Bradley & Holder
[2024] FedCFamC2F 1436
•16 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bradley & Holder [2024] FedCFamC2F 1436
File number(s): MLC 3500 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 16 September 2024 Catchwords: FAMILY LAW – Interim defended hearing – where the child lives with the mother – where no long term parental decision making orders were made – appointment of an independent children’s lawyer – where the father seeks an increase of time – where the mother raises concerns of the father’s living arrangements – where the mother raises concerns of the father’s mental health – where the mother believes there is a risk of harm to the child in the father’s care – where the court found no proper basis of risk – where the mother seeks the father to enrol in a men’s behavioural change program – where the father’s time increases to 6 hours each alternate Saturday – where the court placed no restrictions of where the child can attend with the father – where the father has begun attending upon a psychologist prior to the hearing – where the court did not order the father to enrol in a men’s behaviour change program Legislation: Family Law Act 1975 (Cth) s 69ZL Division: Division 2 Family Law Number of paragraphs: 20 Date of hearing: 16 September 2024 Place: Melbourne Solicitor for the Applicant: Rodriguez Family Lawyers Pty Ltd Solicitor for the Respondent: In Person ORDERS
MLC 3500 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BRADLEY
Applicant
AND: MS HOLDER
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
16 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.That all previous parenting orders are discharged.
2.The child X born in 2016 (“the child”) live with Ms Holder (‘the Mother’).
3.The child spend time and communicate with Mr Bradley (‘the Father’):
(a)For six hours from 10.00am – 4.00pm each alternate Saturday commencing 28 September 2024.
(b)Via Skype each Wednesday at 5pm for up to 30 minutes with the Father to initiate the call, the Mother to facilitate the call and the child be afforded privacy.
4.Changeover is to occur at B Centre at C Street, Town D.
5.Any further time spent between the Father and the child be agreed by the parties in writing via text or email.
6.Each party notify the other within 24 hours of any medication required by the child or within 4 hours’ notice any hospitalisation required of the child.
7.That each party notify the other within 7 days of any change of address and phone number.
8.That the parties continue to communicate via parenting app Appclose or another parenting app agreed to in writing between the parties regarding the child in a respectful and child focus manner.
9.Each parent be at liberty to engage in individual therapy with a psychologist with experience in parenting matters for treatment as directed by psychologist.
10.Each parent be at liberty to provide a copy of the child impact report dated 26/8/2024 and the psychological reports of Dr E of the Father dated 5/7/2024 and of the Mother dated 9/7/2024 to any therapist he or she attends.
11.That the parents are restrained by injunction from:
(a)abusing, belittling, rebuking or denigrating the other parent in the presence or of the child;
(b)involving or exposing the child to any discussion which involves a dispute between either parent;
(c)discussing these proceedings or any related documents with or in the presence of the child;
12.The application of the Mother to restrain the Father from allowing the child to attend his home be and is dismissed.
Appointment of an Independent Children’s Lawyer (‘ICL’)
13.Pursuant to s 68L(2) of the Family Law Act 1975, X be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:
(a)forthwith upon appointment by Victoria Legal Aid or otherwise, the Independent Children’s Lawyer file a notice of address for service;
(b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent themselves) provide to the Independent Children’s Lawyer copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports;
(c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Federal Circuit and Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and
(d)the Independent Children’s Lawyer prepare a minute of the orders they will recommend be made as final orders.
14.Leave is granted to the Independent Children's Lawyer to inspect and copy:
(a)Material produced by the Department of Families, Fairness and Housing on 20 May 2024 in response to the notification made under s 67Z;
(b)Any further Documents produced by the Department of Families, Fairness and Housing in response to any order to provide documents or information (s 67ZBE Order).
15.Each parent is to provide to the ICL the details of his/her therapist and an authority for the ICL to obtain information from the therapist.
Future listings
16.The matter remains listed before Judicial Registrar McGowan for Directions Hearing on 22 October 2024.
17.The parties be at liberty to apply to the Chambers of Judicial Registrar McGowan in the event that Family Dispute Resolution (‘FDR’) has not occurred prior to the listing date.
AND THE COURT ORDERS UNTIL FURTHER ORDER:
18.The Father be and is restrained from attending the workplace of the Mother, being F Centre.
19.Each parent do all acts and things to cause and ensure that both parents are authorised to obtain, from any school the child may attend, copies of all school reports, school newsletters and school photographs and any other documents and information that parents are usually provided with.
AND THE COURT NOTES THAT:
A.An Independent Children’s Lawyer has been appointed for the following reasons:
a.Allegations of abuse by neglect and poor mental health.
B.Victoria Legal Aid has been given access to this file via the Commonwealth Courts Portal (“CCP”) and is granted leave to view copies of documents available on the CCP.
C.The Father has not spent Christmas Day with the child for many years and wishes to do so.
D.The parties have not attended Family Dispute Resolution with Victoria Legal Aid yet and it is noted the Child Impact Report being was recently released on 2 September 2024
E.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.
F.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.
G.Affected unrepresented parties may apply to the court and then 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.
H.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
I.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).
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
The matter of Bradley & Holder comes before me for an interim defended hearing where the parties disagree about the way forward in regard to the child, X born in 2016 (“X”) and how much time he should spend with his father.
Background
X lives with his mother, who is an educator and is 46 years (“Ms Holder”). X’s Father is casually employed from time to time and is 47 (“Mr Bradley”). X is eight years old. X has a sister, G, from a prior relationship of Mr Bradley. Ms Holder lives in Town H, and Mr Bradley lives at Town J or Town K.
