FEDERAL CIRCUIT COURT OF AUSTRALIA
| BELFORT & SEDITA | [2021] FCCA 558 |
| Catchwords: FAMILY LAW – Recovery order – where parties separated for several years – where parenting plan put in place – where plan not formalised as Court order – where plan not registered – where child lives with mother and spends time with father – where each parent re-partners – where young adolescent child expresses clear view that, at present, he does not wish to live with mother – where father, acting protectively, arranges medical consultation – where general practitioner refers child to clinical psychologist – where psychologist records child’s present wishes – where parties agreed on family therapy and child inclusive conference – where means of re-establishing communication with mother explored – applicable principles – child to live with father until further order. |
| Legislation: Family Law Act 1975 (Cth) ss.4, 60CA, 60B, 60CA, 60CC, 63, 63C, 65D, 65DA, 67V |
| Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662 Banks & Banks [2015] FamCAFC 36 SS & AH [2010] FamCAFC 13 |
| Applicant: | MS BELFORT |
| Respondent: | MR SEDITA |
| File Number: | MLC 1671 of 2021 |
| Judgment of: | Judge A. Kelly |
| Hearing dates: | 17, 19 March 2021 |
| Date of Last Submission: | 19 March 2021 |
| Delivered at: | Melbourne |
| Delivered on: | 25 March 2021 |
REPRESENTATION
| Counsel for the Applicant: | Ms K. Paull |
| Solicitors for the Applicant: | Cahills |
| Counsel for the Respondents: | Mr D. Mort |
| Solicitors for the Respondents: | Hughes Legal |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth) and ss 102D-102E of the Family Court of Australia Act 1975 (Cth) (Act), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
To the extent necessary, all times for service be abridged.
The applications made by paragraphs 2-3 of the Mother’s initiating application filed 8 February 2021 seeking by way of interim relief a recovery order for the delivery to her by the Father of the child X born in 2009 (the child), and an order that the child live with the Mother be refused.
Until further order, the child live with the Father and remain enrolled at the school that he is now attending.
Direct that a copy of this Order and these Reasons for Judgment be supplied to the child’s clinical psychologist, Dr B.
By consent, the Mother and Father and each of them whether by themselves, their servants or agents…
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- AGLC
- BELFORT & SEDITA [2021] FCCA 558
- Case
- [2021] FCCA 558
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to grant the Mother's interim applications for a recovery order and for X to live with her. Additionally, the court needed to consider the most appropriate interim parenting arrangements for X, including live with and spend time provisions, and how to facilitate communication and cooperation between the parents regarding X's welfare. The court also had to address the appointment of an Independent Children's Lawyer and the process for a Child Inclusive Assessment.
In its reasoning, the court acknowledged that parenting orders involve the exercise of judicial discretion, guided by the paramount consideration of the child's best interests, as outlined in section 60CC of the relevant Act. The court emphasised the importance of providing X with a stable and settled environment, concluding that this was best achieved by X continuing to live with his Father on an interim basis. The court declined to make an order for equal shared parental responsibility at this stage, noting that such an order would trigger specific considerations regarding time spent with each parent. Instead, the court directed the parties to engage with X's clinical psychologist, Dr B, and a child inclusive assessor, Mr C, to explore appropriate parenting arrangements, including parental responsibility, live with, spend time, communication, educational needs, and family therapy, with the aim of fostering resolution.
The court made several orders, including allowing parties to appear by video and audio link, abridging time for service, and refusing the Mother's interim applications for a recovery order and for X to live with her. Until further order, X was to live with the Father and remain enrolled at his current school. The court also ordered that X's clinical psychologist, Dr B, be supplied with a copy of the orders and reasons, and that the parents engage with Dr B to reinstate X's communication and time with his Mother, including overnight time, and cooperate with Dr B's recommendations. A Child Inclusive Assessment with Mr C was directed, with the costs initially borne by the Father, and the parties were to provide relevant documents to Mr C. The court further ordered that the parties participate in non-reportable family therapy, with costs shared equally. Directions were made for a final hearing on 8 December 2021, including detailed provisions for discovery, the use of documents, affidavits, and the filing of an Outline of Case. Crucially, an Independent Children's Lawyer was to be appointed to represent X.
Orders
Orders of the court
1.
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth) and ss 102D-102E of the Family Court of Australia Act 1975 (Cth) (Act), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
2.
To the extent necessary, all times for service be abridged.
3.
The applications made by paragraphs 2-3 of the Mother’s initiating application filed 8 February 2021 seeking by way of interim relief a recovery order for the delivery to her by the Father of the child X born in 2009 (the child), and an order that the child live with the Mother be refused.
4.
Until further order, the child live with the Father and remain enrolled at the school that he is now attending.
5.
Direct that a copy of this Order and these Reasons for Judgment be supplied to the child’s clinical psychologist, Dr B.
6.
By consent, the Mother and Father and each of them whether by themselves, their servants or agents and howsoever otherwise forthwith engage with the child’s clinical psychologist, Dr B, with respect to the most appropriate arrangements for the child to reinstate his communication and spend time arrangements with his Mother, including overnight time.
7.
By consent, the Mother and Father and each of them whether by themselves their servants or agents and howsoever otherwise take all steps and do all things as may be necessary to facilitate and cooperate in the implementation of the recommendations of Dr B to reinstate the child’s communication and spend time with his Mother.
8.
Pursuant to s 11F of the Act, the Father and the Mother and the child attend upon Mr C on 8 April, 2021 for the purposes of a Child Inclusive Assessment with his Memorandum to be released to the parties, as soon as practicable upon completion.
