Yalpat and Yalpat (No 2)

[2019] FamCA 171

FAMILY COURT OF AUSTRALIA

YALPAT & YALPAT (NO. 2) [2019] FamCA 171

FAMILY LAW – CHILDREN – With whom a child spends time – Interim orders – Inconsistency with Family Violence Order – Handover location.

Family Law Act 1975 (Cth)

APPLICANT: Mr Yalpat

RESPONDENT: Ms Yalpat

FILE NUMBER: CAC 1305 of 2018

DATE DELIVERED: 22 March 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 19 March 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Infinity Legal

Orders

1. The orders of 8 February 2019 are discharged.

2. That until further order and unless otherwise agreed in writing, including writing by text message:

   (a)X, born  in 2017, shall spend time with the Father each Monday, Wednesday and Friday, subject to the following arrangements:

   (i)Between 2pm and 5pm unless the Mother nominates that the time shall take place between 1:30pm and 4:30pm provided such nomination, to be made in writing, is provided to the Father at least no later than the end of the week prior to the nomination taking effect;

   (ii)The nomination referred to in the immediately above order will continue to take effect until a further nomination is made under the same conditions;

   (iii)The collection and drop-off point for X is the M Day Care at L Street, Suburb N

   (iv)The Father is to attend the M Day Care for the purposes of collection and dropping off of X no earlier than ten minutes prior to the collection time and no later than ten minutes after the drop-off time.

IT IS NOTED THAT

1. The order for the collection and drop-off of X at the M Day Care is inconsistent with Order 1(d) of the Interim Family Violence Order made by the Magistrates Court of the Australia Capital Territory in March 2019.

2. By means of explanation of the effect of the order that is inconsistent with the Family Violence Order, the order allows the Father to attend at the M Day Care for the purposes of collection and delivery of X in accordance with these orders, despite the fact that the Mother's workplace is less than 100m from the day care centre and the Mother may be within 100m of the day care centre at the time of the collection or dropping off of X.  If the Father is at the day care centre in accordance with the above order he will not be in breach of the Interim Family Violence Order.  If the Father is at the day care centre other than in accordance with the above order he may be in breach of the condition not to approach within 100m of the Mother.

IT IS ORDERED THAT

1. I direct that the Canberra Registry of the Family Court of Australia give copies of these orders to the persons identified in s 68P(3) of the Family Law Act 1975.

2. I direct that the parties attend at, and bring X to, a Child Inclusive Conference on 17 June 2019 (unless such date or times are varied by the Family Consultant) in accordance with the following directions:

   (a)The Mother is to attend with X the Child Inclusive Conference at the Canberra Registry of the Family Court of Australia at 9:30am on 17 June 2019.

   (b)The Father is to attend the Child Inclusive Conference at the Canberra Registry of the Family Court of Australia no earlier than 9:50am and by no later than 10am on 17 June 2019 and is to follow such directions in the conduct of the Child Inclusive Conference as are given to him by the Family Consultant.

   (c)The Mother is to remain at the Child Inclusive Conference and follow such directions as are given to her by the Family Consultant until told by the Family Consultant that she may leave and remove X from the Child Inclusive Conference.

IT IS NOTED THAT

1. Should a party fail to comply with the directions in respect of attendance at and conduct at the Child Inclusive Conference then that party is on notice that such failure may result in an adverse inference being drawn against the party in future proceedings.

IT IS FURTHER ORDERED THAT

1. It is directed that the Canberra Registry of the Family Court of Australia provide an interpreter in the Country B language for the purposes of the Child Inclusive Conference.

2. Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for X, also known as X, born in 2017 and the Legal Aid Commission of the Australian Capital Territory is requested to provide such representation.

3. The parties are to provide to the Canberra office of the Legal Aid Commission of the Australian Capital Territory at 2 Allsop Street Canberra City ACT 2601 or GPO Box 512 Canberra ACT 2601 forthwith copies of all documents thus far filed by them in these proceedings.

4. Leave is granted to the Independent Children’s Lawyer to issue such subpoena as they consider relevant to the issues before the Court.

5. Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.

6. Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.

7. The matter is adjourned for further interim hearing for a period of two hours at 10am on 16 July 2019.

8. It is directed that the Canberra Registry of the Family Court of Australia provide an interpreter for the purposes of the interim hearing on 16 July 2019.

