CHIMIN & FIATO

[2020] FamCA 62

FAMILY COURT OF AUSTRALIA

CHIMIN & FIATO [2020] FamCA 62

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to re-open – where the mother filed an application to re-open the proceedings to adduce further evidence – orders made granting the mother leave to re-open to adduce further evidence.

FAMILY LAW – CHILDREN – Interim parenting orders – interim parenting order made.

Family Law Act 1975 (Cth)

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Suell & Suell (Re-Opening) (2009) 40 Fam LR 690

APPLICANT: Mr Chimin

RESPONDENT: Ms Fiato

INDEPENDENT CHILDREN’S LAWYER: Faraday Law

FILE NUMBER: BRC 10018 of 2015

DATE DELIVERED: 24 January 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 24 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bertone

SOLICITOR FOR THE APPLICANT: Indigo Law

COUNSEL FOR THE RESPONDENT: Mr Alexander

SOLICITOR FOR THE RESPONDENT: Page Provan

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr McGregor

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Faraday Law

Orders

UPON THE UNDERTAKING by the Respondent provided in her presence by her Counsel that she will not, from the rising of the Court today until the making of final Orders on 29 January 2020, contact the child in anyway«FCA_LD221»

IT IS ORDERED THAT

1. The Respondent mother has leave to re-open the proceedings to adduce further evidence as contained within the document marked as Exhibit 1 in the Application in a Case filed 23 January 2020 determined today and her affidavit filed 23 January 2020.

2. Orders 3, 4, 5 and 6 of the Orders made on 3 April 2018 are discharged.

AND IT IS ORDERED BY WAY OF INTERIM ORDER THAT

1. The child, B, born … 2013 shall spend time with her father, Mr Chimin from immediately after these oral Reasons and the Orders made today are explained to her by a Family Consultant nominated by the Manager, Child Dispute Services of the Brisbane Registry of the Court, until 2.30 pm on Wednesday, 29 January 2020.

2. Child Dispute Services, Level 3, Harry Gibbs Commonwealth Law Courts, Corner of Tank Street and North Quay, Brisbane is authorised to deliver the child, B, born … 2013, into the care of her father, Mr Chimin following the explanation provided by the Family Consultant in compliance with Order 6 of the Orders made on 15 January 2020.

3. The father, Mr Chimin shall personally bring the child, B, born … 2013, to Child Dispute Services on Level 3, Harry Gibbs Commonwealth Law Courts, Corner of Tank Street and North Quay, Brisbane on Wednesday, 29 January 2020 at 2.30 pm so the child can be placed into the Family Court’s child care facility where she is to remain until the Orders to be made on 29 January 2020 are explained to her.

4. The Applicant and Respondent attend in person at the Brisbane Registry of the Family Court of Australia at 3.00 pm on 29 January 2020 to receive Judgment.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65L of the Family Law Act 1975 (Cth), a Family Consultant nominated by the Manager, Child Dispute Services of the Brisbane Registry of the Court shall assist the parties in relation to compliance with, and the carrying out of, the Orders to be made on 29 January 2020 by:

   (a)explaining the terms of that Order to the child, B, born … 2013; and

   (b)explaining the Reasons for Judgment delivered in support of those Orders to the extent that this is possible and in terms that are appropriate given the age of the child.

2. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

Note:   The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chimin & Fiato has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 10018 of 2015

Mr Chimin

Applicant

And

Ms Fiato

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Having regard to the applicable principles that relate to the consideration of applications to re-open evidence in parenting matters, as helpfully summarised by Murphy J in Suell & Suell (Re-Opening)[1], and having taken into account the submissions made by Mr Alexander on behalf of the mother in support of the grant of leave to re-open her case for the purpose of admitting into evidence in the proceedings:

   a)the email which I have marked as Exhibit 1 for the purpose of the interim application; and

   b)the mother’s affidavit, filed 23 January 2020; and

   having taken into account also the submissions of Ms Bertone in opposition to the grant of such leave and the submissions made by Mr McGregor advocating that I exercise the discretion to grant leave, I am persuaded in this case that it is appropriate and proper to give to the mother leave to re-open her case for the purpose of admitting into evidence in the proceedings before me the documents referred to above.

