Pedrosa & Findon

Case [2021] FCCA 1227

FEDERAL CIRCUIT COURT OF AUSTRALIA

Pedrosa & Findon [2021] FCCA 1227

File number(s): PAC 4605 of 2020
Judgment of: JUDGE NEWBRUN
Date of judgment: 4 June 2021
Catchwords:

FAMILY LAW – parenting - best interests of Child -interim orders made

FAMILY LAW – proceedings transferred to the Family Court of Australia - order made

Legislation:

Federal Circuit Court of Australia Act 1999 s 39
Federal Circuit Court Rules 2001 r 8.02

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Cases cited: Banks & Banks (2015) FamCAFC 36
Eaby & Speelman [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No 2) [2010] FamCAFC 101
Morris & Rosetti [2017] FamCA 249
Number of paragraphs: 123
Date of last submission/s: 3 May 2021
Date of hearing: 27 April 2021, 3 May 2021
Place: Parramatta
Solicitor for the Applicant: Ms Munk
Solicitor for the Respondent: Mr Grew
Solicitor for the Independent Children's Lawyer: Mr Bornam

ORDERS

PAC 4605 of 2020
BETWEEN:

MR PEDROSA

Applicant
AND:

MS FINDON

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

4 JUNE 2021

ORDERS PENDING FURTHER ORDER:

1.The Child X born in 2014 shall live with the Mother.

2.X shall spend supervised time with the Father as agreed between the parents in writing, or failing agreement, for 3 hours one Sunday each month commencing 13 June 2021 (or as soon thereafter as arrangements can be made) through P Contact Centre, at the Father’s expense.

3.Should the Father be unable to afford supervision of his time with the child through P Contact Centre, then he shall spend supervised time with the child at a Children’s contact centre subject to the requirements of Order 4.

4.For the purpose of effecting X’s time with the Father at a Children's contact centre pursuant to Order 3:

(a)X's time with the Father shall be supervised by a Children’s contact centre such as B Counselling at Suburb C or Suburb D (Contact Service);

(b)Each parent shall:

(i)Contact the Contact Service within 7 days and arrange an appointment for an intake assessment;

(ii)Attend the intake assessment;

(iii)Comply with all reasonable rules of the Contact Service; and

(iv)Comply with all reasonable requests or directions of the staff of the Contact Service;

(c)The Father is solely responsible for payment of the costs of the Contact Service;

(d)The Mother and the Father shall each provide such authority as is required by the Contact Service to ensure the timely provision of a contact report to the Independent Children's Lawyer in relation to each occasion on which X has time with the Father at the Contact Service;

(e)The Father's Child E shall not be involved in any contact that X has with the Father at the Contact Service.

5.A Court Expert shall be appointed pursuant to Part 15.5 of the Family Law Rules to provide a report (Court Expert Report) regarding the Mother, the Father and X including an assessment of the capacity of each parent to safely parent or care…

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Pedrosa & Findon [2021] FCCA 1227
Case
[2021] FCCA 1227
Decision Date

CaseChat Overview and Summary

This matter concerned parenting orders sought by Mr Pedrosa (the Applicant Father) and Ms Findon (the Respondent Mother) regarding their child, Child X, born in 2014. The proceedings were heard by Newbrun J in the Federal Circuit and Family Court of Australia. The dispute centred on the arrangements for Child X to spend time with the Father, particularly given a significant period of no contact and concerns raised about the Father's capacity and the child's welfare.

The court was required to determine the specific orders concerning Child X's living arrangements and time with the Father. Key issues included the nature and extent of supervised contact, the financial responsibility for supervision, the appointment of a court expert to assess the parents' capacities, and the need for injunctions to protect the child and the Mother. The court also considered the impact of the Father's mental health history and the child's alleged distress regarding contact.

Newbrun J applied the paramount consideration of the child's best interests, as outlined in section 60CC of the *Family Law Act 1975* (Cth). The court weighed various factors, including the child's views (though limited due to age and alleged distress), the nature of the relationships with each parent, the parents' fulfillment of their obligations, and the potential impact of changes in circumstances. The court noted the Father's history of mental health issues, including hospitalisation, but also acknowledged his engagement with psychological treatment and his current employment as a carer. The court found that while the Mother appeared to have the capacity to meet the child's needs, the Father had also provided satisfactorily for the child's needs in the past. The court also considered the practicalities and expense of contact arrangements.