9.
Direct that, in the first instance, the costs of the s 11F conference be borne by the Father and be reserved for determination at trial.
10.
Direct that the parties provide to Mr C copies of their initiating process and affidavits, a copy of this Order, these Reasons for Judgment and their respective proposals for interim parenting arrangements for the child.
11.
Direct that upon receipt of Mr C’s report, the parties confer as to any further interim parenting orders which they consider to be appropriate and, within 21 days thereafter, file a joint minute of such proposed orders indicating where they agree or disagree.
12.
By consent, pursuant to s 13C of the Act, order that the parties and child participate in non-reportable family therapy and that the costs of such therapy be borne by the parties equally.
Hearings
13.
The proceeding be listed for mention at 10.00am on Thursday, 20 May 2021.
14.
The matter be fixed for Final hearing at 10.00am on Wednesday, 8 December 2021 in the Federal Circuit Court of Australia at Melbourne before Judge A Kelly with an estimated hearing time of 1 day.
15.
The following directions are made respecting discovery and use of documents at trial:
(a) no later than four months before the trial date, the parties are to confer and identify all documents upon which they propose to adduce in evidence at trial (Documents);
(b) no later than two months before the trial date, the applicant shall prepare, serve and file an indexed paginated folder of the Documents arranged in chronological order;
(c) no Documents (including any valuations, family report or other expert reports) are to be attached to any affidavit, but may only be referred to in an affidavit by page number and volume (if necessary), from the folder(s) of Documents;
(d) save with leave of the Court, no document identified pursuant to paragraph 15(a) of this Order may be relied upon or adduced in evidence at trial.
16.
Each party be permitted to rely upon only one affidavit of evidence in chief for any witness including the applicant and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief) and further:
(a) the applicant electronically file and serve any affidavits to be relied upon at the final hearing not later than 28 days prior to the hearing;
(b) the respondent electronically file and serve any affidavits to be relied upon at the final hearing not later than 21 days prior to the hearing.
17.
The evidence in chief of each party and any witness be by way of affidavit as provided by paragraphs 16 to 17 of this order.
18.
Other than as provided in this Order, no party may file or rely upon any further evidence without leave of the Court.
19.
Not later than one month prior to the final hearing all parties do electronically file and serve an Outline of Case Document (not exceeding 12 pages) including the following:
(a) a list of the material relied upon;
(b) a brief chronology listing significant events;
(c) a list of the significant factual issues requiring determination;
(d) a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (s 60CC factors);
(e) a list of contentions relevant to the operation of s 65DAA;
(f) a list of any other contentions relevant to the decision; and
(g) the actual orders sought.
ICL Appointment
20.
Pursuant to section 68L(2) of the Act, the child be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they make such arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:
(a) forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;
(b) within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents;
(c) the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published at
(http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/policies-and-procedures/guidelines-independent-childrens-lawyer),
and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and
21.
The Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than 5 business days before the Final Hearing.
22.
Direct that the parties may supply a copy of this order to a State Court.
23.
Pursuant to section 68P of the Act, to the extent that any provisions of this Order may be inconsistent with any existing family violence order, the provisions of this order shall prevail.
24.
Pursuant to sections 65DA(2) and 62B of the Act, 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 the Fact Sheet attached hereto and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A. The mother has been encouraged to raise with Dr B that the child’s step-brother, Mr D, should be in substantial attendance on the occasions that the child is to spend time, including overnight time, with the mother.
B. The father has been encouraged to facilitate that the child should commence spending time with his mother without delay.
C. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012 (Cth).
D. 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
E. 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
F. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G. If s 102NA of the Act applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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
In Bondelmonte v Bondelmonte,[40] the Court said of s 65D:A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the Court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (emphasis added)The inherently evaluative nature of the exercise of this power is thus apparent.[40] (2017) 259 CLR 662, [8]. It is important that X should be provided with the most stable and settled environment that is presently available to him at this time. I have concluded that the most stable environment that can be provided to him is one in which he continues to live with his father. No order for equal shared parental responsibility is in place. The making of such an order on an interim basis would trigger a requirement to consider whether the child should spend equal, or substantial and significant, time with each parent.[41] Given the recent upheaval which X has experienced, the urgency of the present application and the observations of Dr B coupled with the pending appointment with Mr C, I have concluded that the likelihood of ongoing conflict and litigation may be diminished if no orders for parental responsibility are made at this time. Instead, I think that the prospects of resolution, without Court orders at this stage, may well be enhanced by directing the parties attention to the terms of their Mutual Understandings and to encourage that they confer with both Dr B and Mr C before the next mention as to the terms of X’s parenting arrangements which will include, parental responsibility, live with, spend time, communication, educational needs and family therapy. After a little time has been allowed for matters to settle, the parties may recognise that the matter is capable of resolution. [41] Morgan & Miles FLC 93-343, [68]. Following the hearing on 17 March 2021 (and I infer after receipt of Dr B’s report), commendably, Dr B or the mother took the initiative of making contact and held a conversation described by the clinical psychologist as being “appropriate”. Further, Dr B offered assistance to facilitate that X and his mother might establish a clearer mode of communication and suggested that this could include the involvement of a trusted and independent adult being present in the course of face time, telephone was a zoom communications. Having regard to the child’s sessions with the clinical psychologist his views on the selection of that person (which could be his stepbrother, Mr D, or some other party), would be of relevance.