Gonzales & Gonzales
[2023] FedCFamC1F 406
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gonzales & Gonzales [2023] FedCFamC1F 406
File number(s): BRC 5595 of 2020 Judgment of: SCHONELL J Date of judgment: 22 May 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the matter was listed for final hearing – Where the children currently live with the paternal aunt and uncle – Where there are issues of alcohol abuse and illicit drug use – Where the paternal aunt and uncle withdrew from the proceedings – Where the father subsequently discontinued proceedings after it was discovered that there is a warrant out for his arrest – Where the Department for Child Protection (“the Department”) was requested to intervene – Where the Department sought an adjournment to make enquiries – Where the paternal aunt and uncle joined the proceedings again – Where the matter is unable to proceed – Matter adjourned. Legislation: Family Law Act 1975 (Cth) s 91B Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 22 May 2023 Place: Sydney Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: Hennikers Solicitors The First Respondent: Has discontinued proceedings The Second Respondent: Litigant in person The Third Respondent: Litigant in person Solicitor for the Intervener: Crown Solicitor’s Office Counsel for the Independent Children’s Lawyer: Ms Shea Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
BRC 5595 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GONZALES
Applicant
AND: MR GONZALES
First Respondent
MS FLORES
Second Respondent
MR AQUIRRE
Third Respondent
DEPARTMENT FOR CHILD PROTECTION SOUTH AUSTRALIA
Intervener
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
22 MAY 2023
THE COURT ORDERS THAT:
1.The hearing of this matter be adjourned to 21 July 2023 for mention.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gonzales & Gonzales has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
These are final parenting proceedings that are listed for five days commencing today. They concern the living arrangements for two children aged 7 and 5.
The parties to the proceedings were until a fortnight ago the parents of the children, and the father’s sister and her partner.
As a consequence of recent developments in the proceedings, the hearing has to be adjourned. I set out below my reasons for doing so.
BACKGROUND
The parents of the children were in a relationship between 2006 and 2018, marrying in 2015. Each of them had a child of a prior relationship.
The parties’ relationship was tumultuous. There are allegations of alcohol abuse and the use of illicit drugs. The mother contends the father was the perpetrator of family violence, including physical assaults and emotional abuse. The father asserts that the mother abused alcohol and used drugs at times including during pregnancy.
During the course of the parties’ relationship, the mother’s daughter, W, a child of a previous relationship, lived with the parties.
Upon the separation of the parties, the children remained living in the father’s care and, according to the mother, the father prevented her from spending time with the children.
In May 2020, the mother commenced proceedings seeking orders for the children to be placed in her care. At that stage, the mother lived in Queensland, and the father and children were in Sydney. The father in an affidavit filed 8 May 2023 says the following:
63. On 26 August 2020, [Ms Gonzales] filed recovery orders and these orders were granted by Her Honour Judge Purdon Sully. Unfortunately, the strict border restrictions meant that travel between states was near impossible. At this time breaches of closures could result in fines of up to $10,000.00 for crossing borders.
64. This was a very difficult time as I had no home to return to, no business to earn any form of revenue and I was the sole carer for two young children under three years of age.
Disclosure to the Department of Justice
65. When the orders were made by her Honour Judge Purdon Sully, I was under an immense amount of pressure as I was so stressed about the border closures. The orders sought for the boys to be returned and whilst I was trying to comply with the orders I was encountering hurdles such as the fact that no one was allowed to cross the New South Wales border at the time. This meant that it made it impossible for me to get the boys back to Queensland.
66. During this time, my sons were attending day care in [Suburb B] and I maintained the routines they were accustomed to, including their eating and sleeping schedule. I was working as hard as I could to sustain our living and I was on a spiritual path of redemption.
67. It was during this time that I felt a compelling urge to disclose behaviour I had witnessed, (but not participated in) between my ex wife [Ms Gonzales] and her daughter [W] while still a minor under the age of six. Being so involved with the daily care of my young children awakened a protective instinct inside of me. I am a religious man with a conscience and felt that I had to disclose certain facts to the Department.
68. I also took this opportunity to disclose and to take responsibility for the actions that occurred post [Ms Gonzales] leaving the family home in 2018.
69. I was aware at the time of the disclosure that I was exposing myself and nevertheless I would always put my sons’ well being above my own. With respect to making such a disclosure, I knew I needed to correct the course of life that I was on. I decided to phone the Department of Communities and Justice in Queensland and inform them that both [Ms Gonzales] and I had participated in conduct that lead to the sexual abuse of [W] at the time that she was residing with us. This phone call occurred around a week after the return orders were granted.
