Zaccardi and Zaccardi

[2019] FamCA 39

FAMILY COURT OF AUSTRALIA

ZACCARDI & ZACCARDI [2019] FamCA 39

FAMILY LAW – CHILDREN – Interim Parenting – Where there are competing applications for time with the child – Where the mother has ceased the child’s contact with the father – Where the mother seeks a no-contact order – Where the father seeks a reinstatement of supervised time with the child – Where an Apprehended Violence Order has been issued for the protection of the mother, the child, and the maternal grandmother from the father– Where the father was found guilty of assault occasioning actual bodily harm of the mother – Where the father has recently been charged with possession of ammunition and stalking/intimidation charges – Where the father alleges these accusations are deliberately false - Where the seriousness of allegations pose too high a risk to the mother and child – Where supervised contact will not ameliorate that risk – Orders made for no contact. 

Family Law Act 1975 (Cth) ss 4AB, 60CC

APPLICANT: Ms Zaccardi

RESPONDENT: Mr Zaccardi

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: SYC 5365 of 2017

DATE DELIVERED: 1 February 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 25 January 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT:	Dimocks Family Lawyers
COUNSEL FOR THE RESPONDENT:	Mr Campton SC

SOLICITOR FOR THE RESPONDENT:	The Norton Law Group
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mark MacDiarmid Family Law Specialist

Orders

IT IS ORDERED, PENDING FURTHER ORDER

1. That the operation of Orders 15 and 16 made 5 June 2018 in relation to the child X born … 2016 be suspended.

2. That the child spend no time with the father.

3. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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 Zaccardi & Zaccardi 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 SYDNEY

FILE NUMBER: SYC 5365 of 2017

Ms Zaccardi

Applicant

And

Mr Zaccardi

Respondent

REASONS FOR JUDGMENT

1. Ms Zaccardi (“the mother”) and Mr Zaccardi (“the father”) are the parents of X who was born in 2016 and is just three years old.

2. The parents, who had lived together in the granny flat attached to the wife’s parents’ home in Suburb B, separated under one roof in May or mid-July 2017. In August of 2017, the father vacated the home, with the mother and the child remaining in there. The father moved to a house owned by his parents, next door to his parents’ home, in Suburb C.

3. Proceedings in relation to the child commenced in the Federal Circuit Court of Australia on 18 August 2017. The father, who was the applicant, sought urgent parenting orders allowing the child to spend time with him.

4. The mother, in her response, did not oppose the child spending time with the father and sought, in addition, orders relating to financial matters. The mother, in her affidavit, raised allegations of family violence perpetrated upon her by the father.

5. Orders were made by consent on 28 August 2017 which provided for the child to have time with the father supervised by a professional agency, D Group for two one-off periods, each of one hour and for recurring three hours on Sundays.

6. On 26 September 2017, the matter was again before the Court. Supervision continued.

7. On 5 October 2017, orders were made for the preparation of an expert’s report by Ms E, a clinical psychologist.

8. On 11 December 2017, orders were made specifying the place where supervised contact was to occur.

9. On 15 February 2018 further procedural orders were made by consent, specifically permitting the provision to Ms E of copies of a final Apprehended Violence Order (“AVO”) and authorising the parties to inform Ms E that the father had been convicted of assault occasioning actual bodily harm on the mother.

10. Ms E’s report was released on 26 February 2018. Ms E expressed concerns about the reliability of the mother’s allegations of family violence and stressed the importance for the child to have an evolving relationship with his father in the context of his developmental age.

11. On 19 April 2018, further orders were made, including an order that the father file and serve an affidavit in relation to a loan made by him to Mr F, a long-standing friend of the father, of some $739,000 which had previously not been disclosed.

12. On 28 May 2018, there was an interim hearing and orders were made on 5 June 2018. Those orders provided, inter alia, for the child to have unsupervised time with the father, initially, for four weeks on Sunday for three hours and for two hours on each of Tuesday and Thursday. After four weeks, the time on Sunday was extended to a full day. The father was restrained from bringing the child into contact with his brothers.

