child if the mother does not have control of delivering her at the beginning of their time together. I accept that submission.

15. It is appropriate that the mother deliver the child to the six visits supervised by N Group and that she collect the child at the end of the visit. Once those six visits have been concluded, the father will collect and return the child.

WATCH LIST

1. The parties agree that an order should be made placing the child on the Airport Watch List.

KEEPING CONTACT PROGRAM

1. The ICL proposed that both parents complete the Keeping Contact Program as recommended by the Family Consultant. The mother did not consent but no submissions were addressed to that issue by her solicitor. I accept that the completion of the program might assist both of the parents to enable the child to move between their respective households without excessive anxiety.

2. Orders will be made for them both to attend.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 8 August 2017.

Associate:

Date:  8/8/2017