Ronquillo and Corona

[2014] FamCA 1057

FAMILY COURT OF AUSTRALIA

RONQUILLO & CORONA [2014] FamCA 1057

FAMILY LAW – CHILDREN – where final orders already made – where mother seeks to change final orders shortly after they were made – paternity of another child – where the mother now seeks to end the father’s time with the child indefinitely – risk of harm to the child – best interests of the child.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA,

Dieter & Dieter [2011] FamCAFC 82
George and George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
SS & AH [2010] FamCAFC 13

APPLICANT: Ms Ronquillo

RESPONDENT: Mr Corona

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: PAC 3238 of 2010

DATE DELIVERED: 28 November 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 20 October 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Knight

SOLICITOR FOR THE RESPONDENT: Ms Ralston

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Druitt

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ng

Orders

1. Orders 3.1 to 3.9 of the Orders made on 5 June 2012 by Federal Magistrate Halligan are discharged.

2. The child Y born … 2007 (“the child”) is to spend time with the father, commencing upon a vacancy becoming available for changeover at the Contact Centre as referred to in Order 3, as follows:

   (a)       For a period of 6 weeks, each Saturday for a period of 2 hours, 9:00am to 11:00am, or if that time cannot be facilitated by the Contact Centre, at a time that is suitable to the Contact Centre as referred to in Order 3.

   (b)       Following the period of 6 weeks in Order 2(a), each Saturday for a period of a further 6 weeks, for a period of 4 hours, 9:00am to 1:00pm, or if that time cannot be facilitated by the Contact Centre, at a time that is suitable to the Contact Centre as referred to in Order 3.

   (c)       Following the period of 6 weeks in Order 2(b), for a period of 6 hours each Saturday thereafter, 9:00am to 3:00pm, or if that time cannot be facilitated by the Contact Centre, at a time that is suitable to the Contact Centre as referred to in Order 3.

3. For the purposes of changeover, the mother shall deliver the child to B Contact Centre at the commencement of the child’s time with the father, and the father shall deliver the child back to B Contact Centre at the conclusion of each period of time.

4. The mother and father are to obtain referrals, as soon as practicable, for the child to engage in therapy with Dr V with a view to assisting the child transition between the mother and the father.

5. The parties are to ensure the child’s attendance upon Dr V as Dr V may request.

6. The parties share equally any costs associated with the child’s attendance upon Dr V.

7. Pursuant to section 69W of the Family Law Act 1975 (Cth), the parties are to submit to DNA parentage testing by Genetic Technologies, (being a legal paternity DNA test as defined by Genetic Technologies) a laboratory accredited to carry out parentage testing procedures by National Association for Testing Auhtorities (NATA), to determine if the Father, Mr Corona is a parent of the child L (“the younger child”) born on … 2009.

8. The parentage testing referred to in Order 7 be carried out in accordance with Part IIA of the Family Law Regulations 1984, and pursuant to section 69X of the Family Law Act, take place under the following terms and conditions:

   (a)       The Father and the Mother (or Legal Aid NSW on behalf of the Mother) will each initially meet half of the cost of the parentage test report;

   (b)       The Father and the Mother (or Legal Aid NSW on behalf of the Mother) will pay their share of the costs of the parentage test report within twenty one (21) days of receiving an invoice from Genetic Technologies;

   (c)       Within fourteen (14) days of being requested to do so by Genetic Technologies, the Father will do all acts and things necessary to enable the parentage testing to be carried out, including:

   (i)Attending a DNA sampling appointment arranged by Genetic Technologies;

   (ii)Providing two passport sized photographs showing his head and shoulders;

   (iii)Executing all necessary documents; and

   (iv)Providing the appropriate bodily samples.