13. In July 2018, the matter was listed for final hearing in February 2019.

14. In October 2018, the matter was transferred to the Family Court of Australia where it was listed for mention in February 2019.

15. The matter came before me on 25 January 2019 as a result of urgent interim applications filed by each parent. The mother sought to suspend the father’s contact with the child as a result of alleged threats to harm her, the child and the maternal grandmother. The father sought to reinstate that time that the mother had unilaterally stopped.

16. Both parties were represented and an Independent Children’s Lawyer (“ICL”) appeared for the child.

THE ALLEGATIONS

1. Because family violence is central to this determination, and because the matter is heard on the papers, without the opportunity for the evidence to be tested, I propose to set out the allegations of family violence.

2. The allegations were helpfully summarised by the ICL in his case outline. These are allegations only and each allegation is denied by the father.

3. It is the father’s case that the mother and Mr F have fabricated allegations of violence, in the mother’s case to prevent him from having a relationship with the child and, in the case of Mr F, to gain some financial advantage in relation to money lent to him by the father.

4. The mother alleged an incident in July 2011 where the father wrapped his fingers around her arm and caused bruising. The father denies this occurred.

5. The mother alleged that the father punched her in the chest in October 2011 when she refused to allow him to look at her phone. The father denies this occurred.

6. The mother alleged that after the child’s birth, the father physically intimidated her and pushed her over about monthly. The father denies this occurred.

7. The mother alleged that in June or July 2016, the father pushed her and she hit her head on the wall. The father denies this occurred.

8. The mother alleged that the father sexually assaulted her on two occasions between July and September 2016. The father denies this occurred.

9. The mother alleged that in January 2017, the father tossed the child onto a canopy above the ground. The father denies this occurred.

10. There was an incident in May 2017 where the mother alleged that she was assaulted by the father. The father denies this occurred. In the subsequent criminal proceedings, the father said that, in so far as physical contact occurred on that occasion, it was accidental. The mother sought treatment at G Hospital. The father was charged with assault.

11. The mother alleged that in June 2017 when they argued about the child, the father threatened her “I will rain hell down on you and your family”.  The father denies this occurred.

12. The police were called to an incident in August 2017 during a changeover of the child. There are conflicting versions of that event and the police records are not in evidence.

13. In 2018, the father was convicted, after a defended hearing, of assault on the mother, occasioning actual bodily harm, arising out of the incident in May 2017. He was sentenced and placed on a bond for 12 months. Also in January 2018, an AVO was made by consent for 12 months for the protection of the mother.

14. Mr F alleges that, in December 2018, he had a conversation with the father in which the father threatened the maternal grandmother. The father expressed the view that she was driving the parenting dispute and that, if the maternal grandmother were “sorted out” the parenting proceedings could be resolved. Mr F alleged that the father threatened to have the maternal grandmother kidnapped or “Maybe go in to the house and kill her”.

15. Mr F alleged that, later the same evening, the father, in a separate conversation after the father had returned the child from a contact visit, said “We have to go and sort out this shit... Tonight there will be blood on the streets”.

16. Mr F alleged that, on the following morning, he collected the father at about 7am, the father had a black backpack and told Mr F that there was a “piece” in the bag. Mr F understood “piece” to mean a gun. Mr F alleged that when he and the father arrived at Mr F’s place of work at Suburb H, and they were still in the car, the father showed him, from his bag, a machete and said “I used it to cut a guy’s fingers off”.

17. Mr F deposed that the father asked to borrow a car to, “carry out work”, saying that the mother and her family would recognise his car. Mr F alleged the father pointed a gun at him.

18. Mr F deposed that the father, having got out of the car, took a package from the front passenger seat which contained a quantity of bullets.

19. Mr F telephoned the mother and told her what had occurred. She contacted the police who removed her to a place of safety. The mother deposed that Mr F told her that the father “is in [an association]. He has had [associates] following you from your home... He is also fixated with your mother and wanted her gone the most”.  The mother deposed that Mr F told her that the father was using cocaine and injecting peptides and “I reckon he has been planning to get rid of you for some time.”

