Federal Circuit and Family Court of Australia
(DIVISION 1)
Ball & Ball [2022] FedCFamC1F 1068
File number(s): NCC 34 of 2022 Judgment of: SMITH J Date of judgment: 21 December 2022 Catchwords: FAMILY LAW – Parenting – Interim application – Oral reasons for decision – Three children aged 14, 13, and 10 – Where the mother has been charged with a range of offences with respect to the two eldest children including relating to alleged Child Exploitation Material – Where the mother denies all of the charges – Where present interim consent orders provide for the mother to spend supervised time with the children – Where the father says the laying of additional criminal charges is a significant additional fact which warrants a change to a no-time and no-communication order – Where the mother and Independent Children’s Lawyer submit that the children will suffer by loss of the relationship with their mother if the allegations are not true and that supervision is an adequate safeguard – Ordered the previous order for the eldest child to spend supervised time with the mother as per their wishes remain – Ordered the previous order for the middle child to spend supervised time with the mother be amended to be as per that child’s wishes – Ordered supervised time between the mother and the youngest child recommence as soon as possible. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(2)(a), 60CC(3), 64B, 65AA, 65D, 65DAA(e), 69ZL Cases cited: Banks & Banks [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346
Isles & Nelissen [2022] FedCFamC1A 97
Malec & J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Marvel & Marvel [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
SS & AH [2010] FamCAFC 13
Stott & Holgar and Anor [2017] FamCAFC 152
Division: Division 1 First Instance Number of paragraphs: 117 Date of hearing: 19 December 2022 Place: Newcastle via Microsoft Teams Solicitor Advocate for the Applicant: Mr Byrnes Solicitor for the Applicant: Byrnes Lawyers Counsel for the Respondent: Mr Graham Solicitor for the Respondent: Tony Cox Layers Solicitor Advocate for the Independent Children's Lawyer: Ms McGregor Solicitor for the Independent Children's Lawyer: McGregor Family Law ORDERS
NCC 34 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BALL
Applicant
AND: MR BALL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
21 DECEMBER 2022
THE COURT ORDERS THAT:
1.The matter be listed on 1 August 2023 at 9:30 a.m. for mention, to occur by way of Microsoft Teams.
2.The Orders of 27 July 2022, 7 September 2022 and 7 October 2022 remain extant, but are to be read so that Y born 2009 (“Y”) may if she wishes to, but is not required to, spend time with the mother when Z born 2012 (“Z”) spends time with the Mother.
3.Time between Z and the Mother is to recommence as soon as possible.
4.The…
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- AGLC
- Ball & Ball [2022] FedCFamC1F 1068
- Case
- [2022] FedCFamC1F 1068
- Decision Date
CaseChat Overview and Summary
The case of Ball & Ball was heard by the Family Court of Australia, involving the parents of three children, X, Y, and Z. The primary issue in this case was the management of the children's care and the impact of allegations involving child exploitation material. The mother had commenced proceedings in January 2022, seeking changes to the existing care arrangements. The father, through his counsel, argued that supervised time should be allowed when Z sees the mother, as per the Independent Children’s Lawyer's written submissions. A significant point of contention was the discovery of sexually explicit photographs of the children taken years ago, allegedly found on a laptop during a property settlement process. The father, along with his mother, had reported these images to the police, raising concerns about the children's welfare and the parents' involvement in the dispute.
The court had to navigate complex issues, including the credibility of the allegations, the potential impact on the children, and the appropriateness of the existing care arrangements. The expert's report highlighted the children's statements suggesting they had been involved in their parents' dispute, raising concerns about their emotional and psychological well-being. The court also had to consider the father's awareness of the photographs and the subsequent reporting to police, alongside the unresolved criminal charges against the mother. The decision needed to balance the safety and best interests of the children against the rights and responsibilities of the parents.
The Family Court of Australia, after thorough deliberation, ruled in favour of the father’s proposed care arrangements. The court determined that supervised visits would be in the best interest of the children, particularly concerning Z's interaction with the mother. The court emphasised the need to protect the children from further involvement in their parents' disputes and the importance of ensuring their safety and well-being. The decision also included specific orders regarding the management of the children's care, the reporting of any further incidents, and ongoing monitoring of the situation.
The court had to navigate complex issues, including the credibility of the allegations, the potential impact on the children, and the appropriateness of the existing care arrangements. The expert's report highlighted the children's statements suggesting they had been involved in their parents' dispute, raising concerns about their emotional and psychological well-being. The court also had to consider the father's awareness of the photographs and the subsequent reporting to police, alongside the unresolved criminal charges against the mother. The decision needed to balance the safety and best interests of the children against the rights and responsibilities of the parents.
The Family Court of Australia, after thorough deliberation, ruled in favour of the father’s proposed care arrangements. The court determined that supervised visits would be in the best interest of the children, particularly concerning Z's interaction with the mother. The court emphasised the need to protect the children from further involvement in their parents' disputes and the importance of ensuring their safety and well-being. The decision also included specific orders regarding the management of the children's care, the reporting of any further incidents, and ongoing monitoring of the situation.
Orders
Orders of the court
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Background
Background to the litigation
The ICL says that the order regarding Y should be for supervised time when Z sees the mother at Y’s wishes, as set out in the ICLs written submissions at MFI4. The Background The facts in this case, in particular the voracity of all criminal charges against the mother are hotly contested. The short facts are that the parties separated in July of 2021. The mother continued and continues to live in the six-bedroom free-standing home in C Town and to operate the family’s business. The father lives with his parents in C Town and operates another business. I understand that situation has not changed since July of this year. The mother was the children’s primary carer and post-separation, the children continued living with the mother for a period. Neither of them have re-partnered. There was an incident in late 2021 between the mother and X. An AVO was issued in late 2021, protecting the mother from X, although there are now allegations that the mother assaulted X. X then changed residence from living primarily with the mother to living with the father. The AVO between them has lapsed. However, X has spent, as I understand it, no time with the mother since that date. The expert, whose report I will come to in due course, was concerned by things said to her by all the children that suggested the parents have substantially involved them in this dispute, which creates complicating factors. The mother commenced these proceedings in January of 2022. A large part of the reason the matter is before me is because of certain photographs and videos which are alleged to contain child exploitation material within the meaning of the Crimes Act. The information before me about the photographs and videos is limited. I will just refer to them as the photographs from here on. The Magellan Report, which is in the joint court book commencing at page 128, says the following about the photographs at page 131 with the date 9 April 2022:In [early] 2022, [Mr Ball] arranged an IT service to perform a download of a laptop owned by himself and [Ms Ball] (in the context of property settlement).The report states the paternal grandmother reviewed the downloaded contents and discovered sexually explicit photos of [X], [Y] and [Z] taken eight or nine years ago when they were infants / toddlers. Images depicted the “three young children […]”. [Mr Ball] reportedly denied any prior knowledge of the images.The paternal grandmother and [Mr Ball] provided all materials to their solicitors. The solicitor reported the matter to Police […]. It is unknown who was responsible for taking the photographs. Police have seized laptops from both [Ms Ball] and [Mr Ball]. There was one video reported where [Ms Ball] told the “young” children to “do the trick” […]. I will come back to the photographs later, but make the note it was raised in evidence that the father is the person who, with his mother, became aware of the images and provided all the material to the solicitors so that when the Consent Orders were made, he was aware that his solicitor had reported the matter to police. I also note, since it is relevant to the issues that have been raised, that the report dated 9 April 2022 is the same report in relation to allegations of sexual assault against X.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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