Golena and Golena - [2020] FCCA 860

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOLENA & GOLENA

[2020] FCCA 860

Catchwords:
FAMILY LAW – Parenting – Issue in dispute the time children aged 6 & 4 should spend with their father – where the father has been spending professionally supervised time with the children for two years – where the father proposes that the children commence spending unsupervised time with him – where the mother proposes an order for no time and limited communication – where the mother has concerns about the father’s drug use, alcohol use, mental health and perpetration of family violence – where the father has completed a Taking Responsibility course – whether the court can be satisfied that the risk of the children being exposed to family violence or to harm, neglect or inappropriate parenting arising from alcohol use, drug use or unmanaged mental health issues has abated – where the court cannot be so satisfied – where neither party sought a continuation of supervised time – where a no time outcome is regrettable but where no options were put to the court which would enable a relationship to continue and the children to be safe.

Legislation:

Family Law Act 1975 (Cth) ss.60CC, 102NA

Cases cited:

Mazorski & Albright (2008) 37 FamLR 518

Pitman & Bond (No. 2) [2008] FMCAfam 1316

Pitman & Bond [2014] FCCA 2126

Sedgley & Sedgley (1995) FLC 92-623

Applicant:

MS GOLENA

Respondent:

MR GOLENA

File Number:

NCC 3332 of 2017

Judgment of:

Judge Terry

Hearing dates:

13 & 14 February 2020

Date of Last Submission:

14 February 2020

Delivered at:

Newcastle

Delivered on:

22 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr Boyd

Solicitors appearing for the Applicant:

Adams & Associates

Counsel for the Respondent:

Mr Guyder

Solicitors appearing for the Respondent:

Joplin Lawyers

ORDERS

All previous Orders concerning X born in 2013 and Y born in 2016 (“the children”) are discharged.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
The children shall spend no time with the father.
The children shall have no communication with the father excepting that the mother shall maintain a postal address known to the father and the mother shall facilitate the children receiving from the father such cards, gifts or letters as the father may forward to the nominated postal address on no more than four (4) occasions per year.
The mother shall authorise the schools attended by the children to forward to the father at the father’s request (which can be made to the school by email or by telephone) copies of the children’s school reports and order forms for school photographs.
Pursuant to s.68B of the Family Law Act the father is restrained and an injunction is granted restraining him from approaching any premises at which the children live and any school or preschool attended by either of the children.

IT IS NOTED that publication of this judgment under the pseudonym Golena & Golena is approved pursuant to s.121(9)(g) of the Family…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Golena and Golena

Details

AGLC: Golena and Golena [2020] FCCA 860
Case: [2020] FCCA 860
Decision Date: 22 April 2020

CaseChat Overview and Summary

In the matter of Golena and Golena, heard by Judge Terry, the dispute concerned the parenting arrangements for two children, X (born 2013) and Y (born 2016). The court was required to determine the future parental responsibility, living arrangements, and contact arrangements for the children with their parents.

The court was tasked with considering the primary considerations under section 60CC(2) of the *Family Law Act*, namely the benefit of a meaningful relationship with both parents and the need to protect the children from harm. Additionally, the court had to assess the additional considerations under section 60CC(3), including the children's views, the nature of their relationships with each parent and other significant persons, and the extent to which each parent had fulfilled their parental obligations.

Judge Terry noted that X, aged just over five at the time of the family report interviews, expressed a preference for supervised contact with the father, indicating a concern that he might "get into trouble." Y, aged under three, did not participate in interviews. The court found the mother to be the children's primary attachment figure, with whom they shared a close relationship, as they did with their maternal grandparents. While the children related well to the father during supervised visits and had shown distress when visits were cancelled, the family report indicated the father's interactions, though warm, were inconsistently divided between the children and he appeared to reinforce favouritism towards X. The father had limited evidence of a relationship with his own extended family in relation to the children.

The court ordered that all previous parenting orders be discharged. The mother was granted sole parental responsibility, and the children were to live with her and spend no time with the father. Communication was limited to the father sending cards, gifts, or letters on no more than four occasions per year, and the mother was to facilitate the children receiving these. The mother was also to authorise schools to provide the father with school reports and photograph order forms upon his request. Furthermore, pursuant to section 68B of the *Family Law Act*, an injunction was granted restraining the father from approaching any premises where the children lived or any school or preschool they attended.

Orders

Orders of the court

All previous Orders concerning X born in 2013 and Y born in 2016 (“the children”) are discharged.

The mother shall have sole parental responsibility for the children.

The children shall live with the mother.

The children shall spend no time with the father.

The children shall have no communication with the father excepting that the mother shall maintain a postal address known to the father and the mother shall facilitate the children receiving from the father such cards, gifts or letters as the father may forward to the nominated postal address on no more than four (4) occasions per year.

The mother shall authorise the schools attended by the children to forward to the father at the father’s request (which can be made to the school by email or by telephone) copies of the children’s school reports and order forms for school photographs.

Pursuant to s.68B of the Family Law Act the father is restrained and an injunction is granted restraining him from approaching any premises at which the children live and any school or preschool attended by either of the children.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The primary considerations in s. 60CC (2) are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. S. 60CC (3) contains the additional considerations and as I often do I intend to start by making findings about the additional considerations and then return to the primary considerations. The first of the additional considerations is any views expressed by the children and the weight to be given to those views. X was just over 5 at the time of the family report interviews. She was not very forthcoming with the report writer who said as follows: When given options, X thought that she might like to see the father with Ms M (the H Contact Services supervisor) rather than at his house, and she thought this would be better because “he’ll get into trouble”. X said that she did not know why the father might get into trouble, before abruptly ending the conversation stating it was Y’s turn to talk now.[12][12] Family Report paragraph 103 Y was not quite 3 and did not participate in an interview. The children are now 6 and 4. Neither parent suggested at trial that they had a view about future parenting arrangements. I must consider the nature of the children’s relationship with each of their parents and any other person including a grandparent or other relatives of the children. The mother is the children’s primary attachment figure. They have a close relationship with her and with their maternal grandparents. This was evident at the family report interviews and was not in dispute at trial. The children have spent supervised time with the father since March 2018. They relate well to him at the visits and the mother said that when the father cancelled a series of visits in August-September 2019 X became distressed. The children interacted reasonably well with the father at the report interviews but the report writer said as follows: The father’s interactions with the children were warm and interactive. His manner and behaviour was calm and moderated, however his attention was inconsistently divided between the children and he did not appear to manage well Y’s attempt at inclusive play with X. Rather, the father appeared to reinforce X’s instructive behaviour, lending weight to the mother’s concern of the favouritism displayed towards her. [13][13] Family Report paragraph 117 The father has family in Town C and in the Town F area. He does not appear to have extensive contact with them although he does see them from time to time. His Nan lives in Town F and he said that the children had had some FaceTime communication with her. The father also has family in the Region N area but there was no evidence that they had a relationship with the children. I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to maintain the children.