20. Mr F called the police who attended at the Suburb H premises.  The father was inside. The police found a black backpack and another black bag hidden in a wall cavity. The backpack contained a metal pipe with an attached right angle joint approximating the shape of a hand gun. The other bag contained a machete. The police also found a bag containing 44 rounds of .32 calibre ammunition.

21. The police found, on the father’s phone, photographs of a hand gun sent to him by his nephew and a photograph of a large hunting knife also sent to him by his nephew.

22. The father was charged with possessing ammunition and stalking/intimidation with intent to cause fear of physical or mental harm.

23. In late 2018, the father was granted bail with thrice weekly reporting conditions. He is required to comply with a curfew. It was a condition of bail that he comply with the AVO.

24. In January 2019, the father’s nephew surrendered to police a replica hand gun that had been allegedly photographed by him and sent to the father.  

25. In early 2019, the Local Court varied the terms of the AVO granted in 2018. The father was restrained, inter alia, from attempting to find the mother and from approaching the mother or the child or their residence. The “Advice of Court result” issued by the Local Court states that the Local Court suspended the operation of the contact orders made by the Federal Circuit Court of Australia on 5 June 2018.

26. The police also applied for an AVO for the protection of the maternal grandmother.

27. When the matter came before the Court on 25 January 2019, the mother and the child were still living in sheltered accommodation.  

DISCUSSION

1. The allegations made in the mother’s case are serious. If they are ultimately made out, the consequences for the child and his ongoing relationship with the father will likely be that they will not continue to see one another. If it is ultimately found that the allegations have been fabricated by the mother, the consequence may be a change in custody.

2. However, it is not possible, without extensive cross-examination and the collection and tender of documentary evidence, to determine the strength of the allegations or the weight which should be attributed to them.

3. In the meantime, the court must determine what arrangements are in the child’s best interests based on an assessment of the allegations.

4. Section 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) provides that the primary considerations 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.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

5. In the present case, there is an allegation that the maternal grandmother and the mother are in grave risk of physical harm or death. Section 4AB of the Act defines family violence:

   (1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

6. It is not necessary that the child hears or is aware of the threats of violence for the provisions of s60CC(2)(b) of the Act, to apply. It is difficult to envisage a more serious example of psychological harm to a small child than the murder of his mother or his grandmother.

7. The Act requires that the risk posed by the alleged threats be given priority over the benefits to the child of an ongoing relationship with his father, the alleged perpetrator. If these allegations are made out, the risks are real and very serious.

8. Senior counsel for the father submitted that any concerns about the child’s safety could be alleviated by supervision by the paternal grandparents who gave the Court appropriate undertakings.

9. I do not accept that submission.

10. Until such time as the allegations have been properly examined, any contact that has the potential to expose the whereabouts of the mother to the father adds to the risk, whether because of something said by the child or because the mother could be followed from the venue where the child is collected by the paternal grandparents.

11. I am conscious of the father’s protestations that the allegations are false and deliberately false.

12. However, this is not a case where the allegations come from nowhere or where they are inherently improbable. The mother has complained of a course of violence from 2011. The father has already been convicted of assault occasioning the mother actual bodily harm. Weapons and ammunition were found. The police have found sufficient grounds to charge the father. The Local Court has imposed bail conditions which embody the terms of an AVO.

13. Further, questions arise about the transaction between the father and Mr F whereby the father lent some $739,000 to Mr F, apparently without security. Whether the loan was documented in any way is not clear, although it appears that Mr F has acknowledged the debt. No doubt the father, in due course, will explain where the money came from, why he trusted Mr F with such a substantial sum and why that trust, on his case, has been abused.

14. In the meantime, the risk to the mother, and indirectly to the child, is sufficiently serious that no supervision, even professional supervision, can ameliorate it.

15. The orders for contact will be suspended. 

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 1 February 2019.

Associate:

Date:  1 January 2019