Barker & Sweeney
[2021] FedCFamC2F 687
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Barker & Sweeney [2021] FedCFamC2F 687
File number: MLC 10642 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 15 December 2021 Catchwords: FAMILY LAW – interim parenting – supervised time – contact centre availability – where final hearing is likely to take significant time – transfer to Division 1. Legislation: Family Law Act 1975 (Cth) Cases cited: Eaby & Speelman (2015) FLC ¶93-654
Goode & Goode [2006] FLC ¶93-286
SS & AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 23 Date of hearing: 15 December 2021 Place: Melbourne Counsel for the Applicant: Mr V Peters Solicitor for the Applicant: Whyte Just & Moore Counsel for the Respondent: Mr G Ambrose Solicitor for the Respondent: Perisic Lawyers Counsel for the Independent Children's Lawyer: Ms N Sdraulig Solicitor for the Independent Children's Lawyer: Melanie Wyatt Family Law ORDERS
MLC 10642 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BARKER
Applicant
AND: MS SWEENEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
15 DECEMBER 2021
THE COURT ORDERS THAT:
1.Save as otherwise provided for by these orders, the interim parenting orders made on 18 November 2020 and 12 March 2021 remain in full force and effect.
2.The child X born in 2010 ("the child") spend time and communicate with the father at such times and on such days as can be facilitated by B Contact Centre or such other supervision service as agreed between the parties in writing for up to two hours once per fortnight.
3.For the purposes of order 2 herein, within 48 hours of the making of these orders the mother and father do all acts and things and sign all documents necessary to enrol with B Contact Centre.
4.Upon the commencement of supervised time pursuant to order 2 herein, the father pay the sum of $70.00 to the mother once every four weeks for the purposes of covering the cost of any travel expense incurred as a result of facilitating supervised time between the father and the child pursuant to these orders.
BY CONSENT:
5.Leave is granted to the parties and their legal representatives to inspect the following categories of documents from 12 June 2019 to date with respect to the subpoena issued at the request of the father to C Medical Group filed on 28 October 2021:
(a)reports including but not limited to any reports received from Mr D, radiologist FRANZCR;
(b)file notes;
(c)correspondence;
(d)attendance records;
(e)medical documents;
(f)medical certificates; and
(g)referrals including but not limited to a Neurologist or any other specialist,
(h)with respect to the mother MS SWEENEY born in 1983.
6.The Notice of Objection filed by the mother on 11 November 2021 with respect to the subpoena issued at the request of the father to C Medical Group be allowed insofar as it relates to all documents other than those provided for in order 5 herein.
7.To give effect to order 5 herein:
(a)the mother's legal representative have first access to the documents produced under subpoena to C Medical Group;
(b)the mother's legal representative be at liberty to remove from the subpoena bundle any document which is not covered by order 5 herein ("the objection documents") and place same into a sealed envelope to remain on the Court file; and
(c)the objection documents are not to be inspected by the parties or their legal representatives without further order of the Court.
BY THE COURT:
Transfer to Division 1
8.This matter is transferred to Division 1 of the Federal Circuit and Family Court of Australia, on a date to be advised, noting that the following criteria are identified:
(a)The final hearing will likely take 4-5 days or more; and
(b)There are a number of witnesses.
9.The matter is referred to the National Assessment Team for consideration of listing in Division 1 AND IT IS NOTED THAT the matter requires a listing for final hearing and the parties will be contacted directly by the National Assessment Team confirming the transfer of proceedings and the next listing date.
AND THE COURT NOTES THAT:
A.The mother's nominated bank account for the payment pursuant to order 5 herein is:
Account name: Ms Sweeney
BSB: …
Account number: ..82
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 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.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Barker & Sweeney has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPOREJUDGE O’SHANNESSY
These are short reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’) in the circumstances where I have two other matters listed today. This matter comes before me today as an interim defended hearing where it was placed for case management and crisis management, in the circumstances where it was listed for a final hearing on 30 September 2021 for two days.