70. Approximately one day after I made the disclosures to the Department of Communities and Justice in Queensland, I was contacted by the police from either NSW or OLD I can not recall which state they were in at the time they made the call. I received a call from a female officer who asked if [W] was in my care. I informed the police that [W] was not in my care and that was the only contact I have had from the police regarding the matter. I have had no further request for interviews from the police nor have I had any contact from the police in regard to the charges.
71. I do not know if [W] has been questioned by the police nor have I been told that the investigation has been closed or terminated. It has been in excess of 2 years since I made the disclosures to the police and neither [Ms Gonzales] or I have been charged.
72. I further note that the family report was released to the police in Queensland 12 months ago and there has been no further contact by the New South Wales Police or the Queensland police regarding the charges.
73. At the same time I made the disclosures to the department, I told both [Ms Flores] and [Mr Aquirre] and [Ms C] about what I had told the department in Queensland and when [Ms Flores] and [Mr Aquirre] found out about the disclosure that I had made they were disappointed in me and disgusted in both [Ms Gonzales] and I. [Ms Flores] and [Mr Aquirre] never condoned our behaviour and they informed me that they would be contacting a solicitor to get advice about taking the care of the boys as they did not want either myself or [Ms Gonzales] to have care of the boys until the there was appropriate intervention by the courts.
74. [Ms Flores] and [Mr Aquirre] instructed [D Lawyers] and an application was brought on an urgent basis for them to be the sole carers of the boys and for [Ms Gonzales] to have supervised time with the boys.
On 17 September 2020, orders were made placing the children in the care of the father’s sister and her partner, the second and third respondents. Orders were also made for the mother and father to spend supervised time with the children.
In November 2021, the Court ordered the preparation of a Family Report. On 28 January 2022, a Family Report was prepared by Ms E. Ms E records the following in that report:
8. After the business folded, [Ms Gonzales], [Mr Gonzales] and [W] moved to [Suburb F]. [Ms Gonzales] said that [Mr Gonzales] was violent toward her when they lived there. She said that he dragged her by the hair and threw her across a room. [Mr Gonzales] said that, when they lived in [ Suburb F], both he and [Ms Gonzales] sexually abused [W] but that [Ms Gonzales] was the instigator and main abuser. [Ms Gonzales] said that she and [Mr Gonzales] separated many times, including when they lived together in [Suburb F]. She denies ever having sexually abused [W]. [Mr Gonzales] and [Ms Gonzales] reunited after about six months.
…
11. [Ms Gonzales] said that she and [Mr Gonzales] argued about his drinking and him not working. She said that [Mr Gonzales] threw her out of their home in 2018 but that she visited the house daily to breast feed [Y]. [W] remained in the home with [Mr Gonzales]. [W] was interviewed by a Child Abuse unit in 2020. She denied having been sexually abused by her mother but did disclose sexual abuse by her stepfather [[Mr Gonzales]]. NSW police transferred the matter to Queensland. Queensland police advised that the matter is ongoing. They have asked for a copy of this report.
At the time of the report, Ms E records the then living arrangements of the parties and the children to be as follows:
16. The subject children live with their paternal aunt [[Ms Flores]], her partner [[Mr Aquirre]] and their son [[G], aged 14 years] and [Ms Flores’s] older children [[Mr H] 29 and [Mr J] 25] in [Suburb K], Sydney. [Ms Gonzales] lives in [M Town] with her partner and [W]. [Mr Gonzales] lives on his own on a houseboat in [Suburb L].
17. The children speak to their mother by phone/facetime twice per week and spend face to face supervised time with their father three times per week.
She records the proposals of the parties in following terms:
22. [Ms Gonzales] proposes that she have sole parental responsibility for the children and that the children live with her, spending time with [Mr Gonzales] under supervision. She said that she would agree to the children spending time with [Ms Flores] and [Mr Aquirre] in school holidays.
23. [Mr Gonzales] proposes that he and his sister [[Ms Flores]] share parental responsibility for the children. He proposes that the children live with him near the [Suburb N] area and continue to spend time with [Ms Flores] and her family and any time that they spend with [Ms Gonzales] be supervised.
24. [Ms Flores] and [Mr Aquirre] propose that they have parental responsibility for the children and the children live with them. They said that if the Court finds that the allegations about sexual abuse are true, the children should spend no time with [Ms Gonzales] as they feel that [Ms Gonzales] undermines the children’s placement.
Under the heading of “evaluation”, she records the following:
223. There has been a great deal of focus on allegations of sexual abuse in this matter. It is the single expert’s opinion that, some of that abuse has been substantiated through this process by way of admissions made by [Mr Gonzales] during interview. Allegations about sexual abuse of [W] by [Ms Gonzales] have not been substantiated. Although [W] is not a subject child, her treatment in the care of [Ms Gonzales] and [Mr Gonzales] is relevant. Queensland police advise that the sexual abuse allegations involving [W] are still under investigation.
