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…
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CaseChat Overview and Summary
The court was tasked with determining the primary residence of the children, the nature and frequency of their contact with their mother, and the terms of communication between the mother and children. Additionally, the court needed to consider injunctive relief to prevent certain behaviours and to manage the proximity of specific individuals to contact centres. The proceedings also involved directions for a Child Inclusive Conference and the preparation of a Family Report, as well as setting a timetable for future hearings and the filing of evidence.
O'Shannessy J made orders that, until further notice, the children would live with their maternal grandmother. The mother's time with the children was to be supervised by a contact centre, with a request for monthly visits, and the maternal grandmother was responsible for the children's transport to and from these sessions. The court also ordered that the children communicate with their mother by speakerphone each Monday. Injunctions were granted to prevent parties from abusing or discussing the proceedings in the presence of the children, and to restrain the mother's partner and the second respondent from attending the vicinity of the contact centre during supervised visits. The court further directed the parties and children to attend a Child Inclusive Conference and a Family Report assessment, with specific requirements for the content of the report and the matters to be addressed under relevant sections of the *Family Law Act 1975*. The matter was adjourned for an interim defended hearing and a final hearing was scheduled.
Orders
Orders of the court
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 2021 2022 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'shannessy@federalcircuitcourt.gov.au.
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.
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
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