FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ball & Ball (No 7) [2024] FedCFamC1F 903
File number(s): NCC 34 of 2022 Judgment of: SMITH J Date of judgment: 23 December 2024 Catchwords: FAMILY LAW – Parenting – Interim application – Oral reasons for decision – where prior interim orders were made for mother to spend limited supervised time with the two older children – in circumstances where the mother has now been acquitted of the charges in a Judge alone trial in the District Court of New South Wales – where District Court reasons are not yet available – where father argues there has not been a sufficient change in circumstance to warrant re-examination of the interim orders – where prior supervisors are no longer willing to facilitate the interim orders – finding that it is appropriate to vary the orders to allow the mother unsupervised time with the youngest child Legislation: Family Law Act 1975 (Cth), Pt VII, ss 60CC, 69ZL Cases cited: 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
Ball & Ball (No 6) [2023] FedCFamC1F 308
Bondelmonte & Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Deiter & Deiter [2011] FamCAFC 82
Isles & Nelissen [2022] FedCFamC1A 97
SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 52 Date of hearing: 17, 23 December 2024 Place: Newcastle Counsel for the Applicant: Mr Priestley Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Mr Willoughby Solicitor for the Respondent: Hannaway Lawyers Counsel 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:
23 DECEMBER 2024
THE COURT ORDERS THAT:
Future Listings
1.The mention in the proceedings NCC3275/2024 listed on 11 February 2025 in front of Judicial Registrar Jackson is confirmed.
2.The Independent Children’s Lawyer is excused for attending the mention on 11 February 2025 at Order 1 herein.
3.The matter be listed for mention on Friday, 28 February 2025 at 10.00 am by Webex video link in relation to parenting and property.
4.Liberty is granted to the parties to approach the Court in chambers if any issue arises.
Z - unsupervised time with the mother
5.Z born in 2012 (“the child”) shall spend unsupervised time with Ms Ball born in 1974 (“the mother”) as follows:
(a)Each Sunday from 10am until 4pm; and
(b)Boxing Day 26 December 2024 from 10am until 4pm.
Z - change overs
6.Change overs between the mother and Mr Ball born in 1972 (“the father”) shall take place at the front of K-Mart at R Shopping Centre, Town G.
7.The mother and father are not…
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- AGLC
- Ball & Ball (No 7) [2024] FedCFamC1F 903
- Case
- [2024] FedCFamC1F 903
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether there had been a significant change in circumstances since the previous orders were made, and if so, what variation to those orders would be appropriate. The court had to balance the mother's acquittal on the criminal charges against the need to protect the child from any potential harm or instability. The court also needed to consider the availability of supervision and the impact of any changes on the child's welfare.
Smith J found that there had been a sufficient change in circumstances to warrant a re-examination of the interim orders. The court concluded that it was appropriate to vary the orders to allow the mother unsupervised time with the youngest child, given the mother's acquittal and the unavailability of prior supervisors. The court made detailed orders regarding the timing and conditions of the unsupervised time, as well as restrictions on communication between the parents and requirements for a single expert to prepare a report on the child's needs and safety. The court also made orders regarding property matters and the appointment of an accountant to complete tax returns for a company associated with the family.
In summary, the court varied the interim parenting orders to allow the mother unsupervised time with the youngest child, taking into account the change in circumstances and the need to protect the child's welfare. The court made detailed orders regarding the conditions of the unsupervised time, communication between the parents, and the appointment of a single expert. The matter was listed for further mention to address parenting and property issues, and costs were reserved to the final hearing.
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:
23 DECEMBER 2024
THE COURT ORDERS THAT:
Future Listings
1. The mention in the proceedings NCC3275/2024 listed on 11 February 2025 in front of Judicial Registrar Jackson is confirmed.
2. The Independent Children’s Lawyer is excused for attending the mention on 11 February 2025 at Order 1 herein.
3. The matter be listed for mention on Friday, 28 February 2025 at 10.00 am by Webex video link in relation to parenting and property.
