Sanchez and Huerta Veloz

[2012] FamCA 817

FAMILY COURT OF AUSTRALIA

SANCHEZ & HUERTA VELOZ [2012] FamCA 817

FAMILY LAW – CHILDREN – Interim Parenting– Father’s application to spend time with children and for equal shared parental responsibility – Mother granted sole parental responsibility for the children and an order for the children to live with her – Father granted supervised time with children at a contact centre and telephone contact – Allegations of family violence – Section 60CC(3)(f) as to the father’s capacity a major additional consideration

Family Law Act 1975 (Cth)

APPLICANT : Ms Sanchez

RESPONDENT: Mr Huerta Veloz

INDEPENDENT CHILDREN’S LAWYER: Ms Kyle

FILE NUMBER: PAC 5219 of 2011

DATE DELIVERED: 10 August 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 10 August 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Weber

Legal Aid NSW Liverpool Family Law

SOLICITOR FOR THE RESPONDENT:

Mr Putius

Lex Fori Lawyers

SOLICITOR AS INDEPENDENT CHILDREN’S LAWYER

Ms Kyle

Smythe Wozniak Solicitors

Orders

1. That any existing orders in respect of the children, J born … July 1999, S born … July 2001, L born … May 2005 and N born … January 2009, shall be and are hereby discharged.

2. That the mother shall have sole parental responsibility for each of those children.

3. That the said children shall live with the mother.

4. That within seven (7) days of these orders the parties are each to telephone Contact Centre C, the telephone number for which will be provided to the father, and thereafter do all things, sign all documents and comply with all directions of the Contact Centre’s procedures to place the family on the Contact Centre’s waiting list.

5. That upon the parties having complied with the foregoing order, the children shall spend time with the father at the Contact Centre, for such time as the Contact Centre can make available but if at all possible, not less than two (2) hours per fortnight, at such times as may be agreed between the parties and the Contact Centre or as directed by the Contact Centre.  The decision of the Contact Centre is to prevail over any agreement of the parents.

6. The father is to be responsible for payment of all fees associated with the use of the Contact Centre and I note that the place that the parties are hoping to receive is one where the fees would be subsidised.

7. That the father shall have telephone communication with the children between 7.00 pm and 7.30 pm each Wednesday.  The father is to call the mother’s mobile. 

8. That the mother is to ensure her mobile phone is switched on, is charged and is able to accept calls that the father places.  The mother is not to remain in the vicinity of the children whilst they are speaking with the father at this time.

9. That in the event the children are not with the mother on a Wednesday night for any reason then the mother is to ensure the children have her telephone with them so that the call can be received. 

10. That the Memorandum prepared by Ms D on 17 February 2012 shall be released to any counsellor working with either of the parents and the children pursuant to these orders.

11. That the matter may be relisted no less than seven (7) days after the report ordered on 29 June 2012 has been made available to the parties.

12. That the liberty to restore, previously granted upon seventy-two (72) hours notice, shall be continued.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sanchez & Huerta Veloz 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 5219 of 2011

Ms Sanchez

Applicant Mother

And

Mr Huerta Veloz

Respondent Father

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction & Background

1. This matter concerns the interim arrangements that are to be made for the parties’ children – J, born in July 1999, S, born in July 2001, L, born in May 2005 and N, born in January 2009.  

2. A brief history of the matter is as follows:- 

   ·The mother was born in 1976 and the father in 1979. 

   ·The parties’ commenced cohabitation in 1997 or 1998, depending on which party’s version is accepted. 

3. The mother asserts that the father was known to drink alcohol to excess.  It is the mother’s case that the parties’ relationship was of an on and off nature.  In any event, during their relationship, the parties’ four children, who I have made reference to, were born.

4. As I understand it, the parties finally separated in August or September 2009.  The father left the country at that time.  He says that the parties formally separated in about September 2009 and the mother moved from premises at B to premises at H in early 2010. 

5. It appears that between September 2009 and September/October 2011 there was an informal arrangement between the parties concerning the children.  As I understand it, that arrangement was flexible and the parties continued to be at least on talking terms.  As I understand it, there was an incident that occurred on 30 October 2011 at a time when there was to be a changeover of the children at the mother’s residence. 

6. The matter came before me first on 28 November 2011 at a time when the eldest and youngest children were with the father and the middle two children were with the mother.  The mother, at that stage, had not seen the youngest child for a period she said to be in excess of one month.  On that occasion, I made Orders that a report be prepared by a Family Consultant of this Registry, that the matter be placed in the Less Adversarial Trial pool. 

