Giordano and Platt

[2018] FCCA 3815

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIORDANO & PLATT [2018] FCCA 3815

Catchwords:
FAMILY – Parenting – spend time with – interim orders - child has had limited contact with the father – family violence – concerns around parental capacity – no order for child to spend time with father.

Legislation:

Family Law Act 1975 (Cth) s.60CC

Applicant: MR GIORDANO

Respondent: MS PLATT

File Number: DNC 368 of 2018

Judgment of: Judge Young

Hearing date: 23 November 2018

Date of Last Submission: 23 November 2018

Delivered at: Darwin

Delivered on: 23 November 2018

REPRESENTATION

Counsel for the Applicant: Ms Srinivas

Solicitors for the Applicant: Northern Territory Legal Aid Commission

Counsel for the Respondent: Ms Gray

Solicitors for the Respondent: Grays Legal NT

ORDERS

1. That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the child [X] born …2011 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the child's interests.

2. That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

3. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and / or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

4. That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

5. That pursuant to s.11F of the Family Law Act 1975, the parties and the child [X] born …2011 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Darwin on 17 January 2019 at 9:00am with the parties to telephone the Case Coordinator Child Dispute Services on …to confirm their attendance.

   NOTING THAT as the child has spent limited time with the father, less than two weeks during 2017, the Family Consultant is to make an assessment as to whether it is appropriate to observe the child with the father.

6. That the matter is adjourned to 12 March 2019 at 10:00am for interim hearing at the Federal Circuit Court of Australia, Darwin.

IT IS NOTED that publication of this judgment under the pseudonym Giordano & Platt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 368 of 2018

MR GIORDANO

Applicant

And

MS PLATT

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application concerning a child [X] who is seven years old.  Her father has made an application that the child spend time with him.  The circumstances are unusual in that until December 2017 the child has spent no time with the father.  In about 2010 or 2011 the father was sentenced to more than three years of imprisonment as a result of an assault on the mother, an assault on police and various other offences following what appears to have been very excessive alcohol consumption and use of cannabis by the father.  As I have said, he was given a lengthy period of imprisonment.

3. He apparently discovered that the mother and the child had moved to Darwin some time in 2017 and in 2017 he decided to move to Darwin to see if he could re-establish a relationship or, rather, establish a relationship with his daughter.  He says, in fact, that he re-established a relationship with the mother.  The mother denies that. 

4. The father is presently a student at University.  He is undertaking a course. He has filed a report from a psychologist, Dr F, which says that he does not suffer from any mental illness but does confirm that he has battled with alcoholism.  The attempt at re-establishing a relationship with the child was short-lived because less than two weeks after the father re-met the mother and met the child for the first time, there was an altercation between the mother and the father that resulted in the mother seeking a domestic violence order and the father consenting to it, and while there is some dispute about what precisely happened, there is no real dispute that an unpleasant incident, at best, occurred in front of the child.

5. All of that gives rise to real concerns, in particular about the father and his parental capacity and insight. Obviously, there are other issues as well. The mother says that she is frightened of him and I accept that that is probably an issue. The child has not seen the father since December. In those circumstances, I think the issue that arises, in terms of section 60CC of the Family Law Act, is the need, first and foremost, to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. That clearly arises on the undisputed facts.

6. Secondly, if that consideration is properly answered, then the next consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents, in this case, the father.  I think those matters are at large at the moment and there will need to be a great deal more information available to the Court before the Court can begin to answer them and those are the essential questions to be answered in any parenting matter.  So I do not propose to make an interim order that the child spend time with the father supervised or otherwise and I am going to defer that question until there is further information available.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 19 December 2018