FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ball & Ball (No 3) [2024] FedCFamC1F 215
File number(s): NCC 34 of 2022 Judgment of: SMITH J Date of judgment: 14 March 2024 Catchwords: FAMILY LAW – CHILDREN – Interim hearing –14 year old child has unilaterally removed herself from the care of the father – child wants to live with mother – mother facing criminal charges re child exploitation material of child – inappropriate for child to live with mother – mother placed child with maternal grandmother – maternal grandmother relatively safe option – maternal grandmother traveling overseas in May 2024 – further evidence required – “interim interim” orders until further interim hearing in one month.
FAMILY LAW – INTERIM ORDERS – child to live with the maternal grandmother – Child may spend time with the father – Child may spend supervised time with the mother
Legislation: Family Law Act 1975 (Cth) Pt VII s 69ZL Cases cited: B & B (1993) FLC 92-357
Ball & Ball [2022] FedCFamC1F 1068
Ball & Ball (No 2) [2023] FedCFam1CF 752
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Division: Division 1 First Instance Number of paragraphs: 48 Date of hearing: 13 March 2024 Place: Newcastle by Microsoft Teams Counsel for the Applicant: Mr Rugendyke Solicitor for the Applicant: Brynes Lawyers Counsel for the Respondent: Mr Willoughby Solicitor for the Respondent: Hannaway Lawyers 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:
14 MARCH 2024
THE COURT ORDERS THAT:
1.The matter be stood over for resumed Interim Defended Hearing on Thursday, 18 April 2024 at 10.00 am by Microsoft Teams.
2.Vary the extant orders concerning the child, Y born 2009 (“Y”) as follows:
(a)Y is to live with Ms E (Date of birth 1974) (“the maternal grandmother”);
(b)Y may, but need not, spend time with and communicate with Mr Ball (“the father”) in accordance with her wishes.
(c)Y may, but need not, spend time with and communicate with her siblings in accordance with her wishes.
(d)Y may, but need not, spend supervised time with Ms Ball (“the mother”) as follows:
(i)When the child Z (born 2012) spends time with the mother in accordance with the existing Orders of 21 December 2022 and 21 August 2023.
(e)Y may, but need not, spend supervised time with Ms Ball (“the mother”) as follows:
(i)From after school, or 4.00pm, till 8.00pm each Wednesday.
(ii)From 1.00pm to 5.00pm each Sunday.
(iii)Y’s time with the mother shall be supervised time only:
(iv)The time that Y spends with the Mother shall be supervised by B Family Services.
(v)The Mother and the Father shall be equally responsible for the costs of B Family Services and a copy of these orders may be given to B Family Services.
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- Ball & Ball (No 3) [2024] FedCFamC1F 215
- Case
- [2024] FedCFamC1F 215
- Decision Date
CaseChat Overview and Summary
The court identified several key legal issues. First, it needed to decide whether it was in Y's best interests to remain with her maternal grandmother, Ms E, given that she was relatively safe but would be travelling overseas in May 2024. Second, the court had to determine appropriate visitation arrangements with both parents, considering the mother's criminal charges. It was critical to ensure Y's safety while also allowing her to maintain relationships with both parents. The court balanced these considerations and decided on interim measures until a further hearing could be held.
In its reasoning, the court emphasised the need for a stable and safe environment for Y. It found that living with her maternal grandmother was the safest interim option, despite the grandmother's upcoming travel plans. The court also allowed Y to have supervised visits with her mother, with supervision by B Family Services, due to the mother's criminal charges. Visits with the father were to be unsupervised, as there were no concerns about his care for Y. The court detailed specific times and locations for the supervised visits and required the mother to provide communications records to the father and the Independent Children's Lawyer.
The court's final orders included a temporary living arrangement for Y with her maternal grandmother, with supervised visits to both parents under specified conditions. It also mandated the production of various communications and documents to aid in the ongoing assessment of Y's welfare and the parents' fitness to care for her. The matter was stood over for a further hearing in April 2024 to allow for additional evidence and assessment.
Orders
Orders of the court
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:
14 MARCH 2024
THE COURT ORDERS THAT:
1. The matter be stood over for resumed Interim Defended Hearing on Thursday, 18 April 2024 at 10.00 am by Microsoft Teams.
2. Vary the extant orders concerning the child, Y born 2009 (“Y”) as follows:
(a) Y is to live with Ms E (Date of birth 1974) (“the maternal grandmother”);
(b) Y may, but need not, spend time with and communicate with Mr Ball (“the father”) in accordance with her wishes.
(c) Y may, but need not, spend time with and communicate with her siblings in accordance with her wishes.