On 30 September 2021, it was common ground that the matter would take considerably more than two days, and that if the matter was able to commence, it would be necessary to adjourn part-heard, which probably would have adjourned it to the next available spot in my list, which would have then been May of 2022. In any event, the court was part-heard and the matter was unable to be reached at all. In addition to that, the applicant father, Mr Barker (‘the Father’), had an application for an adjournment which was opposed by the mother's counsel, Mr Ambrose. The respondent mother is Ms Sweeney (‘the Mother’).
The adjournment application decided itself by reason of the court being unable to hear the matter, and that's very much regretted. The proceedings concerned X, who is 11 (‘the child’), and pursuant to interim orders of 12 March 2021, has been seen living with the Mother and seeing the Father at the E Supervised Contact Facility in City F. That facility provides a limited free service, and thereafter, that service would be available at $308 per fortnight, or if it was only to be for an hour per fortnight, half of that. The availability of that facility has come to an end, and the child last saw her Father in November.
The full orders of 12 March 2021 are recited below:
1.Order 1 of the interim parenting orders made by consent on 18 November 2020 is discharged.
2.The interim parenting orders made by consent on 18 November 2020 otherwise remain in full force and effect.
3.The child X born in 2010 (“the child”) spend time and communicate with the father at such times and days as can be facilitated by either E Children’s Contact Centre or such other private supervisor/supervision service (including G Family Services) as agreed between the parties in writing for up to two hours once per week (if able to be facilitated) or fortnightly if the father can only afford fortnightly with the father to pay any associated costs of private supervision in the first instance.
4.For the purposes of order 3 herein, within 7 days of the date of these orders the mother and father do all acts and things and sign all documents necessary to facilitate supervised contact.
5.Within 14 days of the date of these orders, the mother and father do all acts and things and sign all documents necessary to:
(a) engage the family with Child First;
(b)enrol in and thereafter complete the Tuning Into Kids Program at H Counsellors at their own expense;
(c)enrol in and thereafter complete a Post-Separation Parenting Program at their own expense,
(d)enrol in and thereafter undertake family therapy between the mother and father and the child with E Contact Centre, as directed by E Contact Centre, with each party to jointly share any costs associated with same,
and provide each other and the Independent Children’s Lawyer with evidence of their enrolment within 14 days of the date of this order and a copy of any certificate of completion within 48 hours of receipt of same.
6.Within 14 days of the date of these orders the mother do all acts and things (including obtaining a referral/mental health plan) and sign all documents necessary to:
(a)engage the child with a psychologist approved by the Independent Children’s Lawyer or such psychologist as may be recommended by Child First with the parties to equally share the costs of same (if any); and
(b)engage and attend upon a psychologist on a fortnightly basis and follow all reasonable recommendations of that psychologist, with the mother to bear the sole cost of same.
7.The Independent Children’s Lawyer is at liberty to liaise with the child’s psychologist appointed pursuant to order 6(a) herein and the child’s psychologist is at liberty to liaise with the Independent Children’s Lawyer if required from time to time.
8.Without admitting the necessity for same, the mother is restrained by injunction from participating in the appointments with the child’s psychologist appointed pursuant to order 6(a) herein save and except as directed or requested by the child’s psychologist from time to time.
9.Within 7 days of the date of these order, the father do all acts and things and sign all documents necessary to enrol in and thereafter complete a Men’s Behaviour Change Program and provide the mother and the Independent Children’s Lawyer with a copy of the certificate of completion within 48 hours of receipt of same.
10.The father continue to attend upon his treating psychologist on a fortnightly basis and follow all reasonable recommendations of his psychologist, with the father to bear the sole cost of same.
