Costa and Costa (No 2)

[2015] FamCA 1191

FAMILY COURT OF AUSTRALIA

COSTA & COSTA (NO. 2) [2015] FamCA 1191

FAMILY LAW – CHILDREN – With whom a child spends time – Risk of harm – Location where the time with the father should take place.
FAMILY LAW – EVIDENCE – Expert evidence – Material to be provided to the expert.

APPLICANT: Mr Costa

RESPONDENT: Ms Costa

INDEPENDENT CHILDREN’S LAWYER: Ms Soliman

FILE NUMBER: PAC 984 of 2015

DATE DELIVERED: 14 December 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 14 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Obradovic

SOLICITOR FOR THE APPLICANT: JAS Legal Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Jenkins

SOLICITOR FOR THE RESPONDENT: Aitken Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

Orders

(1)The larger handwritten minute of order document dated 14 December 2015 shall become Court’s Exhibit “A” in today’s proceedings.

(2)By consent and pending further order, orders are made in accordance with paragraphs 1 to 8 of Court’s Exhibit “A”, being:

1.That orders 2 and 4 of 21 May 2015 made by Judge Donald are varied as contained in orders 2, 6 and 8(a) hereof.

2.That the children [M] (DOB [… 2004]) and [Y] (DOB [… 2008]) spend time with the father each Saturday, commencing 19 December 2015, from 12:30pm to 4:30pm, and that all such time be supervised by a privately funded supervisor, being any one of Bridging Families, Connecting Families or otherwise as agreed, and for the cost of such supervision to be shared between the parties. For the purpose of this order, changeover shall occur at [P] Library.

3.That the father’s application in a case filed on 12 October 2015 is otherwise withdrawn without prejudice and with no order as to costs.

4.That the mother within 28 days file and serve a further amended response indicating, inter alia, what property adjustment orders, if any, she is seeking on a final basis.

5.That the mother is injuncted from changing the children’s school without further order or by agreement between the parties in writing.

6.That in addition to the time provided for in order 2 hereof, the children may spend any additional time with the father as the parties may agree to in writing.

7.That the parties attend a Conciliation Conference at the first available opportunity and on a date suitable to the Court.

8.That the parties forthwith do all acts and things necessary to cause to be released from the father’s/husband’s superannuation fund with CBUS the amount of $20,000 and that such funds shall be applied as follows:

a.   As to $10,000 – for the purpose of payment of the privately funded supervision referred to in order 2 above. The parties shall do all acts and things necessary to cause $10,000 to be deposited in an interest bearing account (being a controlled monies account) in the parties’ joint names, and moneys withdrawn from that account as necessary to pay for the supervision of the father’s time with the children;

b.   As to $10,000 – for the purpose of payment of the Single Expert pursuant to these orders;

c.   That in the event there are any funds that remain after all expenses are paid pursuant to order 8(a) and (b) they shall remain in the controlled monies account referred to in order 8(a) and be dispersed by agreement or otherwise by Court order.

(3)Pursuant to Section 65DA(2) 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 party contravenes these Orders are included in these Orders, annexed hereto.

(4)The additional order sought by the mother in respect of the children’s time with the father is declined.

(5)If the parties reach agreement as to all of the terms in relation to the engagement of an expert including in particular the material to be provided to the expert, then such a consent order can be provided to me in Chamber and the orders can be made.

(6)In the event that one of the parties seeks to be further heard in relation to the material to be provided to the expert then an Application in a Case with respect to that will need to be filed.

Notations

(7)Paragraphs A, B and C set out under the heading “Notation” of Court’s Exhibit “A” are noted, being:

a.   The parties agree that Ms Z (the babysitter) may be suitable to supervise the children’s time with the father pursuant to order 2, and the mother shall make all appropriate enquiries to ascertain Ms Z’s availability.

b.   The parties agree that the children currently attend X Public School and shall remain at that school pending further order.

c.   It is envisaged by the parties that if they are unable to pay for the cost of supervision pursuant to order 2 hereof, then they may apply for a further release of funds.

(8)I do not propose making the orders in the minute of proposed order of the Independent Children’s Lawyer at this stage.

(9)So far as material from police records or related to any matters with which the father has been charged is concerned, that the court records and in particular any findings by the Magistrate or agreed statements of fact would be the material that ought to go to the expert of such incidents rather than police records relating to those incidents.

(10)If the Independent Children’s Lawyer requires the assistance of the Registrar in requesting those records from the Registrar of a Local Court that can be done separately.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 984  of 2015

Mr Costa

Applicant

And

Ms Costa

Respondent

REASONS FOR JUDGMENT

1.With respect to the additional order proposed by the mother, I refuse the application for that order and decline to make the additional proposed order as submitted by the Independent Children’s Lawyer (ICL).  The issues of risk that arise in this matter relate to the father and the father’s conduct.  That risk is mitigated by the supervision being provided.  There is no suggestion that some sort of trauma is associated with a place at which alleged events are said to take place, as submitted on behalf of the father.  There is an allegation that one of these events took place at another family member’s home and there is no prohibition in respect of that home.  I think the home also clearly provides some sort of connection for the children with their past and a more stable and happy time. It does not seem to be a necessary thing that arises because of risk and I decline to make the proposed order for that reason.

2.So far as the minute of proposed order of the ICL is concerned, I don’t propose making that order at this stage because, in my view, the issue of the documents to be provided to the expert must be settled prior to that minute being made.  In the event that one of the parties seeks to be further heard in relation to the material to be provided to the expert, then an Application in a Case with respect to that will need to be filed.  I do, however, make a notation that so far as material related to any matters with which the father has been charged is concerned, the court records and, in particular, any findings by the magistrate or agreed statements of fact would be the material that ought to go to the expert in respect of such incidents, rather than police records relating to those incidents. If the ICL requires the assistance of the Registrar in requesting those records from the Registrar of a Local Court, that can be done separately.

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 14 December 2015.

Legal Associate: 

Date:  13 January 2015