(d) Y may, but need not, spend supervised time with Ms Ball (“the mother”) as follows:
(i) When the child Z (born 2012) spends time with the mother in accordance with the existing Orders of 21 December 2022 and 21 August 2023.
(e) Y may, but need not, spend supervised time with Ms Ball (“the mother”) as follows:
(i) From after school, or 4.00pm, till 8.00pm each Wednesday.
(ii) From 1.00pm to 5.00pm each Sunday.
(iii) Y’s time with the mother shall be supervised time only:
(iv) The time that Y spends with the Mother shall be supervised by B Family Services.
(v) The Mother and the Father shall be equally responsible for the costs of B Family Services and a copy of these orders may be given to B Family Services.
(vi) The time that Y shall spend with her Mother supervised by B Family Services may occur at the following locations:
1. The Mother’s home.
2. The Maternal Grandmother’s home.
3. Any restaurant, café or fast food venue within Region F.
4. Any oval, park or nature reserve within Region F.
5. The offices of B Family Services.
(vii) Only in the event either that B Family Services is unavailable to supervise, or that the Mother and Mr Ball agree in writing, then the time that Y spends with the Mother shall be supervised by the Maternal Grandmother.
(viii) The time that Y shall spend with the Mother supervised by the Maternal Grandmother shall occur only at the following locations:
1. Any restaurant, café or fast food venue within Region F.
2. Any oval, park or nature reserve within Region F.
3. That the District Court files …, … and … from Town G Court be requested.
4. Within 7 days of these Orders, the mother is to provide to the ICL and the father copies of all electronic communications (via text message, Snapchat, Instagram, email or however received) between her and Y in the period February 2024 to date.
5. That the father be granted leave to issue subpoena upon the Town J Venue for CCTV footage from December, January and/or February.
6. Within 14 days the mother shall produce to father and ICL copies of all electronic communications (including texts messages and emails or however received) exchanged between herself and Ms E between December 2023 and March 2024.
7. Leave to issue a subpoena upon CAMHS and any other medical or allied health treatment provider of Y for the period August 2023 to 10 March 2024.
8. The parties file and or serve any supplementary affidavits or Court Books and Submissions Bundles by no later than 4.00 pm on Friday, 12 April 2024.
Subpoena
9. Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they deem necessary.
Photocopy
10. If all parties are legally represented leave is granted to the legal representatives only to photocopy all subpoenaed documents in these proceedings.
(a) Such leave is granted on the condition that the legal practitioner undertakes to destroy all photocopies, which do not become exhibits, at the conclusion of the matter.
(b) In addition to the usual implied undertakings in respect of subpoena material, if a legal representative exercises this right they shall be taken to have given an undertaking that they will not:
(i) distribute copies of any subpoena documents to any person (including their client); and/or
(ii) allow the further copying of any subpoena documents by any person (including their client).
Save for the following exception:
(iii) Copies of subpoena documents may be distributed to counsel or other legal representatives acting in this matter, and / or to any Single Expert appointed by the Court or the parties, or to any other Expert with the written consent of all other parties.
(c) A copy of this order is to accompany any copies of subpoena documents distributed to any person and attention is to be specifically directed to this Order, and those persons shall then be taken to have given the undertakings in this Order.
(d) If a party who was represented becomes unrepresented, they shall not be entitled to copies of the subpoena documents, even if they have paid for the photocopying, and the leave granted in this Order is given on that basis.
Liberty to relist
11. Liberty is granted to the parties to approach the Court in Chambers to have the matter relisted on short notice if any urgent issues arise.
Information
12. The mother be authorised to receive copies of any school reports, newsletters, and any correspondence ordinally sent, regarding Y at her own expense.
THE COURT NOTES THAT:
A. Where a party is granted leave to review or photocopy subpoena documents the exercise of that leave is conditional on their giving the usual undertaking. The usual undertaking includes an undertaking to the Court to keep confidential and to not disclose to other person (other than a legal practitioner retained in the proceedings) any of the information or knowledge acquired by reason of the review of the subpoenaed material. It also includes an undertaking not to show or distribute or publish any document or party of any document copied from the subpoenaed material. Any person who inspects or photocopy documents is taken to have given the usual undertaking without having to sign any further document. A person who breaches the undertaking has committed a serious contempt of Court punishable by imprisonment.
B. The provisions of s 121 of the Family Law Act “Restriction on publication of court proceedings” also applies to information obtained on subpoena. A person who publishes such information commits a criminal offence punishable by imprisonment for a period of up to 1 year.
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.
Background
Background to the litigation
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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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