Astley & Astley
[2022] FedCFamC2F 1704
Federal Circuit and Family Court of Australia
(DIVISION 2)
Astley & Astley [2022] FedCFamC2F 1704
File number(s): MLC 12138 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 15 November 2022 Catchwords: FAMILY LAW – dispute as to family report writer – dispute as to timing of listing for final hearing – circuit listing – mother not acting unilaterally – 6 months from formal request to trial. Legislation: Family Law Act 1975 (Cth) s 69ZL Division: Division 2 Family Law Number of paragraphs: 14 Date of hearing: 15 November 2022 Place: City D Counsel for the Applicant: Mr Carne Solicitor for the Applicant: Ella Thompson Legal Solicitor for the Respondent: Morrison & Sawyers ORDERS
MLC 12138 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ASTLEY
Applicant
AND: MR ASTLEY
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
15 NOVEMBER 2022
THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
1.By 4pm on 30 November 2022, the Husband make file and serve his Response and all other documentation required to be filed by him in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and the Central Practice Direction – Family Law Case Management.
AND THE COURT ORDERS THAT:
2.The parties and the children X born in 2017 and Y born in 2018 (‘the children’) attend upon Ms B, Psychologist for the purpose of obtaining a private family report (to be released no later than fourteen (14) days prior to the final hearing) at the parties’ equal expense.
3.The parties attend for a property mediation with an accredited Family Dispute Resolution Practitioner (“FDRP”) as nominated by C Counsellors on Tuesday 31 January 2023 at 9.30am.
4.The proceedings be adjourned to Tuesday 7 February 2023 at 10am for Final Hearing at the Federal Circuit and Family Court of Australia at City D.
5.The matter may be listed for a compliance mention prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.
6.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
7.The Applicant file and serve any Amended Application and a trial affidavit and, if relevant, an updated Financial Statement, upon which she/he seeks to rely by no later than 28 days prior to the Final Hearing.
8.The Respondent file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which she/he seeks to rely by no later than 21 days prior to the Final Hearing and the obligation to file same applies whether or not the Applicant has filed trial material in accordance with the previous order.
9.Each of the parties be at liberty to file a short affidavit in reply by no later than 14 days prior to Final Hearing.
10.The parties be at liberty to rely upon any affidavit material previously filed in these proceedings and merely file an updating affidavit, provided that written notice is given to the other party at the same time as required for filing a trial affidavit provided above.
11.Each party file and serve a case outline no later than 7 days prior to trial and provide a copy in Word format to the associate with the case outline to include:
(a)A list of the application/response and all affidavits to be relied upon including the dates of filing;
(b)A brief chronology of relevant events;
(c)A precise minute of the orders the party is seeking; and
(d)A list of authorities to be relied upon, if any.
AND THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
Parenting
Parental Responsibility
12.The parties have equal shared parental responsibility for the children.
Care Arrangements
13.The children live with the Wife.
14.Pending the determination of the Wife’s application to relocate to the Suburb E area, the children spend time and communicate with the Husband as follows:
(a)In Week 1 (commencing 14 November 2022):
(i)From 3:00pm on Monday to the commencement of kindergarten/day care on Wednesday;
(b)In Week 2 (Commence 21 November 2022):
(i)From 3:00pm on Monday to the commencement of kindergarten/day care on Wednesday;
(c)Such other times as may be agreed between the parties in writing.
Wife’s special occasion time
15.If the children are in the care of the Husband pursuant to paragraph 14 of these orders, his time is suspended on the following days:
(a)In 2022 during the Christmas period as follows:
(i)From the conclusion of school on the last day of Term 4 until Christmas Day at 1:00pm.
(b)For the Wife’s birthday and the children’s birthdays:
(i)If the birthday falls on a school day, from the end of school until 8:00pm.
(ii)If the birthday does not fall on a school day, from 11:00am until 4:00pm.
(c)From 6:00pm on Mother’s Day Eve until the commencement of school on the Monday following Mother’s Day;
(d)Such other times that may be agreed between the parties in writing.
Husband’s special occasion time
16.If the children are in the care of the Wife pursuant to paragraph 13 of these orders, her time is suspended on the following days:
(a)In 2022 during the Christmas period as follows:
(i)From Christmas day at 1:00pm until New Years Day at 5:00pm.
(b)For the Husband’s birthday and the children’s birthdays:
(i)If the birthday falls on a school day, from the end of school until 8:00pm.
(ii)If the birthday does not fall on a school day, from 11:00am until 4:00pm.
(c)From 6:00pm on Father’s Day Eve until the commencement of school on the Monday following Father’s Day;
(d)Such other times that may be agreed between the parties in writing.
