Colombo & Richardson (No 2)
[2021] FCCA 790
•18 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Colombo & Richardson (No 2) [2021] FCCA 790
File number: MLC 12837 of 2018 Judgment of: JUDGE O'SHANNESSY Date of judgment: 18 March 2021 Catchwords: FAMILY LAW – Interim parenting – where mother was permitted to re-visit final orders – supervised time – where children live with grandmother – where mother is to spend supervised time with children. Legislation: Family Law Act 1975 (Cth), ss 60CC(2), (2A) Cases cited: Goode & Goode [2006] FLC ¶93-286 Number of paragraphs: 12 Date of hearing: 18 March 2021 Place: Melbourne Counsel for the Applicant: Mr P Harrison Solicitor for the Applicant: Faram Ritchie Davies Counsel for the First Respondent: Mr P Testart Solicitor for the First Respondent: Morrison and Sawers The Second Respondent: Appeared In Person Counsel for the Independent Children's Lawyer: Ms M McNamee Solicitor for the Independent Children's Lawyer: Medson Legal Pty Ltd ORDERS
MLC 12837 of 2018 BETWEEN: MS COLOMBO
Applicant
AND: MS RICHARDSON
First Respondent
MR WEST
Second Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
18 MARCH 2021
Amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001
THE COURT ORDERS THAT:
1.Until further order, the children X born in 2008, Y born in 2012 and Z born in 2014 ("the children"), live with the Maternal Grandmother.
2.Until further order, the children continue to spend time with the Mother supervised by B Contact Centre, Town C ("the Contact Centre") at such times as nominated by the Contact Centre, and it is requested that such time be monthly.
3.The Maternal Grandmother is to deliver the children to and collect the children from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly to leave the building and the vicinity, unless requested to remain by a staff member of the Contact Centre.
4.Until further order, the children are to communicate with the Mother by telephone on speakerphone each Monday at 5:30 pm with the Mother to initiate such calls.
5.Until further order, the parties, their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking, or otherwise denigrating another party to these proceedings; and
(b)discussing the proceedings or any other proceedings in which a party to these proceedings is a party,
(c)to or in the presence or hearing of the said children or any of them and from permitting any other person so to do.
6.Paragraph 1 of the Orders made by Consent on 9 December 2020 be varied to include the following sub paragraph:
1 (vii)The frequency of the supervised spend time visits at the Contact Centre to take place each four weeks commencing Sunday 21 March 2021.
7.The mother be and is hereby restrained by injunction from allowing, bringing and/or permitting her partner Mr D to be within the vicinity of the Contact Centre for two hours prior to the supervised spend time ("spend time") as set out in paragraph 1 of the Orders made by consent on 9 October 2020, during all spend time and for two hours after the conclusion of the spend time.
8.The Second Respondent MR WEST and MS E be and are hereby restrained by injunction from being within the vicinity of the Contact Centre for two hours prior to the supervised spend time ("spend time") as set out in paragraph 1 of the Orders made by consent on 9 October 2020, during all spend time and for two hours after the conclusion of the spend time.
Child Inclusive Conference
9.Pursuant to section 11F of the Family Law Act 1975, the parties and the children X born in 2008, Y born in 2012 and Z born in 2014 attend upon a Family Consultant of the Federal Circuit Court of Australia ("the Family Consultant") for the purposes of a Child Inclusive Conference on 20 July 2021 via Microsoft Teams; AND:
(a)the parent with the child will be interviewed at 9.00 am;
(b)the other parent will be interviewed at 10.30 am; and
(c)the interview arrangements for the children (date and time) will be advised by email.
10.The Family Consultant shall have leave to inspect any subpoenaed documents.
Family Report
11.Pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children X born in 2008, Y born in 2012 and Z born in 2014 attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report to be given to the Court by 23 November 2021 AND THAT:
(a)The Family Report address the matters relevant to ss.60CC, 61DA and 65DAA of the Family Law Act 1975 and any other matters that the Family Consultant considers important to the welfare or best interests of the children.
(b)The parties comply with all reasonable directions of the Family Consultant.
