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…
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Details
- Case
- [2023] FedCFamC1F 406
- Decision Date
CaseChat Overview and Summary
Gonzales v Gonzales [2023] FMCAfam 110 involves a dispute between the parents of two minor children regarding their care, custody, and control. The matter has been adjourned by Justice Edelman, who has provided reasons for this decision. The parents, who were in a relationship between 2006 and 2018 and married in 2015, have a history of allegations of alcohol abuse, drug use, and family violence. The mother commenced proceedings in May 2020 seeking orders for the children to be placed in her care, alleging that the father had prevented her from spending time with the children. The father, who had been the primary carer for the children, faced significant challenges in complying with the initial orders due to border closures during the COVID-19 pandemic. Additionally, the father disclosed past incidents of alleged sexual abuse involving the mother's daughter, which led to further complications in the case.
The court was required to decide on the admissibility of the father's affidavit and the appropriate course of action in light of the complex circumstances and the lack of up-to-date expert assessments. The court also needed to consider the impact of the relocation of the children's primary carers to Adelaide on the practicality of spending time arrangements between the children and the parents. Furthermore, the court had to address the need for a more comprehensive understanding of the Department of Communities and Justice's position, which would not be available for several weeks.
In his decision, Justice Edelman noted the unsatisfactory current situation for the children and the contest over the evidence presented. He acknowledged the concerns raised by the experts in the Family Report about both parents' capacity and the breakdown in the relationship between the children's carers and the mother. The court considered the need for further evidence and expert assessments to make informed decisions regarding the children's care, custody, and control. Additionally, the court recognised the practical challenges posed by the relocation of the children's primary carers to Adelaide and the need for a clearer understanding of the Department's position. Consequently, the court decided to adjourn the matter to allow for the gathering of further evidence and expert assessments, and to provide an opportunity for the parties to address the practical challenges of spending time arrangements. The matter will be brought back before the court on 21 July 2023, with a hearing scheduled for the first half of the following year.
The court was required to decide on the admissibility of the father's affidavit and the appropriate course of action in light of the complex circumstances and the lack of up-to-date expert assessments. The court also needed to consider the impact of the relocation of the children's primary carers to Adelaide on the practicality of spending time arrangements between the children and the parents. Furthermore, the court had to address the need for a more comprehensive understanding of the Department of Communities and Justice's position, which would not be available for several weeks.
In his decision, Justice Edelman noted the unsatisfactory current situation for the children and the contest over the evidence presented. He acknowledged the concerns raised by the experts in the Family Report about both parents' capacity and the breakdown in the relationship between the children's carers and the mother. The court considered the need for further evidence and expert assessments to make informed decisions regarding the children's care, custody, and control. Additionally, the court recognised the practical challenges posed by the relocation of the children's primary carers to Adelaide and the need for a clearer understanding of the Department's position. Consequently, the court decided to adjourn the matter to allow for the gathering of further evidence and expert assessments, and to provide an opportunity for the parties to address the practical challenges of spending time arrangements. The matter will be brought back before the court on 21 July 2023, with a hearing scheduled for the first half of the following year.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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