Ball & Ball (No 2) - [2023] FedCFamC1F 752

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ball & Ball (No 2) [2023] FedCFamC1F 752

File number(s): NCC 34 of 2022

Judgment of: SMITH J

Date of judgment: 21 August 2023

Catchwords: FAMILY LAW – CHILDREN – Interim hearing - Spend time with mother – Time supervised by supervision contact centre – Current orders for child to spend time with mother twice a week – Mother facing criminal charges re child exploitation material – Issues with afternoon time - Orders varied for supervised contact one day per week – Who can supervise the access – ICL proposes maternal grandmother if paid supervision unavailable or unaffordable - Consideration of B & B limitations on family members supervising – The maternal grandmother can supervise where the contact centre is unavailable or unaffordable –Supervision locations - Parties to equally share supervision costs

Legislation: Family Law Act 1975 (Cth) Pt VII ss 60CA, 60CC, 64B, 65D, 65AA, 69ZL

Cases cited:
B & B (1993) FLC 92-357; [1993] FamCA 143

Ball & Ball [2022] FedCFamC1F 1068

Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

Division: Division 1 First Instance

Number of paragraphs: 31

Date of hearing: 21 August 2023

Place: Newcastle

Counsel for the Applicant: Mr Priestley

Solicitor for the Applicant: Byrnes Lawyers

Counsel for the Respondent: Mr Graham

Solicitor for the Respondent: Tony Cox Lawyers

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 AUGUST 2023

THE COURT ORDERS THAT:
1.The matter be listed on 3 May 2024 at 9:30 am for mention by Microsoft Teams.

Discharge Orders
2.That Order 1 of the Orders dated 27 July 2022 and Order 1 of the Orders dated 7 October 2023 in respect of the child Z born 2012 be discharged.

Time with the Mother
3.That Z spend time with the Mother, Ms Ball born 1974, each Saturday from 2pm until 6pm.
4.Ms E (Date of birth 1947) (the Maternal Grandmother) may be present during any time that Z spends with the Mother regardless of who is supervising.
5.No other maternal family member shall be present unless agreed in writing by the parties.

Supervision by B Services
6.The time that Z spends with the Mother shall be supervised by B Services.
7.The Mother and the Father shall be equally responsible for the costs of B Services and a copy of these orders may be given to B Services.
8.The time that Z shall spend with his Mother supervised by B Services may occur at the following locations:
(i)The Mother’s home.
(ii)The Maternal Grandmother’s home.
(iii)Any restaurant, café or fast food venue within Region F.
(iv)Any oval, park or nature reserve within Region F.
(v)The offices of B Services.

Supervision by Maternal Grandmother
9.Within fourteen days of the date of these Orders the Maternal Grandmother is to prepare, execute and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ball & Ball (No 2)

Details

AGLC: Ball & Ball (No 2) [2023] FedCFamC1F 752
Case: [2023] FedCFamC1F 752
Decision Date

CaseChat Overview and Summary

In the matter of Ball & Ball, the Federal Circuit and Family Court of Australia (Division 1) addressed an interim application filed by the mother, Ms Ball, concerning the parenting arrangements for their child, Z, born in 2012. The mother sought variations to the existing interim orders to modify the frequency and supervision of Z's time spent with her. The application arose against the backdrop of the mother facing criminal charges related to child exploitation material, which had led to the current arrangement of supervised visits twice a week. The court was tasked with balancing the need for ongoing supervision due to the serious allegations against the mother with the necessity to maintain Z's meaningful relationship with his mother.

The court had to decide whether to continue with the existing supervised visits by a professional service, B Services, or to allow the maternal grandmother to supervise in cases where B Services was unavailable or unaffordable. Additionally, the court needed to determine suitable locations for the supervised visits that would be conducive to maintaining a positive relationship between Z and his mother, while also ensuring Z's safety. The decision also required consideration of the financial implications of the supervision arrangements, ensuring that the costs were shared equitably between the parents.

Justice Smith concluded that the existing Wednesday visitation was not working and that it was in Z's best interest to reduce the frequency of supervised visits to once a week on Saturday afternoons. The court ordered that the visits should continue to be supervised by B Services, but allowed the maternal grandmother to supervise if B Services was unavailable or if the parties agreed in writing that it was preferable due to cost considerations. The court also specified the locations where the visits could take place, ensuring they were in public spaces to mitigate potential risks. The decision underscored the importance of balancing the need for supervision due to the allegations against the mother with the necessity to maintain a positive relationship with her. The court ordered that the costs of supervision be shared equally between the parents.

Orders