7. I ordered that pending further order, the children were to live with the mother and spend time with the father from 12.00 noon on Sunday to 4.00 pm on Wednesday.  I further ordered that an Independent Children's Lawyer be appointed. 

8. The matter was back before me on 1 December 2011.  On that occasion, there was no appearance by the father.  It was the mother’s case that the children had not been returned in accordance with the Orders made on 28 November 2011.  I suspended the father’s time with the children and restrained the father from removing the children from their schools. 

9. On 6 December 2011, I understand an interim Apprehended Violence Order was made in the Local Court for the mother and all four children’s protection as against the father. 

10. On 8 December 2011, the matter was again before me for mention and a solicitor appeared with the father.  On that occasion, I listed the matter for interim hearing.  I continued the father’s time with the children – that is, 12.00 noon Sunday to 4.00 pm Wednesday, and restrained the father from approaching within 500 metres of the mother’s residence other than for the purpose of changeover. 

11. On 20 December 2011, a further Apprehended Violence Order was made in a Local Court.  The mother then complains that there were a series of episodes involving the father and at times, the police.  The mother says that for the period between that date and the 19^th of January when a Final Order was made in the Local Court, the father was not prompt in returning the children, and indeed, retained the children for periods longer than he was permitted to have them pursuant to the Orders of 28 November 2011. 

12. The matter was back before me on 1 February 2012.  The father did not appear.  His then solicitor sought and was granted leave to withdraw.  The Family Consultant was called and gave short evidence.  I then ordered a recovery order issue, to lie in the Registry, and suspended the father’s face-to-face time and communication with the children. 

13. On 9 February and 2 March 2012, the matter was back before me again.  The father did not attend on either of those occasions.  On 3 April 2012, the matter was before me.  The father attended, but late.  On that occasion, he sought an adjournment to obtain new solicitors.  I granted him that adjournment and directed him to file documents by the 16^th of May. 

14. On 14 May 2012, solicitors filed a Notice of Address for Service on behalf of the father, and on the 16^th of May, the matter was again back before me.  A solicitor appeared by telephone for the father, whom sought and obtained a further adjournment and I made further directions for the father to file his affidavit material. 

15. On 28 May 2012, that solicitor went off the record.  On 31 May 2012, the matter was back before me again.  The father was at Court and was assisted by a duty solicitor.  I made orders following the delivery of a short Judgment that discharged all existing Orders and ordered, pending further order, that the mother was to have sole parental responsibility and the children were to live her.  I ordered that in the event the father was not in a position to proceed on the next occasion, those interim Orders might well be converted into final orders.  The matter was then subsequently adjourned.    

16. On 28 June 2012, the father filed a Response, a Notice of Child Abuse or Risk of Family Violence (which I note has now been withdrawn), and his current solicitors came onto the record.  On the 29^th of June, the matter was before me.  The father’s new solicitor – that is, the solicitor who has appeared before me today – appeared, and as the father had filed his material, I listed the matter for an interim hearing today.

17. Also on 29 June 2012, I made orders as requested and pressed upon me by the father that he have telephone communication with the children.  Indeed, those telephone Orders were the subject of some short cross-examination of the father today.  I will return to that shortly in these reasons for Judgment. 

The parties’ materials

1. The application before me today is that of the father.  He seeks to rely upon his Response filed 28 June 2012 and his affidavit sworn and filed 28 June 2012.  At the commencement of the hearing, I was handed a short minute of the order sought by the father.  Briefly, he seeks that the children are to reside with the mother other than when they spend time with the father, which is specified in those orders to be from 5.00 pm Friday to 5.00 pm Sunday each alternate weekend, and on the intervening Thursday from 5.00 pm to 8.00 pm.  There are further orders sought suspending those orders during school holiday periods.  There are orders sought involving telephone contact between the father and the children.  There are orders sought as to responsibility for the children whilst they are with either parent.  There is then proposed an order that the parties to share equal parental responsibility for various aspects of the children’s upbringing and living arrangements. 

2. The mother relies upon her material in this matter as follows:- there is a minute of order as proposed by the mother.  There is her Application in a Case filed 25 January 2012, her own affidavit of 10 July 2012, filed that same day, and she seeks to rely on earlier material filed in relation to the matter. 

3. The mother proposes the children should live with her, that she should have sole parental responsibility for them, that there should be some telephone contact between the father and the children, and that the children should spend limited time with him at a contact centre.  That position is very much, as I read it, the position of the Independent Children's Lawyer.  In her minute, it would seem that the Independent Children’s Lawyer seeks orders in almost identical terms as those proposed by the mother. 