   (d)       Within fourteen (14) days of receiving notice of the Father's compliance with Order 8, the Mother will do all acts and things necessary to enable the parentage testing to be carried out, including:

   (i)Attending, with the younger child, a DNA sampling appointment arranged by Genetic Technologies

   (ii)Providing two (2) passport sized photographs of her head and shoulders

   (iii)Providing two (2) passport sized photographs showing the younger child's head and shoulders;

   (iv)Executing all necessary documents; and

   (v)Providing the appropriate bodily samples, and arranging for bodily samples to be taken from the child.

9. The parties authorise Genetic Technologies to provide to either party upon request a copy of the photograph of either party or the child which are provided at the DNA sampling appointment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ronquillo & Corona has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC   of 2011

Ms Ronquillo

Applicant

And

Mr Corona

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns Y (“the child”) who is seven years old, the child of Ms Ronquillo (“the mother”) and Mr Corona (“the father”).

2. The parties met in 2004, commenced living together in 2006 and the child was born in 2007. The parties separated on a final based in May 2009 and the mother had another child, L (“the younger child”), in late 2009. The mother says that Mr Corona is the younger child’s father but he has some doubts and is seeking orders for a DNA test. The father has not spent any time with the younger child since her birth.

3. This application relates to the time the child Y spends with her father. The mother seeks to have that time, which is provided for in the orders of June 2012 suspended indefinitely. The father seeks the application to be dismissed and for his current time with the child to continue. He also seeks an order for DNA testing of the younger child, who is nearly five years old.

Background

1. Both parents were born in South America and came to Australia at different times. The mother is aged 29, and the father is aged 30.

2. The mother has another child, E, who is 10 years old, from a relationship prior to meeting the father. E has always lived with the mother, including the time when the parents lived together from 2006 to May 2009.

3. Interim parenting orders in relation to the child Y were made by consent of the parties in November 2010 when the child was 18 months old. These orders gave sole parental responsibility to the mother, the child was to live with the mother and spend time with the father supervised by B Contact Centre for two hours per week on either Saturday or Sunday.

4. Following these orders the parties were to make arrangements with the contact centre but due to centre delays the time the child spent with her father did not commence for some time.

5. The parties then settled on final parenting arrangements for the child Y. Pursuant to orders made on 5 June 2012 both parents have equal shared parental responsibility for the child and she continues to live with the mother. Under these orders the child initially was to spend time with the father, by way of fortnightly supervised visits at the contact centre. Time together was then to occur in the presence of the paternal grandmother and supervised by a supervision service for two consecutive Saturdays out of every three Saturdays, and the time was to be spent at a shopping centre, park, or play centre. The time was to increase to one overnight stay every second weekend and then to two nights overnight every second weekend. All changeovers were to occur at the B Contact service. There were no orders made in relation to the younger child.

6. In September 2012 the mother commenced proceedings to have these orders set aside in the Federal Circuit Court, largely based on evidence that was before the court prior to the consent orders being made in 2010, and it was decided that a Rice and Asplund threshold issue had to be determined. The matter was subsequently transferred to the Family Court for possible inclusion in the Magellan program, however the matter was declined to be placed in the Magellan program. At that stage the mother was not seeking interim orders.

7. The father spent time with the child Y in accordance with the orders from June 2012 to June 2013. He spent time with the child after that date on an ad hoc basis rather than in accordance with the orders. When the child was due to start spending overnight time with her father in June 2013, the child became quite distressed and the father arranged to return her home earlier than the orders provided. On other occasions, the mother has cancelled the child’s time with her father.

8. The mother brought this application following the events on Saturday, 23 August 2014 when the child spent time with her father.

9. The mother had been informed prior to the contact time on that day that the father was to take the child overnight, in accordance with the orders, and she was to have the child prepared for an overnight stay.  When the father arrived at the Contact Centre he reminded an employee that he would be returning the child the following day at the agreed changeover location. When the mother arrived with the child at the Contact Centre she says that the child did not want to go inside. The changeover did however occur and at 9:30 am the child went with the father to spend time together.

10. During the day, while the child was spending time with her father, both parties were in contact with the contact centre. The mother received a call from centre staff telling her that the child had gone willingly to spend time with her father, but the mother was concerned about the child not properly giving consent to overnight time. The father received a number of calls from the contact centre saying that the mother wanted the child returned.