   [1] (2009) 40 Fam LR 690.

Application for interim parenting orders

1. I intend to accede to the oral application made by Ms Bertone on behalf of the father for the making of interim parenting orders pending the delivery of judgment and the making of final orders in this matter.  Such finalisation will occur on Wednesday, 29 January 2020, at 3.00 pm.  So the interim orders are intended to have effect only between now and that time.

2. It is within that context that the short Reasons I will deliver need to be assessed. 

3. The manner in which interim parenting applications are to be considered needs no further elucidation: the principles are well known, having been prescribed by the Full Court of this Court in cases such as Goode & Goode[2] and, importantly, in this case, Banks & Banks[3]. 

   [2] (2006) FLC 93-286.

   [3] (2015) FLC 93-637.

4. I do not intend to make orders in all of the terms sought by Ms Bertone on behalf of the father.  I do not consider at this stage such orders to be proper.  It is unnecessary, given the length of time over which the interim orders will take effect, to deal with or make orders in relation to the issue of sole parental responsibility: I am not persuaded the same is required or necessary, having regard to the applicable legislative provisions. 

5. I intend, though, to make an order that B spend time with her father from this afternoon until 2.30 pm on 29 January 2020, at which time the father will be required to bring her to Child Dispute Services so that she can again be placed in the Court’s childcare facility, so that the final orders to be made that day at 3.00 pm can be explained to her. 

6. I am persuaded that it is in B’s best interests to make such interim order for the following reasons. 

7. One, I note – as a consequence of evidence received following an Order I made on 15 January 2020 – that B has continued to spend supervised time with her father on a fortnightly basis at the K Contact Centre since 23 February 2019 (save for one occasion in about mid-November 2019 or thereabouts when she was unwell).  I also note the contents of the report, admitted into evidence as a consequence of the Order made on 15 January 2020, from Ms H, the counsellor upon whom B has attended since last year (prior to the evidence in the matter concluding in early April 2019) to the effect that B’s time with her father on a supervised basis has proceeded satisfactorily. 

8. I also take into account and place particular weight, though, upon the evidence admitted today as a consequence of my acceding to the mother’s application to re-open the evidence to permit her to adduce evidence of her proposal for final parenting orders.  That proposal is that I make, by way of final parenting order, orders that B continue to live with her (as she has done) but spend unsupervised time with her father each alternate weekend (with such time to commence on Friday afternoon and conclude on Sunday afternoon) and, commencing in April 2020, spend week about time with him during school holiday periods.  Those matters, in particular, persuade me on an interim basis that it is in B’s best interests that she be afforded immediately the opportunity to spend unsupervised weekend time with her father in a manner consistent, although not identical, to the proposal today advanced by the mother. 

9. Whilst it has been submitted on the mother’s behalf that such orders are proposed by her absent any change to her position advanced during the evidence (which concluded in early April 2019) to the effect that the father poses an unacceptable risk to B, there has been today a significant change in the mother’s position vis-à-vis that advanced on her behalf at the conclusion of that evidence – at which time it was advanced that it would be in B’s best interests for there to be a continuation of supervision of her time with her father on an indefinite basis. 

10. The period of time between this afternoon and 2.30 pm on 29 January 2020 is such that I am persuaded, on an interim basis, that B will not be an unacceptable risk of harm if she spends that time with her father on an unsupervised basis; I note, again, the mother’s proposal advanced today (following her successful application to reopen the evidence in order to advance that same) that orders ought be made on a final basis to provide for B to spend time with her father from Friday afternoon to Sunday afternoon each alternate weekend, and commencing in April of this year, for a week-long block of time.

11. For those very short reasons, delivered in the context where I intend to deliver significant written Reasons at the time I make final orders at 3.00 pm on 29 January 2020, I make orders in the following terms.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 24 January 2020.

Associate:

Date:              24 January 2020