4. Accordingly, the position between the parents is this:- on the father’s side, that the children spend every alternate weekend with him in an unsupervised situation, and that he also have telephone contact with the children.  The mother’s position is that there should be some telephone contact, but any time face to face is to be in a supervised situation.

5. The father’s case is that the children benefit from seeing him, they have a good relationship with him and that they are in some way being adversely affected by not seeing him.  I have not made mention of it prior to this, but I have had regard to the Child Responsive Memorandum, which was prepared for the assistance of the Court by the Family Consultant involved in this matter, Ms D.  On a previous occasion, Ms D gave evidence in relation to this matter. 

6. It seems from that report, which I will accept into evidence, that the children do love their father.  The difficulty in this matter is, I am satisfied, that the father has a real inability to do two most important things:- (1) prioritise the needs of the children as against his own needs and feelings; and (2) learn to act in an organised and effective fashion so that he can, if he is given the opportunity in the future, ensure that the children’s needs are met, not merely their wishes. 

7. It seems to me, and I make this observation now, that in this family, it has been left to the mother to be the person who has been required to enforce things, such as, the children will go to school, whereas the father has been a much more lax and laissez faire parent who has effectively done exactly what the children have wished, when they have wished.  For that reason, I am satisfied the children see him as a much more lenient and agreeable parent.  In my limited experience in these matters, it is often the case that children prefer the parent who takes the line of least resistance and shows them the good times, whilst not recognising – because they are children – the difficulties that beset the other parent who is then cast in the role of the decision maker, the disciplinarian, the enforcer and the general “bad guy”.  To my mind, that is fairly obviously what has happened to date in this matter. 

8. I have already mentioned the father not being able to put his own needs aside for those of the children, and to my mind, the perfect example of that is the way in which he dealt with the telephone calls.  He pressed me on 29 June to give him time to speak with the children by telephone.  I did this.  He said two telephone calls occurred and then, to use my words, the concept of having to speak to the children for only a limited time overwhelmed him.  He found he was unable to contact the children on the occasion of one of the children’s birthdays.

9. I find it very difficult to understand why it was not possible for him to ring his son on his birthday at a time when his siblings, their mother and the father’s own parents were present in the household where that party was being celebrated.  However, it appears that the father’s feelings of hurt were such that they overcame what might be called his better judgement, and it became his hurt and his distress that took priority over what might be seen to have been best for the children.

10. I am told by his solicitor who, if I might say so, has done everything and said everything that can be said today, that his client is learning.  I find it very difficult to see any inkling of that in these proceedings.  It has been the father’s own inaction that has led to the Court taking away from him almost equal time with the children.  In fact, the Court granted him that time on two occasions, but on each occasion, because of his actions or inactions, as I say, those Orders were suspended and/or discharged and he was left with no time with the children. 

The law to be applied

1. The question now is what is to be best done to meet the needs of these children.  The proceedings before me today are parenting proceedings.  Accordingly, there are sections of the Family Law Act 1975 (Cth) to which I must have regard. The first of those sections that I consider of importance is section 60CC, which tells me in subparagraph (2) the primary considerations that I must have regard, to and they are (a) the benefit of the child having a meaningful relationship with both parents subject to (b) the need to protect the child from physical or psychological harm.

2. I am then given a number of additional considerations in section 60CC(3) to which I must further have regard.  The first of those:- any views expressed by the children and factors underlying those view (subparagraph (a)).  There is no doubt that the children express that they love their father and, so far as the older children are concerned, a wish that perhaps they might live with him.  I have already said what I would wish to say about the children finding more pleasure in their father who, I am satisfied, lets them do almost entirely as they please when they are with him as against in what they clearly perceive as the more structured and disciplined household of their mother.  Accordingly, I am satisfied the wishes of the children and their views must be looked at in the light of those factors. 

3. The nature of the relationship between the children and each of their parents (subparagraph (b)).  The children clearly have a good relationship with the mother.  She has been the person who certainly, since the beginning of this year, has been primarily concerned with their upbringing.  The children, it appears, may well view their mother as the more disciplinarian of their parents.  They may see her parenting to be stricter than that of their father. 

4. During a period of the parties’ separation from 2009 to late 2011, I am satisfied that the children saw a good deal of each parent and that they love each of their parents. 

5. So far as the willingness and ability of each of the parents to participate and encourage a close and continuing relationship between the children and the other parent (subparagraph (c)), the mother has certainly, at times, sought to limit the father’s time with the children.  However, in my view, that has not been inappropriate regarding to the way in which the father has chosen to act in these proceedings. 