The court made orders that Child X shall live with the Mother. The Father was granted supervised time with Child X, initially through a contact centre at his expense, with provisions for alternative arrangements if he could not afford the primary option. The court also appointed a court expert to report on the parents' capacities and made significant injunctions restraining the Father from contacting the Mother directly and from attending at the child's school, except as agreed in writing. The proceedings were transferred to the Family Court of Australia at Parramatta.

Orders

Orders of the court

PAC 4605 of 2020

BETWEEN:

MR PEDROSA

Applicant

AND:

MS FINDON

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

4 JUNE 2021

ORDERS PENDING FURTHER ORDER:

1. The Child X born in 2014 shall live with the Mother.

2. X shall spend supervised time with the Father as agreed between the parents in writing, or failing agreement, for 3 hours one Sunday each month commencing 13 June 2021 (or as soon thereafter as arrangements can be made) through P Contact Centre, at the Father’s expense.

3. Should the Father be unable to afford supervision of his time with the child through P Contact Centre, then he shall spend supervised time with the child at a Children’s contact centre subject to the requirements of Order 4.

4. For the purpose of effecting X’s time with the Father at a Children's contact centre pursuant to Order 3:

(a) X's time with the Father shall be supervised by a Children’s contact centre such as B Counselling at Suburb C or Suburb D (Contact Service);

(b) Each parent shall:

(i) Contact the Contact Service within 7 days and arrange an appointment for an intake assessment;

(ii) Attend the intake assessment;

(iii) Comply with all reasonable rules of the Contact Service; and

(iv) Comply with all reasonable requests or directions of the staff of the Contact Service;

(c) The Father is solely responsible for payment of the costs of the Contact Service;

(d) The Mother and the Father shall each provide such authority as is required by the Contact Service to ensure the timely provision of a contact report to the Independent Children's Lawyer in relation to each occasion on which X has time with the Father at the Contact Service;

(e) The Father's Child E shall not be involved in any contact that X has with the Father at the Contact Service.

5. A Court Expert shall be appointed pursuant to Part 15.5 of the Family Law Rules to provide a report (Court Expert Report) regarding the Mother, the Father and X including an assessment of the capacity of each parent to safely parent or care for X and meet his physical and emotional needs.

6. To facilitate preparation of the Court Expert Report:

(a) The Independent Children’s Lawyer shall provide the Court Expert with copies of all documents filed in these proceedings;

(b) Leave is granted to the Independent Children’s Lawyer to provide the Court Expert with copies of all pages identified by a party or the Independent Children's Lawyer from the documents produced on Subpoena;

(c) For the purposes of Order 6 (b), the parties shall each clearly identify the pages required to be included by tagging said pages or by providing a list of page numbers from digital files (as the case may be) within 14 days of the date of these Orders;

(d) Each of the parties shall attend upon the Court Expert for interviews and observation sessions at such times and places as the Court Expert reasonably requires;

(e) The Mother shall arrange for X's attendance for interviews and observation sessions at such times and places as the Court Expert reasonably requires;

7. The Mother and the Father shall be jointly and equally responsible for meeting the cost of the Court Expert Report, and shall each pay their half share into the Medcalf Grant Lawyers trust account BSB ...96 Account ...32 on account of the costs of the Court Expert within 7 days of a request by the Independent Children's Lawyer for that payment to be made.

8. Leave is granted to the Independent Children's Lawyer to relist this matter on 72 hours’ notice if the parties cannot reach agreement in relation to the Contact Service or Court Expert or if any party fails to attend to an obligation arising pursuant to these Orders.

9. The Father is restrained by injunction from being present within the premises or grounds of any school that X attends except as agreed in writing by the Mother each such agreement to be only in relation to a specific day and time-period.

10. That the Father be and is hereby restrained from contacting the Mother by telephone, email, or text message except other than through her lawyer.

