HABERMAN and Aceda

[2020] FCCA 1224

FEDERAL CIRCUIT COURT OF AUSTRALIA

HABERMAN & ACEDA [2020] FCCA 1224

Catchwords:
FAMILY LAW – Parenting – best interests of child – concerning the issue of changeover on an interim basis – whether there is an unacceptable risk that the child will be exposed to family violence at changeovers – where there is an existing family violence order in place for the protection of the mother from the father and there is an allegation of a breach of this order – where parties indicate B Family Centre is only able to facilitate one changeover per fortnight for reasons associated with the COVID-19 pandemic – where father terminates retainer of legal representative during hearing – where no appropriate alternative to father facilitating changeover submitted – vary existing order to reduce changeovers so only occurring at B Family Centre or Police Station.

Legislation:
Family Law Act 1975 (Cth)

Applicant: MS HABERMAN

Respondent: MR ACEDA

File Number: DNC 232 of 2019

Judgment of: Judge Young

Hearing date: 2 April 2020

Date of Last Submission: 2 April 2020

Delivered at: Darwin

Delivered on: 2 April 2020

REPRESENTATION

Counsel for the Applicant: Ms A. Noble

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Ms T. Gray

Solicitors for the Respondent: Grays Legal NT

Counsel for the Independent Children’s Lawyer: Ms M. Romeo

ORDERS

UPON NOTING

A.Mr Aceda terminated the retainer of his legal representative Ms Gray during the hearing and made submissions in person.

B.Presently B Family Centre can only facilitate changeover on Sunday at 4.15pm.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That Order 2, 3 and 4 of the Orders 25 November 2019 be discharged.

2. That commencing Thursday 9 April 2020 the child X born in 2016 (“the child”) shall spend time with the Father once per fortnight from Thursday 4.00pm to Sunday 4.15pm and each alternate week thereafter.

3. That all changeovers shall occur at B Family Centre at such times as B Family Centre can facilitate and in the event B Family Centre is unable to facilitate changeovers they shall occur at the City C Police Station.

4. That the Mother be permitted to have the maternal grandmother attend with her at changeovers or for the maternal grandmother to attend at changeovers alone to collect the child from the Father.

5. That the Father be permitted to have the paternal grandmother attend at changeovers, and if the Father is unable to attend changeovers, the paternal grandmother shall attend.

6. That the parties be restrained by an injunction and an injunction issue restraining the parties from:

   (a)Communicating at changeovers;

   (b)Filming or taking photos of either party or the child at changeovers; or

   (c)Permitting, allowing or encouraging a third party to do any of the above.

7. This matter be adjourned for a trial call over on 17 June 2020 at 9.30am (NT time) for further directions before Judge Young at the Federal Circuit Court of Australia.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DARWIN

DNC 232 of 2019

MS HABERMAN

Applicant

And

MR ACEDA

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 has just turned four.  This matter was set for trial this week in Alice Springs but because of the current COVID-19 crisis the Court is not travelling at the moment on circuits, so, very regrettably, it was not possible to undertake this trial.  That has meant that I have had to deal with on an interim basis the question of changeover, which does not appear to be working very well. 

3. The current orders provide for the child to spend time with the father from every second Friday at about 4 pm to Sunday at 4:15 pm.  Originally the orders contemplated that each changeover would be at B Family Centre under the orders of 25 November 2019, but for reasons also associated with the COVID-19 pandemic, B Family Centre apparently now are able to only offer one changeover time per fortnight, and that is at 4.15pm on Sunday.  That has necessitated revisiting the changeover arrangements.  It seems that the mother is willing to undertake a changeover herself face to face at the police station but only on one occasion in a fortnight, not three, as would need to be the case following B Family Centre’s unavailability for those other changeovers. 

4. The mother’s position is based on what is uncontroverted background information or material which is that on 29 November 2019 a domestic violence order was made in the Local Court in City C naming the mother as a protected person and providing that the father should not, among other things, contact the mother, harass her, assault her and should not contact her with various exceptions, including pursuant to Family Court orders. 

5. The mother has alleged that the father breached that domestic violence order by contacting her via text message last year as I understand it.  That matter was set for hearing, I was told on 20 March this year, but presumably also because of the COVID-19 pandemic, that hearing was adjourned or vacated. 