224. There have been no allegations made about either of the subject children having been sexually abused. [Ms Flores] appears hypervigilant about that possibility, but the single expert has found no evidence to suggest that has happened.
…
230. The benefit of the children having a meaningful relationship with both of their parents and carers;
There are three options for [X] and [Y’s] future care [with their mother, or their father, or their paternal aunt and uncle]. It will be important for [X] and [Y] to understand their family of origin, but who they live with will significantly impact the sort of relationships they will have with each party.
…
240. Any recommendation as to the live with and spend time with arrangements which may be appropriate.
It is recommended that [X] and [Y] continue to live with [Ms Flores] and [Mr Aquirre].
…
It is recommended that [Ms Gonzales] and [Mr Gonzales] participate in a mental health assessment and that any treatment plan identified through that process be included in orders in relation to spend time arrangements.
It is important that the purpose of spend time arrangements is clear. Currently [Mr Gonzales] is spending time with the children three times per week and [Ms Gonzales] is supposed to be speaking to the children twice per week. This sort of arrangement is appropriate for an interim, while live with arrangements are being assessed but is onerous for the carer and confusing for the children if ongoing. If the Court places [X] and [Y] with [Ms Flores] and [Mr Aquirre] permanently, the spend time arrangements will be for the purpose of identity and maintaining links to siblings. As a guide,
monthly phone calls and quarterly or biannual face to face visits will assist [Ms Flores] and [Mr Aquirre] to focus on their family responsibilities and allow the children time to immerse in their surroundings without the instability of the question of whether they are staying or not. This arrangement should be the same for [Ms Gonzales] and [Mr Gonzales].
…
241. Any other matter the Single Expert considers relevant.
The single expert is concerned about the contents of this report being made available to the parties prior to the final hearing. There is personal information about [W] that may need to be redacted and information that, if made available, may interfere with criminal proceedings.
As noted previously, the single expert is concerned that [Ms Flores] and [Mr Aquirre] are not aware of the potential risk that [Mr Gonzales] poses to the subject children or their friends and the children of their own friends. There appears to be a culture within the paternal family that excuses or turns a blind eye to inappropriate male behaviour,
and places blame on women. [Ms Flores] and [Mr Aquirre] appear to be unaware of the extent of the abuse that [Mr Gonzales] is responsible for. They appear committed to the children’s safety and may be more careful if they are made aware of the facts once the facts are determined.
As a consequence of the recommendations of Ms E, psychological assessments were directed to be undertaken in relation to both parents.
A report was prepared in relation to the father on 12 July 2022. The expert in that report opined as follows:
15.4.1 [Mr Gonzales] presented as a genuine caring person, who admitted shame and·
regret over previous sexual abuse of [W], his lifestyle (drug and alcohol abuse over years), and the loss of care of his children.
…
15.4.4 [Mr Gonzales] appears strongly attached to his children and is now focussed on re-establishing his relationship with them, as evident in his current abstinence from drugs and alcohol and his financial support of them while in care.
…
15.4.6 [Ms E] recommended that the children remain in the care of [Ms Flores] and her partner [Mr Aquirre] with both parents having monthly phone calls and quarterly or bi-annual face-to-face supervised visits to limit confusion ad disruption for the children and their carers. However, [Mr Gonzales], already has supervised contact on 3 days a week and the suggested quarterly/biannual face-to-face contact appears to be too restrictive for both parents.
15.4.7 I noted [Ms Flores's] observation that [Ms Gonzales] was not committed to her relationship with her sons and she is now in a new relationship with her partner in Queensland. [Mr Gonzales] should continue to have his current access to his sons as there is no suggestion that this arrangement has been disruptive for the children and carers. [Ms Gonzales] has recently returned 1 positive drug test […] whereas [Mr Gonzales] has returned all negative drug and alcohol screens. [Mr Gonzales] is emotionally very attached to his sons and they to him and this should be maintained.
15.4.8 I would agree with [Ms E] that the children remain in the care of [Ms Flores] and partner [Mr Aquirre], but suggest that [Mr Gonzales] have unsupervised access to his children on Wednesday, Friday and Sunday afternoons or as determined by the carers, while [Mr Gonzales] remains abstinent from drugs and alcohol.
15.4.9 [Mr Gonzales] does not pose a risk to the children via neglect or emotional or sexual abuse, as he reports shame· and regret over the sexual abuse of [W] and there is no report in the reviewed documents that he sexually abused his sons.