Holiday Time
17.During the gazetted school term 1, 2 and 3 holidays each year, the children spend time as follows:
(a)With the Husband for one week of the school holidays, with such time to commence at 3:30pm on the first Sunday of the holidays and conclude at 3:30 pm on the middle Sunday of the holidays;
(b)With the Wife for one week of the school holidays, with such time to commence at 3:30pm on the middle Sunday of the holidays and conclude on Monday at the commencement of the following school Term; and
(c)Such other times that may be agreed between the parties in writing.
18.For 2022, during the gazetted Victorian long summer holidays commencing as of 1 January, on a week about basis, with the Wife to have the children from 5:00pm on New Years Day and changeover to occur on the same day each week thereafter.
19.The children’s time with the Husband pursuant to paragraph 8 of these Orders shall resume after each school holiday period in the same pattern as if such time had continued throughout that school holiday period.
Communication
20.The parties will communicate via text message or Facebook messenger to each other’s mobile telephone, save in the case of emergency.
21.Each party will facilitate the children telephoning the other party if the children, or either of them, requests to do so.
Changeover
22.Changeovers for the purpose of these orders will take place at the children’s school or kindergarten on school days, or at F Shop at G Plaza on non-school days.
Information
23.Each party will keep the other informed of any significant illness or accident suffered by either of the children when in his or her care, and as soon as practicable, advise the other of the name and telephone number of each relevant treating medical practitioner or like professional, and authorise such treating medical practitioner or like professional to discuss the illness or accident, treatment and prognosis with the other party.
24.Each party will notify the other immediately if either of the children is hospitalised.
25.Each party is at liberty to obtain from the children’s school copies of the following documents:
(a)Copies of the children’s school reports;
(b)School newsletters.
(c)Order forms for the children’s school photos.
(d)Notices of school functions such as parent teacher interviews, concerts, fetes and sports days.
26.Each party is at liberty to attend any of the children’s school and extra-curricular functions (such as parent-teacher nights, school sports days, drama evenings, music concerts and fetes) at which parents are usually in attendance.
27.Each party will keep the other advised of their residential address and mobile telephone number and advise the other party of any change within 24 hours.
Restraints
28.Until further Order, the parties be and are hereby restrained from relocating the children’s primary place of residence from Greater City D.
29.Without admitting the necessity for same, each of the parties, their servants and agents be restrained from:
(a)from consuming, using or otherwise being under the influence of any illegal drug or substance within 24 hours of spending time or communicating with the child, or from allowing the child to be exposed to any person affected by illegal drugs;
(b)being adversely affected by alcohol whilst spending time or communicating with the child, or from allowing the child to be exposed to any person adversely affected by alcohol;
(c)physically chastising the children (or either of them) or allowing any other person to do so;
(d)abusing, insulting, belittling, rebuking, or otherwise denigrating the other party;
(e)speaking negatively about the other party within the hearing or presence of the children (or either of them);
(f)discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children (or either of them) and from permitting any other person to do so; and
(g)from otherwise exposing the children (or either of them) to family violence.
Courses
30.That pursuant to Section 65LA of the Family Law Act 1975, the parties forthwith:
(a)Attend and complete, as soon as practicable a Post-Separation Parenting Program.
(b)Sign all documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Courses and Programs;
(c)Each party pay and otherwise be responsible for all their respective costs associates with the Program and Courses; and
(d)Provide an appropriate certificate of completion of the Program and the Courses to the other party’s solicitors.
Property
Valuations
31.The parties shall forthwith obtain a sworn valuation of the property situate and known as J Street, City D, at their equal expense and failing agreement the valuers shall be H Valuations.
Financial Disclosure
32.Within twenty-one (21) days of these Orders, the parties are to make full and frank financial disclosure and provide a copy of their financial documents to the other party including but not limited to the following:
(a)Individual Tax Returns and Notices of Assessment for the past three (3) financial years;
(b)Tax Returns, Notices of Assessment and Profit and Loss Statements for all businesses in which the parties hold an interest for the part three financial years.
(c)Payslips for the past six (6) weeks;
(d)Redbook valuations for all vehicles registered in the party’s names or in the party’s possession;
(e)Evidence as to the value of any shares, asset holdings or financial resources;
(f)Statements for all bank accounts (including mortgage or loan accounts) held in the party’s sole name (or jointly with a third party other than the party) for the past two (2) years;
(g)Statements of all credit card accounts held in the party’s sole name (or jointly with a third party other than the other party) for the past two (2) years;
(h)Statements of all liabilities held in the party’s sole name (or jointly with a third party other than the other party) for the past two (2) years;
(i)A current statement for each superannuation account held by the party;
(j)Any and all documents in relation to the Wife’s medical negligence claim including anticipated funds to be received, including all affidavits filed by the parties in relation to those proceedings;
(k)Such other documents as may be reasonably requested in writing.
