Calcott & Arnis (No 2)
[2023] FedCFamC2F 1496
•28 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Calcott & Arnis (No 2) [2023] FedCFamC2F 1496
File number(s): PAC 1087 of 2015 Judgment of: JUDGE STREET Date of judgment: 28 August 2023 Catchwords: FAMILY LAW – PARENTING – loss of parent- interim orders Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases Cited: Metrellis & Chase [2023] FedCFamC2F 1241 Division: Division 2 Family Law Number of paragraphs: 5 Date of hearing: 28 August 2023 Place: Sydney Counsel for the First Respondent: Ms S Breust Solicitor for the First Respondent: SCB Legal Pty Ltd Solicitor for the Second Respondent: Ms C Lam Counsel for the Independent Children’s Lawyer: Ms J Shedden Solicitor for the Independent Children’s Lawyer: Shedden & Associates ORDERS
PAC 1087 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AND: MR ARNIS
First Respondent
MS B CALCOTT
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
28 AUGUST 2023
THE COURT ORDERS THAT:
1.The court removes the applicant as a party to the proceedings.
2.The children, X, born 2009, and Y, born 2012, are the subject of interim sole parental responsibility by the second respondent, Ms B Calcott.
3.The children are to live with the second respondent.
4.X may spend time with the first respondent in accordance with her wishes.
5.Communications between the first and second respondent are to occur via the telephone application ‘AppClose’ only or otherwise through legal practitioners.
6.The first respondent shall have communication with Y via the above app each Wednesday and Friday between 5.30pm and 6.00pm.
7.The first respondent is directed to undertake urinalysis tests on at least three (3) occasions as directed by the ICL between today and 25 September 2023.
8.The first respondent is to undertake the urinalysis test within 24 hours of the request by the ICL and provide the results to the ICL electronically and upon a satisfactory result of those tests in the opinion of the ICL, the first respondent is to spend time with Y each alternate Sunday from 10:00AM – 4:00PM.
9.If the first respondent fails to undertake the tests identified, or has an unsatisfactory test result, time is to continue as supervised time under order 10 with Y until 3 consecutive urinalysis test results satisfactory to the ICL have been received.
10.Until the commencement of unsupervised time, under the above orders, the first respondent may spend time with Y each alternative Sunday for 3 hours at a supervised contact centre being D Contact Centre or another agreed community supervised contact centre.
11.The first respondent is, when spending time with Y, to collect Y from the premises of the second respondent, but is to remain in his vehicle and is to return Y to the premise of the second respondent, but is to remain in his vehicle.
12.The first and second respondents are to attend a Legal Aid mediation arranged by the ICL once the Single Expert Report has been released to the parties.
13.Time is extended for the filing of a response by the second respondent together with any affidavit evident relied upon on or before 11 September 2023.
14.The first respondent is to file and serve a consolidated trial affidavit together with an updated response on or before 25 September 2023.
15.Varies order 3 of the orders dated 15 February 2023 to substitute the dates for the final hearing on the parenting issues between the first and second respondent to 20‑22 December 2023 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
16.The orders made on 15 February 2023 and 30 November 2022 are varied in accordance with these orders that supersede any earlier inconsistent order and all orders referencing steps to be taken by the applicant are vacated.
17.The first and second respondents are to file and serve a case outline 14 days prior to the final hearing.
18.The ICL file and serve a case outline 7 days prior to the final hearing.
19.Leave is granted to the parties, including the ICL, to provide consent orders to be made in chambers if appropriate.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
This is a parenting matter under Part VII of the Family Law Act 1975 (Cth) (the “Act”), in relation to which, very sadly, the applicant mother has passed away. The matter was brought back before the Court in circumstances where the half-sister of the two children subject of the parenting proceedings has been joined as a second respondent. There was no real issue in relation to ensuring that the children are in an environment where the second respondent is able to properly look after their needs from a medical, health and educational viewpoint and, accordingly, the Court made interim orders that the children are the subject of sole parental responsibility of the second respondent. There was a hearing date that was to take place in October 2023, which has been moved to December 2023, with the hope that that it will have facilitated increased time between the first respondent and the younger child, his son.
The Court also made orders that the children live with the second respondent on an interim basis. These orders were made in circumstances where the Court was informed through the ICL, that the elder child had expressed a preference for continuing Zoom calls, but it was accepted by the ICL that the child is at an age where she should spend time and communicate in accordance with her wishes. There is no opposition to that course by Mr Arnis, the first respondent. In relation to his son, Y, Mr Arnis is anxious to commence spending unsupervised time with him and, most unfortunately, it appears there have not been obtained updated urinalysis or hair follicle tests.
The ICL sensibly suggested that there be three random requests for urine analysis over the next month to facilitate the progression to unsupervised time with Y from Sunday from 10 am to 4 pm alternate Sundays and Mr Arnis identified difficulty with the cost of the hair follicle testing. The Court accepts that it is in the best interests of Y for his time with his father to progress beyond the supervised time. The Court has also ordered that, pending the completion of a successful test as identified, a continuing regime of supervised time for three hours at D Contact Centre is to continue once a fortnight. The Court also made orders to try and ensure no escalation of any stress between those involved in the parenting of the children, being the first responded and second respondent, by requiring the use of an application AppClose, for the purpose of communications concerning the children.
The Court has taken into account the primary consideration in s 60CC of the Act, and also the additional considerations. The Court has taken into account the principles in s43, the objects and principles in s60B, the procedural principles in s69ZN, the statutory permission to issue short form reasons in s69ZL of the Act and the overarching purpose in s190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The Court has taken into account he principles identified in Metrellis & Chase [2023] FedCFamC2F 1241 at [68] – [87]. The Court is satisfied that this is a case where the advancement of the meaningful relationship between Y and his father is the most important factor, to try and progress his meaningful time and is satisfied that the proposed orders by the Court, appropriately balance the need to protect the children in relation to the dominant consideration in s 60CC(2)(b) of the Act.
The Court has also varied the hearing date to try and ensure a greater period of time being spent by the children, at least, in particular, by Y with his father prior to the hearing date to assist the Court in formulating a progression of time to ensure a meaningful relationship between Y and his father. The Court notes the ICL has foreshadowed holding a Legal Aid mediation to try and assist the parties resolve the dispute after the release of the expert report. The Court is satisfied that the interim orders are in the best interests of the children. It is for these reasons, the Court has made those orders.
I certify that the preceding five (5) numbered paragraphs are a true copy of the published ex tempore reasons for Judgment of Judge Street. Associate:
Dated: 29 November 2023
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