6. So the uncontroverted background is that there is an existing family violence order in place for the protection of the mother, forbidding the father from having any contact with her apart from pursuant to Family Court orders and that there is an allegation of a breach, which has been prosecuted in the Magistrates Court in City C.  There was due to be a hearing on 20 March 2020 but that has not gone ahead because of, I infer, the COVID-19 pandemic. 

7. Against that background, it appears to me that a court would be anxious to minimise the potential for contact between the mother and the father.  I am satisfied that is a reasonable response by the mother in the circumstances.  The father says the present time arrangements can stay in place because he says I have proffered some other people who can conduct the changeover.  Apparently the mother has agreed to the paternal grandmother, Ms D, conducting the changeovers, but the father has said in an affidavit he filed yesterday that his mother is frail and essentially too unwell to continue to do this.

8. I was in the midst of giving reasons for the orders I am about to make when Mr Aceda, who had been hitherto represented by Ms Gray, informed me that he was terminating his retainer to Ms Gray, and in the circumstances, he wished to make further submissions beyond those that Ms Gray had already made. 

9. I permitted Mr Aceda to make further submissions.  In those submissions, he told me that Ms Noble who appeared for the mother, Ms Romeo the independent children’s lawyer and possibly also Ms Gray understood that Mr Aceda was saying that his mother, who had been doing all the changeovers at I assume the City C Police Station, was no longer capable of doing the changeovers.  That understanding was one that I shared as well because Mr Aceda filed yesterday, unbeknownst to his own solicitor, an affidavit on the Court portal dealing with a variety of issues, most of which are not relevant to anything I have to decide today, but at paragraph 23 in particular, he said, referring to his mother:

   It’s well known that Ms D is handicapped.  Every handover, bar the handovers in which I delivered Ms D to City C, she is accompanied by a driver/carer to get her to and sometimes inside the handover location.

10. Mr Aceda then goes on to describe the carers who have been present.  These include family members, in some cases a 75 year old member of the father’s family, Mr E, on other occasions a 13 year old child, on another occasion another adult, Mr F, and so on.  I had understood from that paragraph that Mr Aceda was informing the Court that his mother was unable to conduct the changeovers unaided and I think a fair reading of the paragraph says exactly that.  Mr Aceda interrupted my reasons to say that that was a misunderstanding and that Ms D could continue to conduct changeovers.  He did say however that given Ms D’s age the family believed that she should be accompanied. 

11. I asked him to tell me precisely what his proposal was as it was not apparent to me from his affidavit or any other material before me.  He told me that his proposal is that the current orders which provide for the child to spend time with him in the fortnight from Friday to Sunday alternate weekends and from Thursday to Friday in the intervening week.  Those four changeovers, or at least three of them if B Family Centre are unavailable, would be conducted by Ms D along with Mr G, a person not mentioned in paragraph 23 of the affidavit.  Mr G is referred to in the affidavit of the mother under the name Mr G at paragraph 143(f) as a person who she specifically objects to being present at changeovers on the basis that on an earlier occasion Mr G has called the mother a “bitch” and a “cunt” and had also threatened her by saying, “I’ll get people after you.”  That was an affidavit filed on 16 March 2020 by the mother.  Mr Aceda’s affidavit that he filed himself yesterday does not address that allegation. 

12. In the circumstances I am not satisfied that a changeover team, so to speak, consisting of Ms D and Mr G is appropriate.  As I am satisfied no evident combination of Ms D and any other person is appropriate for changeover on those three occasions a fortnight with the mother I propose to vary the existing time orders.  I do so because I consider that given the background I described earlier, that is, an existing family violence order, an existing allegation of breach and an existing prosecution by the police, which has been adjourned, I consider there is an unacceptable risk that the child will be exposed to family violence with three or four changeovers a fortnight involving the mother and the father and/or father’s family members. 

13. I therefore propose to vary the existing order so that the child spends time with the father from Thursday 4 pm to Sunday 4:15 pm each fortnight until further order, with changeover to take place at B Family Centre, and if B Family Centre are unable to facilitate those changeovers then at City C Police Station.  That arrangement will commence next Thursday. 

14. I am going to adjourn the matter to a trial callover in Alice Springs on 17 June at 9.30 am when I will be deciding what to do with the outstanding Alice Springs Trials. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate:

Date: 18 May 2020