33.Any documents produced by the Wife pursuant to Order 35(j) shall be provided only to the Husband’s solicitors on their undertaking not to provide a copy of any of those documents to the Husband (either in electronic or hard copy form) but permitting them to discuss the contents of those documents with the Husband.
AND THE COURT NOTES THAT:
A.The parties have consented to the parenting orders in this matter, strictly without prejudice to any orders they may seek at final hearing, on the basis that they reflect the existing parenting arrangements and in circumstances where the Husband has not yet filed any material in the proceeding.
B.These orders were made by consent save as to the issue of whether to list in the February sittings of the City D Circuit or the May sittings of the City D Circuit and the issue of the Family Report writer.
C.The matter was rolled over to today from the first return listing on Monday 14 November 2023.
D.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
F.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 a pseudonym Astley & Astley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations added and an attempt has been made to make the orally delivered reasons easier to read.
The parties have two children, aged 5 years old and 4 years old. The older child will start school in 2023. The parties have sensibly planned the children's lives so that the older child will start school locally near where the parties are living at the moment. Since separation, parties have arranged for the children to live in a shared care 8-6 arrangement.
The Mother seeks to relocate to another town roughly 3½ hours’ drive away, or 4 hours depending on traffic. The Mother commenced to agitate to move with the children to the other town on 5 August 2022 by a formal solicitor's letter and, of course, that would have taken some time to prepare and send off. There was a timely response from the Father where he indicated that he disagreed. The parties, no doubt assisted by their lawyers, arranged for mediation, which occurred on 21 September 2022, unsuccessfully, and a section 60I certificate was granted. The Mother gave notice of intention to commence proceedings on 27 September 2022 and then issued proceedings on 28 October 2022.
The parties have sensibly reached agreement as to orders for the time being, with only one issue in dispute. The matter was only listed on short notice on the basis of there being one issue in dispute and that was who would undertake the family report. That issue is not so much about who would undertake the family report, but really the pace of the proceedings as to when it would first be listed for final hearing.
The Father's solicitor makes the very valid point that considerations as important as this should not be unduly and unnecessarily rushed. He also argues that following the release of the report there should be the opportunity for a family dispute resolution conference. In other words, time to see if the parties can sort it themselves. The consequence of the Father's position is that a Mr N would prepare the family report, which would be a tad less expensive than the alternative proposed by the Mother. Mr N has time available to interview the family on 16 January 2023, which would mean a report would be available by the middle of February, as they usually take about 30 days to prepare. That report would be released in a timely manner for a final hearing listed in the May 2023 circuit with the benefit of family dispute resolution between the release of the report and the circuit in May. All of that makes complete sense.
The Mother's position is that Ms D, whose fees are slightly higher, is available to see the family on 5 December 2022. Ms D would likely release a report by early January and the parties would then be in a position to have their material ready for a final hearing listed in the February 2023 circuit.
It is put by the Father that this case should not jump the queue, so to speak, and end up in February rather than in May.
One of the advantages and disadvantages of living in the regional area of City D is that that there is the City D circuit of this Court which, on balance, means that cases can be heard a bit quicker than in Melbourne, Sydney, Brisbane or Adelaide. The fact that other places would be a bit slower does not mean that that is a good thing.
The matter that concerns me is that from when the matter was first agitated, that is 5 August 2022, until the first day of the circuit of February would be about six months. In my view, six months from first formal agitation (not just a whim, but formal agitation by a solicitor's letter) to a listing in February is not unduly rushing the matter.
I should also say that Ms D, the alternative writer, is acknowledged by both counsel to be an appropriately qualified expert person to prepare a family report as is Mr N. Both are highly credentialed and experienced report writers. Nothing turns on the personality of the report writer. Mr Carne (counsel for the Mother) says, "Well, Ms D is also a psychologist and hence that is a tad of preference". I do not place any weight on that, I am treating the two report writers as similarly expert.
The Mother has done the right thing from my perspective. She has put the father on notice, has not attempted any unilateral relocation, has not attempted to put a fait accompli in front of the Father (for example, by failing to agree to what would be the local school so as to raise the stakes), and has sensibly gone through all formal channels. The total time of the proceedings, from start to finish, if the matter is able to be accommodated, may end up being a succinct six months.
Given the seriousness of the children's living arrangements, in my view it is appropriate for the matter to be listed in the February Circuit and for the report to be undertaken by Ms D.
To the extent that Mr Carne’s client was prepared to, in the first instance, bear the additional costs, I do not place any weight on that. One of the experts is a little bit more expensive than the other, but the expense of either will pale into insignificance if the trial runs given the necessary application of financial resources on legal fees.
I am going to indicate by a notation in the orders that the orders were by consent save for the issue of the May or February circuit and the issue of the report writer.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 12 December 2022
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