11. The mother alleges that throughout the day she had a number of phone calls with the father and that he threatened to remove both Y and L from her care. She also says that the child Y spoke to her on the phone at various times throughout the day complaining that she was upset and unhappy and asking the mother to come and pick her up. So far as I understand it, the father disputes these assertions. In the afternoon, the mother contacted police, who said they were unable to assist her, although the father was under the impression that she had informed them that he was not allowed to be with the child.

12. At approximately 8:30 pm the mother rang the father again. Although it is not entirely clear why this occurred, the parties later agreed to meet at 9:30 pm at B railway station for the father to drop the child off to the mother. The father says he and his mother and the child waited for about 40 minutes before the mother arrived. When the mother arrived the child was in the toilet with the paternal grandmother.

13. The mother claims that the father was accompanied at the railway station by a drug dealer friend of his, and that when she asked where the child was, the father said “I want to speak with you”, lifted his jumper and placed his hands in his pockets. The mother says she saw a silver shiny item in the father’s pocket which she believed was a knife. The mother says that she then rushed over to the toilet and the door was closed. She says she called the child’s name and heard no response and when she leaned against the door she saw the paternal grandmother, covering the child’s mouth.

14. The father denies that any of these events occurred and says he simply saw the mother arrive, go into the toilet where the child was with the grandmother, heard a lot of banging and yelling and the mother came out grabbing the child’s hand and pulling her away.

15. The mother also says she grabbed the child and took her towards the car and drove home. The mother says that during the car journey the child was shaken and asked her mother whether she had seen the knife up the father’s sleeve. The mother claims that the child also said that she saw the knife when the father put it in his jumper and grabbed her by the arms and screamed at her and said that he was going to “kill mummy”. This version of the events and in particular the threats and allegation that he carried a knife is disputed by the father.

16. Since this time, the mother has not permitted the child to have any contact with the father

17. The father sought that the mother’s application be dismissed, as did the Independent Children’s Lawyer. However, it was conceded that as the child has not spent time with her father as provided for in the June 2012 orders for some months it could cause some distress for her if she were to immediately commence spending time including overnight time with him. Although it is a “backward step” in the development of the child’s relationship with her father, it was agreed by the parties that some opportunity should be provided for the relationship between the child and her father to be rekindled in the event that the court does not find that it is in the best interests of the child for her time with her father to be suspended. It was also agreed that Dr V would be an appropriate therapist to assist the child.

18. It was therefore proposed by the father that the June 2012 orders in relation to the child’s time with her father be suspended and that there be orders for the child to spend a gradually increasing period of time with him commencing with five and a half hours each Saturday and increasing after a couple of months to 9:00 am Saturday to 4:00 pm Sunday.

The law to be applied

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1].

   [1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the uncontested facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.

3. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

Framework for interim applications

1. In Dieter & Dieter[2]  the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration. In this case it may be many months or longer before the mother’s application for parenting orders is heard. If the mother’s interim application were to be granted, the child would spend no time with her father under the orders agreed to by her mother over two years ago.

   [2] [2011] FamCAFC 82

2. Goode (supra) sets a framework for the conduct of interim proceedings.  After identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts, the first issue to ordinarily be considered is that of parental responsibility.

3. In this matter, the mother does not seek on an interim basis to change the orders in relation to parental responsibility, but merely seeks for the father’s time with the child to be suspended. There is currently an order for equal shared parental responsibility for the child and no proposal by either party that it be changed. In these circumstances and as s 61DA(1) provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child, I do not propose making any orders to change the current arrangement with respect to parental responsibility.

4. So far as other orders are concerned, the Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.

Section 60CC considerations – What order is in the best interests of the child?

1. Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3).  The primary considerations, which are contained in subsection (2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).