(c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court.
12.Leave is granted to each of the parties and the Independent Children's Lawyer to provide a copy of the Family Report to a convener of any legal dispute resolution conference.
Adjournments and Trial Directions
13.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 29 July 2021 at 9.30am for Interim Defended Hearing.
14.The proceedings be adjourned to 15 March
20212022 at 10.00am for a special fixture Final Hearing (with an estimated hearing time of 4 days) at the Federal Circuit Court of Australia at Melbourne.15.The matter may be listed for a compliance mention by telephone approximately 2 weeks prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.
16.The party responsible for the payment of any fee including a setting down or hearing fee 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) Regulation 2012.
17.The Applicant file and serve any Amended Application and a trial affidavit and, if relevant, an updated Financial Statement, upon which she seeks to rely by no later than 56 days prior to the Final Hearing.
18.The First Respondent file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which she seeks to rely by no later than 42 days prior to the Final Hearing.
19.The Second Respondent file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which he seeks to rely by no later than 42 days prior to the Final Hearing.
20.The Independent Children's Lawyer file and serve any material on which they seek to rely by no later than 28 days prior to the Final Hearing.
21.Each of the parties be at liberty to file a short affidavit in reply by no later than 21 days prior to Final Hearing.
22.The parties be at liberty to rely upon any affidavit material previously filed in these proceedings and merely file an updating affidavit, provided that written notice is given to the other party at the same time as required for filing a trial affidavit provided above.
23.For in person final hearings, parties are directed to have multiple copies of the documents they seek to tender and have multiple copies of documents available to witnesses.
24.Each party file and serve a case outline by no later than 7 days prior to trial and provide a copy in Word format to: associate.judgeo'[email protected].
AND THE COURT NOTES THAT:
A.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.
B.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.
C.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.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 under the pseudonym Colombo & Richardson (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
These are the settled reasons of an ex tempore judgment I delivered on 18 March 2021. I had the day prior on 17 March 2021 delivered an ex tempore judgement and made orders about a dispute concerning whether the Mother could or could not by application of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) or the application of what is known as the rule of Rice v Asplund [1978] FamCAFC 128 bring an application to revisit final orders. I determined that the Mother could bring an application to revisit final orders concerning where her children would live and when and how she could see them pursuant to rule 16.05 and that there were sufficient new facts and circumstances as would warrant final orders as to their welfare being revisited. The settled reasons of that ex tempore decision is described as Colombo & Richardson [2021] FCCA 789.
I did not then repeat the background of the parties and the children. I now repeat those matters as stated in the decision made the previous day: The applicant mother, Ms Colombo ('the Mother'), is aged 28, and the second respondent father, Mr West ('the Father'), is 31. The Father and the Mother have three children: X, aged 10; Y, aged 8; and Z, aged 6 ('the children'). The first respondent is Ms Richardson ('the Maternal Grandmother'). The Maternal Grandmother is the mother of Ms Colombo, and she is aged 45. The Maternal Grandmother has other children: Mr F, who is aged 18, G, aged 11, and H, who is aged 10. The Father has re-partnered with Ms E, and Ms E has some other children, and, significantly, as I understand it, her youngest, J, is aged 9.
I did not then recite any of the law relating to an interim hearing. I had listed the matter into the following day when I already had other matters listed requiring urgent attention and that limited the time available to provide detailed reasons. I endeavoured to follow the authority of Goode & Goode [2006] FLC 93-286 (‘Goode & Goode’) and particularly paragraph 82 and other authorities concerning interim hearings in children's matters. The balance of these reasons are only revised for grammar and to identify when an interjection occurred.
I need to consider the best interests of the children, and this is a case that throws up into sharp context 60CC(2) and 60CC(2A) of the Family Law Act 1975 (Cth) ('the Act'):
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The bottom line is that I am to promote a meaningful relationship with both parents where it is safe to do so, and where there is a conflict between the two, I am to err on the side of the safety of the children from physical, psychological, or any risk of abuse. I take into account all of the matters under section 60CC of the Act, and in particular, one that throws up at this point is the issue of the consequences of a change of the arrangement. I take all those matters into account.