6. The likely effect of any changes in the children’s circumstances (subparagraph (d)) would mean, on the father’s application, they would commence to spend significant time with him away from the mother and with no form of supervision by any third party.  To my mind, the effect of that change might well bring the children some pleasure, but might well involve them in other episodes where their father, for whatever reason, cannot get them to school, cannot ensure they do things that are normally required of them and, in effect, lets the children tell him what will happen rather than him telling the children what will happen. 

7. The mother, on the other hand, I am satisfied, will not have those problems.  Therefore, any change to spending more time with their father could be, in my view, something that would not be to their immediate benefit.  I understand that the orders that are proposed by the father would not have him involved in getting the children to school, but my comments generally have application.

8. The practical difficulty and expense of the children spending time with each parent (subparagraph (e)) is not a problem in this case.  The parties can either deliver and collect or attend upon a contact centre without any practical hardship to either of them. 

9. The capacity of each of the parents is the next relevant s60CC(3) factor (subparagraph (f)).  I am satisfied that the mother has a proven capacity to care for these children and to raise them in a structured household of herself and four children.  I am not satisfied that the father has a similar capacity.  I am satisfied that that which has occurred in the past indicates to me that he leads a very, very disorganised lifestyle; a lifestyle in which he has enough trouble organising himself, that his organisation of the children is, at best, hit or miss.

10. I am satisfied that the attitude to the children and the responsibilities of parenthood (subparagraph (i)) are such that each of the parties love the children and wish to do the best for them.  However, I am not satisfied that the father has a proper appreciation at this stage of what is required of him, and of the responsibilities imposed upon him as a father of children. 

1. As to the issue of family violence (subparagraph (j)),  I am satisfied that there has been family violence in this relationship and I am satisfied that the existence of the Apprehended Violence Orders are something that I can rely upon to satisfy myself that family violence has been a factor in this family. 

2. I turn then to the next section which I must consider.  That is section 61DA, which deals with equal shared parental responsibility.  The father contends for equal shared parental responsibility.  The mother opposes this and says that parental responsibility should be hers alone.  Section 61DA, of course, says that there is a presumption for equal shared parental responsibility.  The section says, however, that it can be found not to apply in the event of family violence and I have found family violence to exist in this marriage.

3. Further, subsection (4) says that the presumption may be rebutted upon evidence that satisfies the Court that it would not be in the best interests of the child.  Assuming I am wrong in finding equal shared parental responsibility does not apply by virtue of family violence, I am satisfied that the evidence in this case makes it abundantly clear that to ask these parties to exercise joint and cooperative decision making is, at this time, out of the question.  It seems to me that the situation gives rise to the fact that one party needs to be the person who is to make all significant decisions involving the children.  It seems to me that communication between these parents is such that even to expect that there would be discussion, let alone a sharing of responsibility, would, at this time, be out of the question.  Accordingly, I am satisfied that equal shared parental responsibility will not apply in this case. 

4. The father, by his interim application, seeks that the children spend the weekends with him and the balance of their time with the mother.  Whilst I am not saying that that is a concession that the mother should have the children live with her, it is, to my mind, an indication that the father perhaps accepts the reality of the situation.  In my view, there is only one person that these children can live with, and that is the mother.  There is only one person, accordingly, that can have parental responsibility for the children at this time, and that is the mother. 

5. I then turn to the guidance of the Act as to what is then to be done about the father spending time with the children.  Section 65DAA says that I must consider the children spending either equal or substantial and significant time with each parent.  The father’s case is that it should be, if I might describe it in this fashion, alternate weekend and some mid-week time in the intervening week.  To my mind, that would be significant time in a situation such as this.  I must also consider whether it is reasonably practicable in the situation. 

6. To my mind, the evidence that I have heard indicates to me that, for the time being, the children’s best interests are not served by spending extended and unsupervised time with the father.  In my view, the father, if he is doing his best (and I accept those are his instructions to his solicitor), needs, in my view, to show that he is a little further down the road than that.  It is to his credit that he has enrolled in various courses and it is not his fault that those courses have not as yet commenced.

7. However, I have come to the conclusion that, in the interim, it is appropriate that the time the father spends with the children should be at a contact centre.  I am not saying that will last forever.  Indeed, what I am suggesting that the father consider is that once the family report has been prepared and considering the contents of that report, the father might then be in a position to seek to revisit this issue.  However, in the meantime, orders need be made on an interim basis and I will make those orders. 

8. The orders that I make are set out at the forefront of these reasons for Judgment.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 10 August 2012.

Legal Associate:      

Date:    21 September 2012