11. That the Father be and is restrained from approaching the Mother or attending upon the Mother’s residence.

12. These parenting proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with a mention date to be held in that Court on 17 June 2021 at 10:15am.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The following Exhibits were relied upon:(a)Exhibit A: Child Inclusive Memorandum dated 27 April 2021.EVIDENCE The Child is now aged 7 years. The Father was born in 1974. The Mother was born in 1972. The Father alleges that the parties were in a boyfriend/girlfriend relationship for a few months, and after that relationship breakdown, the Mother advised him that she was pregnant with the Child. The Father alleges that after the Child’s birth initially he had daytime only with the Child. He alleges that this time occurred at the Mother’s home and nearby park several times each week. The Father alleges that the parties entered into a parenting plan in early May 2017 in relation to his time with the Child. The Father alleges that from February 2019, when the Child was five years of age, the Father was spending 5 nights per fortnight with him and also spending time with the Child during one half the school holidays in blocks of 7 days at a time, together with time on special occasions. The Father alleges that the Child has not spent time with the Father since March 2020 because the Mother has not facilitated such time occurring. On one occasion in 2020 the Father attended the Child’s school with a view to seeing him. The Father spent some brief time with the Child on this occasion. Apart from this occasion, the Father has not seen or spoken to the Child for a year. The Father alleges that between 2 April 2020 and 1 May 2020, he attended upon Suburb K Community Mental Health Unit after being referred by his GP to assist him with his alleged distress of being away from the Child and his other Child E born in 2018. The Father voluntarily admitted himself into L Hospital on 30 April 2020. He remained there until 17 May 2020. He refers to his discharge summary from that hospital and which refers, inter alia, to a diagnosis for the Father of anxiety disorder. The Father alleges that he now works as a carer for physically and intellectually disabled persons. The Father alleges that he has re-partnered with Ms F. He lives in a home in Suburb M with this person. He shares a bedroom with this person. In the report of Dr J, psychiatrist, dated 27 March 2021, he states that he has reviewed the Father on 9 December 2020 (first review) and on 17 February 2021. He asserts, inter alia, that following discharge from hospital, the Father had a fluctuating presentation up to the point of the first review, together with ongoing stress reported to be related to lack of access to the Children, as well as his financial stressors. The doctor asserts that when he reviewed the Father for the second time in February 2021, the Father presented as under ongoing stress, but in an improved mental state compared to his first review with him. He referred to the Father having attended upon Ms N at the O Centre for 36 psychology sessions between July 2018 and February 2021. In Dr J’s Report of 7 April 2021, inter alia, he refers to the Father’s further improvement in his mental health, in spite of the ongoing stress that remains due to the upcoming Family Court hearing.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Court gives significant weight to this need to protect primary consideration.Section 60CC(3) - Additional Considerations (a) Any views expressed by the Child and any factors (such as the Child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the Child’s views The Child was interviewed by the family consultant on 19 January 2021 merely acknowledging that he had not seen the Father for a long time. The Mother alleged to the family consultant that any discussion in regards to spending time with the Father with the Child causes him distress. She alleged that the Child declined to speak to the Father on his birthday. The Court observes that the family consultant had stated that it was not possible to determine the nature or cause of any alleged distress in the child in this regard.(b) The nature of the relationship of the Child with each of the Child’s parents; and other persons (including any grandparent or other relative of the Child) The Court refers above to the meaningful relationship primary consideration. The Child would appear to have positive relationships with the Mother’s extended family and the Child E.(c) The extent to which each of the Child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the Child; and to spend time with the Child; and to communicate with the Child Both parties would appear to have taken up such opportunities.(ca) The extent to which each of the Child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the Child The Mother has fulfilled such obligations. The Father has maintained the Child when in his care and pays Child support.(d) The likely effect of any changes in the Child’s circumstances, including the likely effect on the Child of any separation from either of his or her parents; or any other Child, or other person (including any grandparent or other relative of the Child), with whom he or she has been living Should the Child spend supervised time with the Father, with a professional supervisory body or at a contact centre, as discussed above under the meaningful relationship primary consideration, there is a reasonable prospect that the Child’s meaningful relationship with the Father can begin to be redeveloped.(e) The practical difficulty and expense of a Child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the Child’s right to maintain personal relations and direct contact with both parents on a regular basis Not applicable.(f) the capacity of:i) each of the Child’s parents; andii) any other person (including any grandparent or other relative of the Child);to provide for the needs of the Child, including emotional and intellectual needs The Mother would appear to have such capacities. As to the Father, the Court refers to its discussions above under the need to protect primary consideration, whilst it would appear that he has in the past, for not insignificant periods, provided satisfactorily for the Child’s needs. (g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the Child and of either of the Child’s parents, and any other characteristics of the Child that the Court thinks are relevant