9. In the event that either the Mother or Father seek to vary the arrangements for the Father to spend time with X then the Mother or Father is required to file and serve any such application and supporting affidavit material no later than 14 days in advance of the hearing date.

10. Should a party file such an application than the other party is entitled to file material in response no later than seven days prior to the hearing date.

11. In the event that the Father seeks directions as to the translation of Court documents into the native language then he is to file and serve any application in relation to that matter and any supporting material in relation to that matter within 28 days of today's date and the Mother is to file and serve any material in response within a further 14 days and a further date will be allocated for the hearing of such application.

12. The Mother's costs of the Application in a Case filed 6 March 2019 are reserved to the trial of the matter.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1305 of 2018

Mr Yalpat

Applicant

And

Ms Yalpat

Respondent

REASONS FOR JUDGMENT

1. Interim orders were made on 8 February 2019 in order for the Father to spend time with his son X each Wednesday from 5 pm to 6:30 pm, each Saturday from 11 am to 1 pm and each Sunday from 11 am to 1 pm.  These orders were made in the context where X was not yet two years of age and the Father had spent very little time with X in the previous year.

2. It was relisted at that time for further hearing on 19 March 2019 in a manner that allowed for an application as to a change in this arrangement to be made.  The Mother filed an application, the Father did not.  He did not file any material until shortly before 19 March 2019 and did not serve it upon the Mother until the morning of Court.

3. It his material the Father complained that the documents that had been served on him by the Mother were not in her native language.  There was no order requiring her to do so.  The default position is the documents will be filed and served in English.  If the Father seeks otherwise, I will give him the opportunity to file an application in order for further directions to be made in relation to this matter.

4. While the Father claimed that he had inadequate English skills to deal with the written documents served upon him, his responding material which demonstrated an understanding of the Mother's allegations and answered those allegations persuaded me that he has sufficient written command of the English language as to not make his participation in the interim hearing unfair.  At the interim hearing he had the assistance of an interpreter.

5. The Mother seeks a change in the time arrangements from what they currently are such that they would become the Father spending time with X each Monday, Wednesday and Friday from 2 pm to 4 pm with changeover to occur at X’s childcare, M Day Care, L Street, Suburb N in the ACT which is a childcare facility adjacent to the Mother's workplace.

6. Exhibit M1 in these proceedings was an Interim Family Violence Order made on 7 March 2019 on the Mother's behalf against the Father.  That order contains provisions which prohibit his attendance at the childcare unless pursuant to an order made under the Family Law Act.  It also prohibits the Father being within 100m of the Mother.  Given her workplace is next door to the childcare centre her application requires that there be a part-overwriting of those orders.  She agrees to such a course.  The Father's attendance at the childcare at given times pursuant to Court orders will not prejudice her safety or the other operation of the orders as during the times identified for the Father to attend the Mother will have the security of her workplace.  Under those circumstances, it will be appropriate to make an order that operates inconsistently with and overrides part of the operation of the Interim Family Violence Orders.

7. It is appropriate to deal firstly with the question of the change in the location for the time that the Father spends with X.

8. The Mother says that the basis for such a change is found in what she describes as aggressive and threatening behaviour by the Father to the mother and to her support person (Mr Q), both in the presence of X and outside the presence of X during changeovers as provided for under the current orders.

9. These include on 17 February 2019 the Father causing the Mother to attend upon him during his time with X on the basis that X was ill.  He was not ill.  The Mother asserts that the Father used this as a pretext to communicate to her that she should settle the Court proceedings and that there was no necessity for the Court proceedings.

10. The Mother alleges a further incident on 3 March 2019 during which time she says that the Father was yelling at Mr Q.  She also alleges Father made a false report to the police regarding herself and Mr Q.

11. The Mother also complains that the Father has sent her texts alleging that X was injured in her care, that he sent correspondence to her solicitors seeking the service of a personal protection order upon Mr Q and that he has sent correspondence to her solicitors regarding Facebook posts made by the Mother, which she characterises as stalking.

12. The Father, on the other hand, alleges that he has been provoked and recorded by Mr Q, who he says is the Mother's boyfriend, during handovers.  He alleges that X’s eye was bruised on 25 February 2019.  He says that his reference to the Facebook post is to an image related to the sale of a toy that he purchased for X but was being sold by the Mother.

