ZARBA & LAFFREY

[2020] FCCA 3590

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZARBA & LAFFREY [2020] FCCA 3590

Catchwords:
FAMILY LAW – Parenting – father’s urgent application to spend time with the children – whether the children should spend supervised time with the father – satisfied there is a serious risk in the children spending time with the father.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR ZARBA

Respondent: MR LAFFREY

File Number: DNC 517 of 2013

Judgment of: Judge Young

Hearing date: 22 December 2020

Date of Last Submission: 22 December 2020

Delivered at: Darwin

Delivered on: 22 December 2020

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Mr Barry

Solicitors for the Respondent: Darwin Family Law

UNTIL FURTHER ORDER

1. That the children X born in 2009 and Y born in 2012 (collectively “the children”) live with the mother.

2. There is no order for the children to spend time with the father.

THE COURT ORDERS:

1. That pursuant to s.11F of the Family Law Act 1975, the parties and the children X born in 2009 and Y born in 2012 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia,  Darwin on 31 March 2021 at 9am, with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance.

2. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

3. The matter be adjourned to 27 April 2021 at 11am for further directions.

IT IS NOTED that publication of this judgment under the pseudonym Zarba & Laffrey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 517 of 2013

MR ZARBA

Applicant

And

MS LAFFREY

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an urgent application. It was listed today on basis of the father's urgent application regarding time with the children, or at least X, who is nine.  The children of the matter are Y, who is 12 years old, and X, who is nine.  Both children live with the mother in City B.

3. There were parenting orders made in 2013, I understand, which envisaged that the parents would enter into parenting orders but it appears that that has not been acted upon by the parties.  So there is currently, as I understand it, an order made by consent – and I understand there is not any subsequent order – that the parties have equal shared parental responsibility for the children; that the children live with the mother; and that the father be restrained and an injunction issued restraining him from consuming alcohol while the children are in his care or within six hours prior to the children coming to his care. They are the relevant consent orders. That, as I understood it, is the agreed position about the operative parenting orders.

4. It seems that over the years the parents have reached an agreement which saw the children at different times spending substantial and significant time with the father on an informal basis.  The mother lives in City B.  As I understand it, the father lives on a block outside City B, a reasonably large block.

5. On 19 November 2020 there was an incident.  The background, as far as I can understand it from the affidavit material, is that the father collected X – not Y – from where he was. The mother telephoned the father because she was either surprised that X had gone with the father or there was some other arrangements contemplated. Anyway, the mother telephoned the father and, according to the mother, the father was showing signs of being intoxicated. If true, that was a breach of the order made by consent.

6. The mother was clearly unhappy about that and said that she was driving out to the father's property to collect X. She drove onto the property in her car, up the driveway, towards the house, as I understand it. 

7. The father, in his own affidavit, says he told the mother to leave and get off his property.  The mother says that the language was more elevated than that and the father swore at her and, at one point, threatened to kill her unless she left.  The mother says that she refused to go without taking X with her. She says that the father was clearly intoxicated.

8. She was in her car at one point and the father then got into his car, which was a large four-wheel drive with a bull bar and drove towards the mother's car and perhaps, at low speed, I imagine, made contact with the car and, using his car, pushed the mother's smaller car some distance down the driveway.  As far as I can understand the sequence of events, the mother then got out of the car and somehow went inside the house and retrieved X, who was inside.  Whether X was witnessed this is unclear.  One would expect a nine-year-old child was very likely to witness such an extraordinary incident being played out in his home.

9. The mother took X.  He got in the car and they drove away, according to the materials before the court, particularly the police witness statements and the like.  The father took a firearm, a .308 rifle, and fired a shot or two shots at or over the car.  I think the father does not deny firing the shots.  He says he fired in the air.  X's witness statement, which was in evidence, said that he saw the father lower the rifle towards the car and then the shot or shots were fired over the car.

10. The father was subsequently charged with a variety of criminal offences arising out of that incident.  He has been charged with aggravated assault of the mother.  The aggravating factors were that she is a female and he used a firearm.  The aggravating factors with X are that he is a child and a firearm was used.  The father was also charged with discharging a firearm while intoxicated, criminal damage in relation to the car, keeping firearms unrestrained and the like.

11. The father says he will plead not guilty to the assault of X and the mother and some of the other charges. He does not appear to be pleading not guilty to keeping firearms unrestrained. The police seized the firearms in the father's possession and that remains the case. 

12. The father was bailed and his bail conditions are that he is not to go to City B and he is to reside at Town C at the Region D residence in Town C.  In other words, he is to leave his home outside City B.  He is not to consume alcohol.  There are various other bail conditions.  There was, in addition, a domestic violence order made for the protection of the mother and the two children against the father.

13. The father initially sought orders that X spend unsupervised time with him.  On me expressing my provisional view of the unlikelihood of such an order being made, Ms Farmer late in the day obtained affidavits from the paternal grandmother and paternal grandfather saying that they would be prepared to supervise the time. They are visiting from interstate, as I gather.

14. The mother in her affidavit makes allegations against the father of longstanding family violence against her, including assaulting and choking her and also of allegations of alcoholism.  She says that the father is an alcoholic and has a long history of alcohol-related offences, including drink-driving offences. 

15. The father's behaviour, if true, certainly indicates a very serious problem with alcohol.  All in all, I am satisfied that there is a serious risk in this child spending time with his father at the moment, whether supervised or unsupervised.  Given the bail conditions, any time the child spent with the father would involve the child travelling from City B and his home some distance to Town C, which is approximately, I think, 100 kilometres southeast of City B on the highway.

16. Where any time would take place is unclear; presumably the residence in which the father is bailed to reside, that is, the Region D’s residence at Town C.  I am not reassured by those arrangements and I consider that there is a real question mark about the security of the child or, indeed, the children, should they be required to travel to Town C and spend time with the father.  My concern about the security is not allayed by the fact that the paternal grandparents will be in attendance.  The father's behaviour is indicative of, at times, a very high degree of recklessness, if the allegations are true.

17. In addition, there is a letter the mother has obtained from a paediatrician who is apparently seeing X; a Dr E, who is a Darwin paediatrician. Dr E’s letter is essentially submissions on behalf of the mother.  I do not give the letter great weight but nevertheless the doctor says that she is managing X for ADHD and behavioural difficulties.  She includes in the problem list for which she is dealing with this child: ADHD, behavioural difficulties, sensory processing disorder and the fact that he is a victim of family violence.  If the allegations are true, he is a victim of family violence.

18. I do not know what the psychological effects of X spending time with his father at Town C, supervised by the paternal grandparents, would be.  I have no real idea.  I am very concerned about the potential for psychological harm and, given the father's history, I am also concerned about the potential for physical harm. 

19. I consider the risks unacceptable and I do not propose to make any order that these children spend time with their father until further order. 

20. I do not propose to make any other orders about the communication at this stage until I know more about the case.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 21 January 2021