3. Although the expression “meaningful relationship” is not defined in the Act, it has been held by the Full Court to mean a relationship which is “significant” or important. It is difficult to see how the child Y will receive the benefit of having a meaningful relationship with her father if she is to spend no time with him until these proceedings are determined. Considering the difficulties that were encountered when the father attempted to spend time with the child under the current orders, it may be that the relationship will have deteriorated so significantly if the child spends no time with her father, by the time the matter is heard that it may be beyond repair.

4. The Family Consultant said in the Child Responsive Program Memorandum following her assessment in May 2014 that the mother presented as having a limited capacity to tolerate the child Y having a relationship with her father.

5. So far as the need to protect the child from harm is concerned, the only issue of harm that has arisen since the consent orders were made arises from events which are very much in dispute. Although interim matters are to a great extent determined on the undisputed facts, in accordance with the decision of SS & AH[3], the Court may have some regard to the matters in dispute.  In that case, their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [3] [2010] FamCAFC 13

6. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George and George[4], a decision of the Full Court citing Deiter & Deiter (supra).)

   [4] [2013] FamCAFC 182

7. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

8. In relation to the prediction of the likelihood that the father may physically harm the child or the mother, this suggestion seems to arise entirely from the mother’s allegation arising from 23 August 2014 that the father was carrying a knife when he met the mother at the train station. There appear to be some significant inconsistencies in the mother’s version such as the child asserting that the knife was in the father’s jumper and the mother saying she saw it in his pocket. The mother also appears to have some uncertainty about what she had seen as she uses the expression “I became aware at that stage that the item was a knife” even though she only described it as a silver shiny item. There is no record of any complaint having ever been made to police that the father possessed a knife or threatened the mother. Further, the allegation must be considered in the context of the earlier proceedings where the mother consented to orders that provided for time with the father whilst asserting that the father had physically and sexually assaulted herself and sexually assaulted the child Y and her other daughter E.

1. I am of the view that if the allegations were proved they are of such a degree of seriousness that they may give rise to significant concerns about the child’s safety. However, in weighing the probabilities of the event having occurred on the evidence known to me, particularly having regard to the high standard required for allegations of this nature. I cannot be satisfied that the events occurred.

2. The mother makes numerous other allegations that the father sexually abused E and Y, which were investigated prior to the final parenting orders. The mother does not seem to be suggesting that there have been any incidents of sexual harm since the 2012 orders were made.

3. Similarly, the mother makes allegations of family violence and controlling and abusive behaviour during the relationship. One particularly bizarre allegation is that the father  sexually assaulted the mother by putting his work tools in her genitalia without her consent and that she sustained injuries and bleeding as a result. She said she sought medical attention, but did not inform the doctor how she sustained the injury. The mother alleges that the children witnessed the father sexually assaulting her, and it appears that all of these incidents are said to have occurred during the relationship and prior to the final orders. The father denied all of the allegations and said that the allegation in relation to the work tools would cause significant injuries if used as claimed by the mother.

4. Due to the unusual nature of the allegations and their age and inconsistency with the mother having consented to the child spending overnight time with the father after these alleged events, as well as them being in dispute, I am not of the view that any weight should be attached to them in this interim application.

5. Section 60CC(3) sets out additional considerations, and I will refer to those which are relevant in this case.

6. The child Y was interviewed by a Family Consultant in May 2014 for the purposes of a Children and Parents Issues Assessment. In the Memorandum it is recorded that the child referred to her “dad” as part of her family and said that she had fun playing with him at the park but provided no further information, including expressing no concerns regarding him. The child stated that she did not want to go with her father when she was to spend time with him. The child shrugged when asked to describe both of her parents, but also said she had fun with her mother and just wanted to be with her. Having regard to the child’s age and limited expression of views, I attach little weight to those views.

7. On the basis of the limited information known to me, it is difficult to make an assessment of the nature of the child’s relationships with her parents. She described herself to the Family Consultant as “happy” when with her mother and “shy” when with her father, but provided no further information. It would appear that the child has some form of relationship with her paternal grandmother, who provided some support and monitoring of the time the child spent with the father shortly after the previous orders were made.

