FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ball & Ball (No 6) [2024] FedCFamC1F 308
File number(s): NCC 34 of 2022 Judgment of: SMITH J Date of judgment: 30 April 2024 Catchwords: FAMILY LAW – CHILDREN – Interim proceedings – where child has significant mental health impairments – where child unilaterally removed herself from the care of the father and refuses to live with him – where the child self-placed with the mother contrary to mother’s bail conditions – where Court placed child with maternal grandmother – where the maternal grandmother is travelling overseas for period of eight or so days – where child to live with known family friend for that period.
FAMILY LAW – CHILDREN – Interim orders – child to live with family friend for short period – child to spend supervised time with mother in line with orders for other siblings – child to spend additional supervised time with mother – child may spend time with father in accordance with her wishes.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 69ZL, 69ZN Cases cited: B & B (1993) FLC 92-357; [1993] FamCA 143
Ball & Ball [2022] FedCFamC1F 1068
Ball & Ball (No 2) [2023] FedCFamC1F 752
Ball & Ball (No 3) [2024] FedCFamC1F 215
Ball & Ball (No 4) [2024] FedCFamC1F 232
Ball & Ball (No 5) [2024] FedCFamC1F 261
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Division: Division 1 First Instance Number of paragraphs: 61 Date of hearing: 26 April 2024 Place: Newcastle by Microsoft Teams Counsel for the Applicant: Mr Bithrey Solicitor for the Applicant: Byrnes 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:
30 APRIL 2024
THE COURT ORDERS THAT:
1.The matter be listed for mention on Monday, 16 December 2024 at 11.30 am by Microsoft Teams.
2.Vary the extant interim orders as follows:
3.Y shall live with her maternal grandmother Ms E.
4.For a period in mid-2024, Y shall live with Ms N (date of birth 1961), until the maternal grandmother returns from overseas.
5.Y and Z spend supervised time with their Mother each Saturday from 2pm until 6pm, noting that this is the time that Z spends with his Mother pursuant to Orders dated 21 August 2023.
6.In addition to Order 5 Y shall spend supervised time with the Mother each Wednesday from the conclusion of school, or 4pm if a non-school day, until 6pm.
7.Subject to the availability of a supervisor, Y shall spend additional time with the Mother for a period of three hours from…
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- Ball & Ball (No 6) [2024] FedCFamC1F 308
- Case
- [2024] FedCFamC1F 308
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the interim care arrangements should be varied to accommodate the maternal grandmother's travel, and how to structure Y's contact with both parents and her siblings, considering her wishes and mental health needs. The court needed to balance the child's welfare, autonomy, and the parents' rights within the framework of the Family Law Act 1975.
The court found that Y was content with the proposed arrangement to live with a known family friend, Ms N, during the maternal grandmother's absence. The court varied the interim orders to reflect these arrangements, allowing Y to live with Ms N for a specified period. The court also detailed supervised contact schedules with both parents and siblings, aiming to support Y's relationship with her mother while respecting her wishes regarding her father. The court emphasised that Y should have access to a phone for communication with her father and siblings. The supervision costs were to be shared equally between the parents. The Independent Children’s Lawyer was granted liberty to apply to re-list the matter at short notice.
The final orders included the variation of interim orders to reflect Y's living arrangements with Ms N during the maternal grandmother's travel, supervised contact times with her mother, and additional special occasions. Y was also granted the ability to spend time with her father as per her wishes and to communicate with him and her siblings at reasonable times. Each party was to bear half of the supervision costs. The matter was listed for mention on 16 December 2024.
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:
30 APRIL 2024
THE COURT ORDERS THAT:
1. The matter be listed for mention on Monday, 16 December 2024 at 11.30 am by Microsoft Teams.
2. Vary the extant interim orders as follows:
3. Y shall live with her maternal grandmother Ms E.
4. For a period in mid-2024, Y shall live with Ms N (date of birth 1961), until the maternal grandmother returns from overseas.
5. Y and Z spend supervised time with their Mother each Saturday from 2pm until 6pm, noting that this is the time that Z spends with his Mother pursuant to Orders dated 21 August 2023.
6. In addition to Order 5 Y shall spend supervised time with the Mother each Wednesday from the conclusion of school, or 4pm if a non-school day, until 6pm.
7. Subject to the availability of a supervisor, Y shall spend additional time with the Mother for a period of three hours from the conclusion of school if the date occurs on a school day, or a period of five hours from midday until 5pm if the date occurs on a weekend or non-school day on the following days:
(a) Y’s Birthday,
(b) The Mother’s Birthday,
(c) Christmas Day,
(d) Mother’s Day.
8. The Mother’s time with the children shall be supervised by B Services.
9. The Mother’s time with Y shall occur at the locations as per Order 8 of the Orders dated 21 August 2023.
10. Each party shall be liable for half of the supervision costs.
11. Y may spend time with the Father as per Y’s wishes.
12. Y may communicate with the Father at all reasonable times when she is not with him and for the purpose of this Order Y is to have access to a phone.
13. Y may spend time with her siblings as per Y’s wishes.
14. Y may communicate with her siblings as per Y’s wishes and for the purpose of this Order Y is to have access to a phone.
15. Y may live with the Father, rather than live with the maternal grandmother, in accordance with Y’s wishes.
16. If the maternal grandmother is unavailable to care for Y, and if Ms N is available and willing to care for Y at that time, Y may live with Ms N for that period of time.
17. The Independent Children’s Lawyer have liberty to apply to re-list at short notice.
THE COURT NOTES THAT:
A. Y has indicted she is content to live with Ms N for the specified period of time.
B. If the Father seeks sole use and occupation in the property proceedings, he may file an Application in a Proceeding for determination by a Senior Judicial Registrar in due course in the usual way.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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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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