Issues in dispute
Ms Holder has strong objections to X attending at where Mr Bradley lives. It appears that Mr Bradley has lived in, what appears to be, a historical home since about 2015 or 2016, and Ms Holder is concerned about the legality of that. It is common ground that Mr Bradley doesn't own those premises but stays there, he says, with the permission, or at least acquiescence, of the owner. However, that has been ongoing since 2015 or 2016. When the parties had a close relationship, Ms Holder stayed there as a single person from time to time on a number of occasions, but sees the place as unsuitable for a child.
Mr Bradley’s mental health
Ms Holder has concerns with the stability of Mr Bradley's mental health and his ability to regulate his emotions when he becomes frustrated. Mr Bradley wants to have his time with X to line up with his time with his daughter, G, every second weekend. I'm satisfied that, ordinarily, that would be an excellent thing to do. Dr E, a single expert, was retained to undertake a psychological report and Dr E had apparently accepted the information, as she understood it, from Mr Bradley that Mr Bradley had taken regular therapy, until that therapy concluded with the blessing or agreement of the therapist, Dr L.
The therapy with Dr L turns out to be not exactly as described by Dr E as stated within her report at paragraph 40:
40.[Mr Bradley] engaged in individual therapy with psychologist [Dr L] over an approximate two-year period, attending a total of 13-14 sessions. His treatment concluded in early 2024. He initially sought treatment around 2022 in response to Family Court proceedings involving [G]. In the sessions, he addressed his adjustment to parenting, changing his mentality around employment, and the loss of his mother.
Mr Bradley tells me via his solicitor today, and for today's purposes I accept, that in fact he saw Dr L for some time up until mid-2013, and then there was a break until mid-2014, or thereabouts.
Most importantly, Mr Bradley has recommenced to see Dr L and has seen Dr L on 9 August 2024 and again on 30 August 2024, and will see him again shortly. However, I do not have any information from Dr L as to how Mr Bradley is going at the moment.
One issue is that these very proceedings cause anxiety and distress to both of the parents and to Mr Bradley in particular. It appears that Mr Bradley needs the assistance of Dr L to process these difficult proceedings. This is hardly a criticism.
Time with Mr Bradley and X
The parties disagree fundamentally on whether the time should move from the existing four hours to six hours, and for it to be staggered as between a Saturday and a Sunday to accommodate Mr Bradley seeing X and G at the same time. That is, that his time with X would overlap with his time with G. In the future that may be a good thing to happen.
I'm not satisfied that it's in X's interests at the moment because I don't have any information from Dr L as to how Mr Bradley would cope with the dual responsibility of coping with the two children at once. That doesn't mean that I'm saying that that is not a good thing, if it can be arranged, but at this point in time, I'm not satisfied that it's in X's interest to place that additional pressure on Mr Bradley. In terms of whether the time should remain at four hours or should move to six hours, I'm satisfied that it should move to six hours. I'm satisfied of that in part because that is the recommendation or observation of the Court Child Expert, and that is not inconsistent with the recommendation or observations of Dr E.
Risk of X in Mr Bradley’s care
In terms of the suite of “can't do’s” in regard to Mr Bradley, I'm not satisfied that I should replace all of those restrictions on Mr Bradley. I'm not satisfied that he would cut X's hair, or take him on a motorbike. He would be foolish to do so at this introductory stage. Although there is a history of those agreement not to do those things, I'm told arises from Ms Holder’s concerns of the past.
I'm only prepared to make orders about restricting parents from doing things if I've got a proper basis to do so. I'm not prepared to make those restrictions. Mr Bradley's time is restricted. That shouldn't be interpreted as the Court saying “[Mr Bradley] can cut [X's] hair”, or “[Mr Bradley] can take him on a motorbike”, or “[Mr Bradley] can take him on a bicycle without a proper helmet”. Of course, he should only take X on a bicycle with a proper helmet. Of course he should only have him in a proper seat or restraint in a motor car. He shouldn't be in a motor car if he is not in the proper seat/restraint, and so on.
I'm not satisfied that I need to make any order as to long-term parental decision-making at this interim hearing. There will be significant further evidence down the track.
There would be some benefit to Mr Bradley taking X to his sports lessons of an alternate Friday, or once a month. If the parties agree to that, that would be a good thing. The difficulty is the sports lessons are in one town and the changeover is in another. At this point, I am not satisfied that it is in X's interests that his father attends those sports lessons, not that I have any concern that any harm would come from it.
Orders
I am not proposing any automatic increase to eight hours or to overnight. I do acknowledge that Mr Bradley has cut his cloth to fit the recommendations of the reports and that is very much to his credit at this hearing. He does not today seek overnight time, but it is clear that he will in the future.
I am also not prepared to make an order preventing him from attending the place where he lives with X. There are some practical difficulties about time and how long he can spend there, anyway, given that he has got to get from Town D to Town J and back again, in any event. The changeover points will remain at the B Centre in Town D.
During the Christmas period, I'm satisfied that, at this point in X's life, I am not going to interfere with the usual arrangement of X going to Queensland with his mother for a short period. It is only from Christmas Eve to 11 January. But I will note in the orders that Mr Bradley - so that it is not lost in the future - has not spent Christmas Day with X for many years and wishes to do so.
I will appoint an independent children's lawyer on the basis of risk of abuse by neglect. That is not a finding of risk of abuse, but there is a risk of that.
I am not going to order the Men's Behavioural Change Program because I am satisfied that Mr Bradley has a bit on at the moment, including attending on Dr L regularly, as well as attending on G and X, and I do not want to set him up with things that he cannot attend. The issue of his attitude to family violence will be a key part of the case that Mr Bradley and his solicitor will have to address. Given Mr Bradley's position of the circumstances that he has survived in his childhood and life, I am not going to impose that type of regime (as he sought) on him at this point. Now, whether that is an impediment to his time ever moving to overnight, I do not know. That is all I am doing at the moment. So, I am not ruling that he undertake such a course.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 16 October 2024
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