8. Although the June 2012 orders provided for the parents to jointly exercise parental responsibility, it seems that the mother has been exercising sole parental responsibility for the child for many years. The father has consistently sought to spend time with, and communicate with the child. The extent to which the father contributes to the maintenance of the child is unknown, though there is no dispute that her mother has been her primary carer for most of her life.

9. The issue of the likely effect of any change in the child’s circumstances is an important one in this matter. Unfortunately, because it appears that the mother has been resistant to allowing a relationship between the child and her father to develop, even though she consented to orders, the progression of an increase in the time the child spends with her father has not occurred. As previously indicated, I am of the view that limiting the time between the child and her father is a backward step. However, I am concerned, particularly on the basis of the Family Consultant’s observations that requiring the child to spend time with her father in accordance with the orders would be difficult and uncomfortable for her as she has a limited relationship with her father. I am of the view that it would not be detrimental to the child to have some limited time with her father, which will necessarily involve a separation from her mother. It has been conceded by the mother that if the court were not of the view that is in the child’s best interests for her time with her father to be suspended, the child should be supported by some orders to allow her to have therapeutic support from Dr V. The most significant change on the parties’ proposals would arise if the child were to spend overnight time with her father.

10. At this stage, I consider it premature for the child to spend overnight time with her father, prior to commencing in the therapy from Dr V.

11. There will be some limited expense involved in the children’s contact centre facilitating changeover, but it does not appear to be suggested by the mother that she could not share this cost. There will also be costs associated with the therapy provided by Dr V, and even though the mother said she would only consent to such therapy on the basis that she did not incur any cost, it may be that the therapy will be covered by Medicare if a mental health plan is prepared for the child. In the event that there is some out of pocket expense, I am of the view that this is appropriate to be shared by both parties. So far as the mother is concerned, had she properly complied with the court orders in relation to the child spending time with her father, it would not be expected that therapy from Dr V would have been required.

12. At this stage and on the limited information available to me, I cannot comment on the capacity of the parents to meet the child’s needs, except to say that the child appears to have been well cared for on a physical basis by her mother and by her father during the limited time he has spent time with her. I have some concerns about the mother’s capacity to support the child’s relationship with her father, and her preoccupation with alleging that the father has harmed the child which may, depending upon further evidence, impact upon the mother’s capacity to meet the child’s emotional needs.

13. Final parenting orders were made in June 2012 and at this time the child should be spending overnight time with her father. The mother has consistently not provided the child for this overnight time, which reflects adversely on the mother’s attitude to the responsibilities of parenthood.

14. For the reasons previously given, I am not satisfied that the child has been exposed to family violence and I am not aware of any apprehended violence orders sought or made in this matter.           

15. In coming to a decision about what orders are in the child’s best interests, I must balance the various matters to which I have referred, and must also consider the context in which this application is made. The mother, having consented to orders that provide for the child to spend time with her father, appears to have failed to comply with those orders and actively resisted the child developing a relationship with her father. On 23 August 2014 she unilaterally decided that she would not allow the child to spend any more time with her father. The 2012 parenting orders at this stage have not been revisited, as a court has not made a determination that there has been a significant change in circumstances such that it would be in the child’s best interests for that to occur. In these circumstances, where a court has made consent orders on the basis that it is in the child’s best interests to spend time with her father, I am not of the view that it would be in the child’s best interests to overturn those orders by suspending them on the limited evidence available.

16. I am of the view that it is in the child’s best interests to immediately recommence spending time with her father and that that time be gradually increased and be supported by therapy being provided to the child.  

17. Accordingly, I propose making orders similar to those sought by the father, but on a more gradual basis than he proposes. I also make the order in relation to therapy as proposed by the Independent Children’s Lawyer and the orders sought by the father in relation to paternity testing for the younger child.

I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 28 November 2014.

Legal Associate: 

Date:  25 November 2014