13. There is conflicting evidence therefore about the handovers and as to who is the aggressor in relation to the handovers.  That is unable to be resolved at this stage of these proceedings.  It may be taken as settled that, whoever is the cause of the difficulties, the current state of affairs in relation to handovers exposes X to conflict and to potential family violence and should not continue.  Handovers should ideally be without contact taking place between the parties, or contact between Mr Q and the Father.

14. To that end a handover at childcare appears to be the ideal arrangement.  However, the childcare facility is geographically close to the Mother's work, but not close to other facilities at which it might be appropriate for the Father to exercise time with X.  The Father alleges that he has no car.  This may operate as an impediment to handovers happening at the childcare, although he also asserted that he would agree to such an arrangement provided it involved overnight time.  He said that he would be able to source transport in such an instance.  It is not apparent that any lack of motor vehicle has proven to be an impediment to him spending time with X to date, despite the distance between his home in Suburb K and the previous handover point in the city.  On the basis of his position in the event that he had overnight time, his assertion that he should have full-time care of X, and on the history of the lack of impediment to him engaging in the time with X in the city I anticipate that the alleged lack of a vehicle is unlikely to be an impediment to him in the new arrangements.

15. Under those circumstances it is appropriate that the handover occur at the childcare centre.

16. Consideration must then be given to the amount of time that the Father will spend with X.  While he seeks overnight time such a change would be an abrupt change where X has had only a small amount of time with his Father under the current orders following spending no significant time with him for the previous twelve months.  It would be unhelpful to X if his time with and relationship with his Father was prejudiced by such an abrupt increase.

17. However, the change in handover location calls for some change in the arrangements for the time that X is to spend with his Father given the somewhat remote nature of the childcare centre.  In relation to this matter it may be observed that there are few problems identified in X’s time with the Father despite it being what is effectively a reintroduction period.  Some complaint has been made in relation to the asthma medication for X, although not in the context of X having required the asthma medication.  The question was raised as the Father's capacity to read the asthma plan which has been provided to him.  I do not doubt that the Father is able to read and understand such a document given the documents that he has prepared in these proceedings.  The fact that the Father has contacted the Mother on a number of occasions regarding the asthma medication does not cause me to doubt that he is able to implement the asthma plan if necessary.

18. The Mother sought an order that X’s Father to attend upon X’s general practitioner in relation to the asthma plan.  For reasons which were difficult to comprehend the Father opposed such a course on the basis that he was able to understand the asthma plan without recourse to a general practitioner.  He accepted that there would be benefit to him attending upon the general practitioner to understand X's health generally and appeared to accept that he was willing to do so.  An order should be made to support his attendance upon the general practitioner so he better understands X's needs.

19. Should he fail to do so, this may raise questions about the priority that he gives to X’s well being.

20. While the Father appeared to emphasise his rights in respect of X, it should be understood that the focus of the Act is on X’s best interests and not the rights of either of the parents.

21. The relative lack of complaint about the time that the Father has spent with X is suggestive that the matter is now ripe for a moderate increase in his time, although not of the magnitude sought by the Father.  An increase will assist in promoting a meaningful relationship between X and his Father within the context of the limited relationship that they have so far.

22. Given the success of the two-hour periods that have currently been in place, and the difficulties that may occur with the slightly more remote place for handover, it is appropriate to transition X’s time such that there be 3 x 3 hour sessions each week on the basis that X is collected from and delivered to childcare.  The Mother had proposed two-hour sessions to take place between 2 pm and 4 pm.  In substitution for that orders will be made that will for a period of time to take place between 2 pm and 5 pm, or alternately 1:30 pm and 4:30 pm with the choice of timing to be at the Mother's election, provided such election takes place no later than the week before visits are to take place.

23. This enables the Mother to adjust the time to a small degree to best suit X.

24. While the Mother sought that the Father enrol in and undertake an anger management course there was no sufficient evidence to support such a course of action, or to identify such a course. 

25. The Mother sought the parties attend upon a Child Dispute Conference.  Orders will be made to support their attendance and compel their attendance at a Child Inclusive Conference in order to enable some observation of the interaction between X and his parents.

26. Given the difficult and international issues arising in this case it is appropriate that an Independent Children’s Lawyer be appointed and one will be requested.

27. On her application the Mother's costs in this matter will be reserved to the final hearing.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 22 March 2019.

Associate:

Date:  22 March 2019