4. Liberty is granted to the parties to approach the Court in chambers if any issue arises.
Z - unsupervised time with the mother
5. Z born in 2012 (“the child”) shall spend unsupervised time with Ms Ball born in 1974 (“the mother”) as follows:
(a) Each Sunday from 10am until 4pm; and
(b) Boxing Day 26 December 2024 from 10am until 4pm.
Z - change overs
6. Change overs between the mother and Mr Ball born in 1972 (“the father”) shall take place at the front of K-Mart at R Shopping Centre, Town G.
7. The mother and father are not to approach, nor to speak with, each other unless necessary, and if so are to speak in a civil fashion and only concerning necessary current parenting matters relating to Z.
Z - communication with mother
8. The mother may send Z one unsolicited text message per day.
9. The mother is not required to copy the father in on any text message.
10. Additionally, the mother may respond to any text message sent by Z, and engage in a running text communication so long as Z continues the text message communication.
Restraints
11. Both parents are restrained and prohibited from;
(a) Discussing the family or criminal court proceedings with the children.
(b) Denigrating the other parent or a member of the parent’s family in the presence or hearing of the children and shall ensure that no other person does so in the presence or hearing of the children.
(c) Exposing the children to Family Violence as defined in Section 4AB of the Family Law Act 1975 (Cth).
(d) Using physical discipline on the child on a without admissions basis.
Single Expert
12. Pursuant to section 62G(2) of the Family Law Act 1975 (Cth), the Court directs that Mr S, Clinical Psychologist, be appointed as a single expert (the Expert) to prepare a report, and for the purposes of this order:
(a) The parents shall each pay half of all costs associated with the of the report and any subsequent court appearances required for the Expert
(b) The parents are to do all things and attend upon all appointments as may be directed by the Expert including making the children available for appointment(s) with the Expert;
(c) The parents are to produce all documents so requested by the Expert; and
(d) In preparing their report, the Expert is requested to consider:
(i) arrangements that would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the children and of any other person who has care of the children;
(ii) any views expressed by the children;
(iii) the developmental, psychological, emotional and cultural needs of the children;
(iv) the capacity of each person who has or is proposed to have parental responsibility for the children to provide for the children’s developmental, psychological, emotional and cultural needs;
(v) the benefit to the children of being able to have a relationship with each parent and other people who are significant to the children, where it is safe to do so; and
(vi) anything else that is relevant to the particular circumstances of the children.
13. The appointments may be arranged now, but are not to take place until the settled Reasons for Decision on the acquittal of late 2024 of His Honour Judge Ellis of the District Court of New South Wales are available and provided to Mr S.
Settled Reasons for Decision of District Court of New South Wales
14. The parties to provide to the Court settled Reasons for Decision on the acquittal of late 2024 of His Honour Judge Ellis of the District Court of New South Wales as soon as they are received.
Property - subpoena
15. By consent, Order 11 of the orders dated 11 December 2024 be varied so that subpoena packet 14 (BB Company) may be released to the parties and to their accountants.
Property – company tax returns
16. By consent, the mother is to nominate three accountants for the purpose of completing any necessary tax returns for T Pty Ltd by 17 January 2025.
17. The father may select one of the three nominated accountants and notify the mother by 31 January 2025, and then that accountant will be the accountant for that purpose.
18. If the father fails to notify the mother by 31 January 2025, then the mother may select the accountant, and notify the father within 7 days.
19. The parties are to do all things reasonably required to complete any outstanding tax returns as soon as possible.
Costs
20. Reserve costs to the final hearing.
THE COURT NOTES THAT:
A. To the extent this order requiring Z to spend time with the mother is inconsistent with a Family Violence Order protecting Z, this order takes precedence. See Family Law Act 1975 (Cth) Pt VII Division 11 “Family Violence” and in particular sections 68P and 68Q.
B. Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
C. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D. Affected unrepresented parties may apply 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.
E. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
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
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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