I find that there is substantial and compelling evidence that the Mother and Mr K wreaked a violent attack on the Maternal Grandmother's household on 17 February 2020, and upon the Father and Ms E on 17 February 2020. However, I do not actually find, on the balance of probabilities, that that has occurred, because the parties have not had the opportunity to explore that issue at a final hearing with necessary cross-examination. However, it is clear that there is strong and compelling evidence that that may well have occurred, and I proceed on the basis that there is a real risk that that is one of the matters that the children have had to deal with in their lifetime.
I am dealing with this on an interim basis. The competing cases for residence of these children, between the Mother and the Maternal Grandmother, centre on a much wider factual basis than the events of 17 February 2020, though it is likely to be a significant matter in these children's lives. It is for those reasons why I would not consider time other than supervised, and supervised by a specialist facility with expertise in children's welfare, and sadly, inevitably, in this day and age, when dealing with children's welfare, the exposure of children to violence and family violence is, unfortunately, a necessary part of that expertise.
I am satisfied that B Contact Centre has appropriate and significant expertise to deal with the children's welfare in a supervised visit, in the circumstances that those events of 17 February 2020 may well have occurred as the Maternal Grandmother says. I take into account that the Maternal Grandmother having had the burden of caring for these children since September 2018, continuously up until 9 December 2020, and knowing the children as she knew them at that time was of the view that there was no unacceptable risk to the children spending supervised time at B Contact Centre, albeit and I do not dismiss the dynamics of negotiation between parties on a court date and the circumstance that the Maternal Grandmother is over Microsoft Teams. But nonetheless, the Maternal Grandmother knew a fair bit about these children, and on 9 December 2020 was prepared to agree to ongoing supervised time.
That first supervised visit, up until a certain point in the day, I find on what I have been told by Ms Medson, the Independent Children's Lawyer (“ICL”) and her counsel that that went well, and both the children and their Mother behaved appropriately, and in particular, the children were affectionate with their Mother. I am concerned for these children now I have to deal with the situation of they did see their Mother on 24 February 2021. Mr Testart submits that that was an error on his client's part to agree to that commencing. I am unable to find that. I have the fact that she did consent and that she consented represented by solicitor and counsel after the matter had been issued, if you like, back in the previous October.
I also take into account what the Maternal Grandmother has just told me (she interjected during my reasons at the point just repeated in these settled reasons) that she felt that she had to agree to that. However, I place some weight on the fact that she did, because at that point in time, she had been caring for the children for more than two years. Now, one of the many problems in this case is we then have the events following what would otherwise have been a successful contact visit, whereby the men in these children's lives, either one of them or both of them, were involved in stupid intimidatory behaviour, and the Maternal Grandmother says that she felt intimidated. The Father says he felt intimidated. Mr D says he felt intimidated, and he takes out an intervention order. There is in fact an intervention order both ways, arising out of the circumstances after the visit that I find was otherwise successful.
Balancing those two risks, that is, of putting the children's relationship with their Mother on further hold until August 2021, by which time we are getting on for three years from when they spent regular time with their Mother, and the risk that children will be traumatised in the supervised contact setting. My finding is that the least worst scenario is the resumption of supervised time at B Contact Centre on a monthly basis. I take into account that the only information that I have about how that visit progressed is from Ms Medson via the supervised centre. The submissions of Mr Testart, powerful and persuasive though they are, raise the situation of I should not do anything until I have more and better information. There is substance in that, save that the consequence of me not doing anything is that the children will not have the opportunity to know the Mother at all.
This is a case where the Mother ran away from her carer when she was a child, to live with someone who she barely knew, that was her mother, the Maternal Grandmother in this case, and it throws up into stark relief the difficult circumstances for children who do not get to see at all the other parent and the consequences down the line. I do not find that that is the case here, but this is a circumstance where these children lived with their Mother until September 2018, have not seen her since, save for that one visit. It may well be almost entirely the Mother's fault, but it is not in any way the children's fault, and so they are the reasons that I will make those orders.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 21 April 2021
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