11.For the purposes of order 6(b) and 10, the Independent Children’s Lawyer provide the mother’s and father’s treating psychologists with copies of the following upon receipt from each party of the details of those treating psychologists:
(a)each party’s psychological assessment completed by Ms J to that party’s psychologist;
(b)the s.11F memorandum prepared by Family Consultant K dated 12 November 2020.
12.Within 28 days of the date of this order, the mother provide to the father and the Independent Children’s Lawyer details of any medical and/or allied health professionals she attended upon following the alleged incident on 12 June 2020.
13. The mother be at liberty to provide a copy of these orders to the child’s school.
14.The father is at liberty to apply (as advised) in the event of any change of circumstances in relation to his criminal charges.
AND THE COURT NOTES THAT:
A.The order as to the costs and frequency of the supervision in order 3 herein was determined by the Court.
B. The matter currently remains listed for final hearing on 30 September 2021.
C.The father is currently undertaking the Men’s Behaviour Change Program with E Contact Centre and has completed 5 sessions out of 27 to date.
D.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
F.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.
G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
The Mother asserts that the Father is not complying with the 12 March 2021 orders, in that she has had to bear the sole expense of the child’s therapy with the psychologist. The Father deposes at paragraph 30 of his affidavit of 29 September 2021:
30.Pursuant to order 6 (a) of the said Interim Orders, I was to pay for half the cost of X's psychologist, Ms L. I am aware that X has attended 3 sessions to date. Unfortunately, due to financial difficulties I have been unable to afford to pay my half share of this expense. However, on 27 September 2021 I contacted X's psychologist's rooms and made arrangements to pay for the entire cost of X's next appointment on 15 October 2021, on that date, which I understand will bring my contribution payment up to date .
It's common ground that the Father did not make that payment. It's common ground that the Father is selling his house in Suburb R. I do not have any detailed information or evidence as to the financial position of either party. It is common ground that there is a contact supervision facility at Suburb M that's available to the parties when joint applications are made, and that is a free service. Both parties say that they cannot afford to contribute to the continuation of the E Contact Centre Service.
The Mother says that it would be in the child's interest for that service to continue. On this interim hearing, I cannot determine that the Father can afford that, or that it would be in the child’s interest to impose that financial burden upon him. In due course, the accuracy of his assertions of being unable to afford the continuation of the E Contact Centre Service may well be tested, and that information may assist the ultimate determination of this matter.
When the parties commenced submissions, I spent some time in a reasonably detailed analysis of the likely length of the hearing. I proceeded on the basis that the Father is likely to be cross-examined for at least a day. The Mother is likely to be cross-examined for at least a day. That the Mother's parents were likely to be cross-examined collectively for at least half a day, and that the two experts in the case, Ms N and Ms J, were likely to be cross-examined by the three parties for a day.
In addition to that, it was likely that Ms O, who had supervised the supervision at the E Contact Centre Service, would be cross-examined and, indeed, if someone other than Ms O is to now supervise the time, that person will be cross-examined as well, making allowances of only half a day for the three parties' closing addresses, and without making any allowance for any misstep in the proceedings in terms of time or openings or other interruptions of the court, the matter is already at five days, and the parties remind me that it was thought that the matter was a four to six day matter when the matter was before me in September 2021.
I am now unable to list a matter of that length before me, assuming it's appropriate to list that matter before me as a Division 2 judge, until April 2023. It is my expectation that the matter will be able to be listed for final hearing before that time in Division 1 of this court. Further, the practices of the two courts are that it's expected that a matter taking longer than three or four days at the maximum should be transferred to Division 1.
It may be that I should have transferred the matter back on 30 September 2021. But in any event, I did not, and I looked at it afresh to see if I can accommodate it in my list. There can be no suggestion on the part of the parties of forum shopping. I am going to make an order transferring it to Division 1.
This is an interim hearing, and I must apply the law in regard to findings on an interim hearing. I recite paragraph 82 of Goode & Goode [2006] FLC ¶93-286 and also to SS & AH [2010] FamCAFC 13 (‘SS & AH’) as recently applied in 2015 as to the caution with which a court on an interim hearing should proceed in making interim or making factual findings.
