Alvino & Menton
[2023] FedCFamC1F 268
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Alvino & Menton [2023] FedCFamC1F 268
File number(s): PAC 3375 of 2019 Judgment of: ALTOBELLI J Date of judgment: 12 April 2023 Catchwords: FAMILY LAW – PARENTING – Where the Respondent was granted leave to make an oral application – Where the Respondent sought to vary consent orders regarding changeover – Respondent’s oral application granted. Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 12 April 2023 Place: Sydney (via videoconference) Solicitor for the Applicant: Mr O’Connor, A J & Associates Lawyers Solicitor for the Respondent: Ms Bean, Legal Aid NSW Solicitor for the Independent Children's Lawyer: Ms Markham, Jlm Family Lawyers Pty Ltd ORDERS
PAC 3375 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ALVINO
Applicant
AND: MR MENTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
12 April 2023
THE COURT ORDERS THAT:
1.The matter is listed for final hearing on 5 February 2024 at 10am at the Parramatta Registry, with an estimated hearing time of four days.
2.The matter is listed for mention on 14 November 2023 at 9am for the purpose of making trial directions and considering the report of the single joint expert.
3.Within 21 days, the solicitor for the Respondent father ("the father") is to exchange with the parties, and provide to my Associate, a document which identifies the documents that the father contends should not be included in the brief to Ms B, as well as the documents he contends should be included instead.
4.The above document in Order 3 should include brief submissions regarding the exclusion and inclusion of particular documents, and should attach the documents that the father seeks to be included.
5.The solicitor for the father has leave to make an oral application to vary the orders made by consent between the parties on 26 October 2022.
6.The oral application is granted and the consent orders made by this Court on 26 October 2022 are varied as follows:
(a)Order 3.5 be varied to provide "Commencing from Friday, 10 February 2023 and pending further order each alternate weekend from 3:30pm on Friday until 3pm on Sunday".
7.Leave is granted to the Independent Children's Lawyer to apply to relist the proceedings on seven days' notice in the event that further orders or directions are required, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Alvino & Menton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
This matter comes before me for the first time having come into my docket on the first court event after the matter’s transfer from Division 2 to Division 1 of the Federal Circuit and Family Court of Australia. The main purpose of the mention was for case management. The matter has been set down for final hearing on 5 February 2024 for four days. The matter relates to a child, X, who is four years old (“the child”). The current consent orders made on 26 October 2022 provide for him to live with his mother (“the mother”) and spend time with his father (“the father”).
The case presents with some complexity. There is an existing Family Report. A single joint expert report from Ms B, a clinical psychologist, has also been commissioned and will be available by November. Both the mother and the father make quite serious allegations against each other which are denied, but all of which go directly or indirectly to the welfare of the child. The procedural history that I have before me indicates that the Department of Communities and Justice has been invited to intervene in the proceedings but have declined at least once.
The variation to the consent orders of 26 October 2022 arises in the following context. Order 3.5 provides for a 5.30pm changeover, but in a context where I am satisfied that Order 8 contemplated that the changeover would take place at the child’s preschool. However, as it turns out, the preschool closes at 3.30pm and the mother and the father have been effecting changeover at McDonald's at 5.30pm. The father asks the Court to rectify the orders to reflect what he says was the intention of both the mother and the father, and that is that changeover takes place at preschool. In order to achieve that, the time would have to be changed to either 3.00pm, as the father originally contended, or 3.30pm, as the Court has in fact ordered, that being the closing time of the centre.
On behalf of the mother, Mr O'Connor submitted that there were concerns with making this change based on disruption to the child if a changeover were to take place at the school. His instructions were that there were difficulties in the child transmitting into the father's care at school, and that this led to disruptions in his behaviour. The Court notes that the mother contends that the child suffers from Autism Spectrum Disorder. Mr O'Connor agreed, however that there has never been a changeover at school. Ms Markham, as the Independent Children's Lawyer, submits on behalf of the child that this is a case where the mother and the father intended a changeover that did not involve them coming into contact with each other, a matter that no doubt reflects the serious allegations that they each make against each other. Ms Bean, on behalf of the father, submits that, in effect, the change simply reflects what the mother and the father intended.
The Court wishes to acknowledge a few things. Firstly, this is a complex case. It presents as having some challenging issues for the Court to determine, and the mother and the father present as being in high conflict. The matter has some history, having commenced in 2019. Much to the mother and father’s credit, however, it must be observed that they have made good progress, and the consent orders reflect a progression in the child’s time with the father. The mother retains concerns, and that is understandable under the circumstances. There are benefits in ensuring that changeovers take place so that the mother and the father do not come into contact with each other. The Court is satisfied that there are benefits to the child in seeing the father in the context of his school environment. It normalises, for one thing, the father's involvement in his education.
The evidence contended in the mother's case that would suggest that this will be disruptive to the child is inconsistent with the facts. It is something that she herself agreed to in the consent orders. There has never been a changeover at the school. In the circumstances, the Court is satisfied that the proposed change is in the child’s best interests. It also reflects what the Court believes the mother and the father intended when they entered into those consent orders.
I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli delivered on 12 April 2023. Associate:
Dated: 12 April 2023
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