A report was also undertaken by the same psychologist in relation to the mother. The expert opined in that report as follows:
14.3.3… At my examination, [Mr Gonzales] expressed guilt and shame for his sexual abuse of [W] and his previous lifestyle, whereas [Ms Gonzales] did not express guilt, shame or regret about her poor care of the children, and attempted to minimise her drug and alcohol use and denied sexual abusing [W].
…
14.3.5 [Ms Gonzales] attempted to re-establish regular contact with. the child~en by moving to New South Wales for 5 months but reported that access to the childien was being obstructed by [Ms Flores]. She now resides in Queensland with her partner and has regular supervised access to the children. [Ms Gonzales] reported at examination that she expects to have the children return to her care but has recently returned a positive drug screen […], whereas [Mr Gonzales] has returned no positive drug screens recently.
14.3.6 It appears that [Ms Gonzales] remains at greater risk of relapse for illicit drug use and relies on [prohibited substances] to cope with stress yet denies having any symptoms currently and she returned normal profiles on the DASS-21 and PCL-5 rating scales.
14.3.7 It appears unlikely that [Ms Gonzales] will return to New South Wales permanently. I agree with the recommendation by [Ms E] that the children should remain in the care of [Ms Flores] and her partner. I have no concerns about [Mr Gonzales] harming the children via neglect, drug and alcohol abuse, or sexual abuse and would recommend that he have unsupervised access to his children on Wednesdays, Fridays and Sundays, which are his current visit days.
14.3.8 I would recommend that [Ms Gonzales] continue to have supervised access until she provides consistently clear drug screens.
On 21 September 2022, I directed that the matter be listed for hearing for five days commencing today. I made a series of directions for the preparation of affidavits. In accordance with those directions, the mother filed her affidavits.
On 2 May 2023, my chambers was contacted by the Independent Children’s Lawyer (“the ICL”) seeking that the matter be relisted as the second and third respondents had filed a Notice of Discontinuance. The ICL raised concerns that the father had not filed his affidavits and queried whether the matter could proceed to a final hearing.
On 5 May 2023, the matter was relisted and the second and third respondents indicated that they had not filed their affidavits, and that they could no longer work with the mother and sought leave to withdraw from the proceedings. The father also sought an extension of time in which to file his affidavits. Leave to withdraw was granted to the second and third respondents.
On 16 May 2023, the father’s solicitors wrote to my associate advising of a new development, that the father had filed a Notice of Discontinuance and sought an urgent relisting. The matter was relisted on 17 May 2023. On that occasion, the father’s counsel indicated that his client was withdrawing from the proceedings. He indicated that documents produced under subpoena from Queensland Police revealed that there was a warrant for the father’s arrest for multiple charges arising out of the sexual assault of W. The father’s counsel indicated that the father had been unaware of the warrant or the charges.
At that same mention, the father’s sister and her partner indicated that they were reconsidering their position in relation to the hearing.
On that date, I made orders pursuant to s 91B of the Family Law Act 1975 (Cth) directed to the Department for Child Protection of South Australia (“the Department”) seeking that they intervene in the proceedings.
On 19 May 2023, the Department contacted my associate and indicated that they had no record in relation to the children but would need an adjournment of four to six weeks to make enquiries and provide information to the Court.
On that same day, the second and third respondents contacted my associate and indicated that they intended to make an application to “rejoin the matter”.
CONCLUSION
The current situation for these children is very unsatisfactory. There is no evidence from the people who have been their primary carers for the last three years. The untested expert evidence from the Family Report writer and psychologist both recommend that the children remain in their care. They both express concerns in relation to both parents’ capacity. I note at this stage that evidence is clearly the subject of contest as far as the mother is concerned.
The relationship between the children’s carers and the mother has broken down. She asserts that they have denied her contact with the children between August 2022 and March 2023. In her Amended Initiating Application filed 1 May 2023, she seeks final orders for sole parental responsibility and that the children live with her. Her application also seeks various orders in relation the second and third respondents.
The mother has re-partnered. She says that she has commenced studying and that she has had a series of drug tests between August 2022 and March 2023, all of which have returned a negative result.
It would appear also that the second and third respondents have relocated to Adelaide. This brings into focus the practicality of spending time arrangements between the children and the mother and the father.
Lastly, there is no up to date expert assessment of the mother or her partner, and the position of the Department will not be known for some four to six weeks.
The unfortunate reality and one conceded by the mother’s counsel and the ICL is that the matter will be unable to proceed and will have to be adjourned.
I will make orders that will bring this matter back before me on 21 July 2023 by which time the position in relation to all parties will be somewhat clearer, and I will also fix this matter for hearing to take place in the first half of next year.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 23 May 2023
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