[82] In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child's best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child's best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child's best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child's best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In SS & AH the Full Court of the Family Court of Australia (‘the Full Court’) at paragraph [88] and [100] observed as follows:
[88]… In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
…
[100]The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Those observations were adopted by another Full Court in Eaby & Speelman (2015) FLC ¶93-654 at [18-19].
The Father is a qualified tradesman, but he has according to him, a back condition, and he is currently seeking employment as a tradesman with lighter duties. The Mother is in receipt of social security benefits only. She is legally aided. The Father funds his own proceedings, and he is up for a legal bill of $38,000 so far, the whole of which will be paid from the sale of his house.
He says he simply cannot afford to make the contribution to E Contact Centre Service, and posits that the supervision can be by the child’s adult sister P. The evidence of the family report writer at paragraph 146 is that the child is genuinely missing P, and at paragraph 147, that the child is captivated by Q. The interruption of the child's relationships with P and Q are a tragedy in this case. The case is overshadowed by allegations of serious family violence, and I am unable to make any findings about that.
The Father has a criminal history involving violence. He is facing charges in regard to the events that are alleged to have occurred on 12 June 2020. His case in substance is that the Mother and her parents have put forward false evidence to have him at the Mother's home on that day, and that he has alibi evidence to demonstrate that he just wasn't there. The consequence of that is that on the Father's case, if he's correct, the Mother is engaged with her parents in a perjurious conspiracy to pervert the course of justice for the purpose of thwarting his relationship with the child.
The other side of that coin is that if the Mother's case is correct, the Father is involved in perjuring false evidence for the purpose of avoiding the consequences of the criminal behaviour on 12 June 2020. That would include producing photographs falsely alleging the time of the photograph. The law prohibits me from venturing into either of those circumstances and making a guess which is more likely on an interim hearing. I am simply unable to do that.
If the Father's case is correct, a terrible injustice has been done to him, and the child, P and Q. If the Mother's case is correct, a terrible injustice has been done to her and to the child. Balancing all of those matters, and noting the fact that the adult child P, is a witness for the Father in the substantive case, I accept the submissions of Mr Ambrose that it's not appropriate at this point that P becomes the supervisor.
I'm then left with the submissions of the Independent Children's Lawyer, which have persuaded me that unfortunately and tragically for all involved in this case, the child’s time with her Father can only proceed with a professionally supervised facility, with the resources such as E Contact Centre Service has or Suburb M would have. The parties are unhappy about the inconvenience, travel time etcetera of travelling from Suburb R or Town S to Suburb M.
Depending on the traffic, it's up to an hour and a half. It is about 92 kilometres. Until you get off the Melbourne-City F Freeway, it's a reasonably straightforward run, depending on traffic, which I think I can take judicial notice of. It is a nightmare between about 4pm and 7pm on a public holiday or a Sunday evening to Melbourne. However, it is “doable”, and my determination is notwithstanding the substantial inconvenience and the Mother's deep circumspection that the Father really could afford the E Contact Centre Service, but does not want to, as opposed to can't, I am determining that the supervised time should proceed at the Suburb M facility.
The Father's financial circumstances are not accurately known, but in the context of the sale of his house, and being privately represented, are by a smidge only better than the Mother's. There's no child support received. The Mother says, “I should have the assistance of $35 for the round trip to Suburb M” and I am going to order that the Father pay that $35 by direct debit to the Mother's bank account on a four weekly basis. Or in other words, two trips at a time, and that the Mother do all acts and things, the parties do all acts and things to ensure that the Suburb M enrolment is taken up as soon as possible.
I take into account all of Division VIIA of the Act and all of the parties' evidence, and they are my reasons. I add in these settled reasons the question of my power to order the $35 payment was not in question.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 1 February 2022
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