Details
- Case
- [2023] FedCFamC1F 438
- Decision Date
-
CaseChat Overview and Summary
In the Family Court, the matter of Gonzales & Gonzales (No 2) involves the determination of parenting arrangements for two minor children, X and Y, following the breakdown of their parents' relationship. The parents, who had been in a tumultuous relationship marked by allegations of alcohol abuse, illicit drug use, and family violence, separated in 2018. The children had been living with their father until May 2020 when the mother initiated proceedings seeking sole care of the children. Various interim orders have been made since, placing the children in the care of the father's sister and her partner, with supervised visits to both parents.
The court was required to decide on the appropriate long-term living and contact arrangements for the children, considering the primary and additional considerations under the Family Law Act 1975 (Cth). The court examined the competing proposals of the parties, the contested facts, and the expert evidence presented. The Family Report and psychological assessments raised concerns about the parents' capacity to care for the children, particularly in relation to drug and alcohol use, mental health, and the risk of harm to the children.
The court found that the father's proposal, which involved him and his sister sharing parental responsibility for the children, did not sufficiently protect the children from the identified risks and harms. The court was not satisfied that the father's sister and her partner's proposal, which involved the children living with them, would enable the children to maintain a meaningful relationship with their mother. The court concluded that the orders it would make would ensure that the children could maintain such a relationship with their mother while protecting them from the identified risks and harms.
The court made orders for the children to live with the father's sister and her partner, with unsupervised visits to the father and supervised visits to the mother, pending her provision of consistently clear drug screens. The court also directed the Department for Child Protection of South Australia to intervene in the proceedings and provide information to the court. The matter was adjourned to allow for further enquiries and the preparation of additional evidence.
Background
Background to the litigation
The Court has also had regard to the Family Report of Ms E dated 28 January 2022 as well as a psychological report in relation to the mother of Mr Q dated 18 July 2022.BACKGROUND Some context to the current dispute is apparent from my reasons for judgment delivered 25 May 2023, which have been published as Gonzales & Gonzales [2023] FedCFamC1F 406. I incorporate into these reasons the following paragraphs from that judgment:4.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.5.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. 6.During the course of the parties’ relationship, the mother’s daughter, [W], a child of a previous relationship, lived with the parties. 7.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.8.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, [the mother] 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 [the mother] 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 [the mother] 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 [the mother] 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 cannot 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 [the mother] 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 [the first respondent] and [the second respondent] and [Ms C] about what I had told the department in Queensland and when [the respondents] found out about the disclosure that I had made they were disappointed in me and disgusted in both [the mother] and I. [The respondents] 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 [the mother] to have care of the boys until the there was appropriate intervention by the courts.74. [The respondents] instructed [D Lawyers] and an application was brought on an urgent basis for them to be the sole carers of the boys and for [the mother] to have supervised time with the boys.9.On 17 September 2020, orders were made placing the children in the care of the father’s sister and her partner, the [respondents]. Orders were also made for the mother and father to spend supervised time with the children. 10.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, [the mother], [the father] and [W] moved to [Suburb F]. [The mother] said that [the father] was violent toward her when they lived there. She said that he dragged her by the hair and threw her across a room. [The father] said that, when they lived in [Suburb F], both he and [the mother] sexually abused [W] but that [the mother] was the instigator and main abuser. [The mother] said that she and [the father] separated many times, including when they lived together in [Suburb F]. She denies ever having sexually abused [W]. [The father] and [the mother] reunited after about six months. …11. [The mother] said that she and [the father] argued about his drinking and him not working. She said that [the father] 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 [the father]. [W] was interviewed by the [a] Child Abuse unit in 2020. She denied having been sexually abused by her mother but did disclose sexual abuse by her stepfather [the father]. NSW police transferred the matter to Queensland. Queensland police advised that the matter is ongoing. They have asked for a copy of this report.11At 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 [the first respondent], her partner [the second respondent] and their son [[G], aged 14 years] and [the first respondent’s] older children [[Mr H] 29 and [Mr J] 25] in [Suburb K], Sydney. [The mother] lives in [M Town] with her partner and [W]. [The father] lives on his own […] 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. 12. She records the proposals of the parties in following terms:22. [The mother] proposes that she have sole parental responsibility for the children and that the children live with her, spending time with [the father] under supervision. She said that she would agree to the children spending time with [the respondents] in school holidays.23. [The father] proposes that he and his sister [the first respondent] 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 [the first respondent] and her family and any time that they spend with [the mother] be supervised.24. [The respondents] 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 [the mother] as they feel that [the mother] undermines the children’s placement. 13. 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 [the father] during interview. Allegations about sexual abuse of [W] by [the mother] have not been substantiated. Although [W] is not a subject child, her treatment in the care of [the mother] and [the father] 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. [The first respondent] 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 [the respondents].…It is recommended that [the mother] and [the father] 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 [the father] is spending time with the children three times per week and [the mother] 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 [the respondents] 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 [the respondents] 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 [the mother] and [the father].… 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 [the respondents] are not aware of the potential risk that [the father] 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. [The respondents] appear to be unaware of the extent of the abuse that [the father] 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.14.As a consequence of the recommendations of [Ms E], psychological assessments were directed to be undertaken in relation to both parents.…16A 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, [the father] expressed guilt and shame for his sexual abuse of [W] and his previous lifestyle, whereas [the mother] 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 [The mother] attempted to re-establish regular contact with. the children by moving to New South Wales for 5 months but reported that access to the children was being obstructed by [the first respondent]. She now resides in Queensland with her partner and has regular supervised access to the children. [The mother] reported at examination that she expects to have the children return to her care but has recently returned a positive drug screen […], whereas [the father] has returned no positive drug screens recently.14.3.6 It appears that [the mother] remains at greater risk of relapse […] 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 [the mother] will return to New South Wales permanently. I agree with the recommendation by [Ms E] that the children should remain in the care of [the first respondent] and her partner. I have no concerns about [the father] 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 [the mother] continue to have supervised access until she provides consistently clear drug screens.17.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.18.On 2 May 2023, my chambers was contacted by the Independent Children’s Lawyer (“the ICL”) seeking that the matter be relisted as the [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. 19.On 5 May 2023, the matter was relisted and the [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 [respondents]. 20.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. 21.At that same mention, the father’s sister and her partner indicated that they were reconsidering their position in relation to the hearing. 22.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. 23.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. 24.On that same day, the [respondents] contacted my associate and indicated that they intended to make an application to “rejoin the matter”.CONCLUSION25.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. 26.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.27.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. 28.It would appear also that the [respondents] have relocated to Adelaide. This brings into focus the practicality of spending time arrangements between the children and the mother and the father. SUBMISSIONS OF THE ICL
