Crowther & Bosworth
[2022] FedCFamC2F 288
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Crowther & Bosworth [2022] FedCFamC2F 288
File number: MLC 7224 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 4 March 2022 Catchwords: FAMILY LAW – interim parenting – child’s living arrangements – mental health issues – child to live with father – child to have supervised time with mother. Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 9 Date of hearing: 4 March 2022 Place: Shepparton (via Microsoft Teams) Counsel for the Applicant: Mr D Carne Solicitor for the Applicant: Kate Freshwater Lawyer Solicitor for the Respondent: Appeared In Person Solicitor for the Independent Children's Lawyer: Medson Legal Pty Ltd ORDERS
MLC 7224 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CROWTHER
Applicant
AND: MS BOSWORTH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
4 MARCH 2022
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.Orders 2 to 8 of the interim orders made on 18 August 2021 and Order 2 of the interim orders made 16 November 2021 are discharged.
2.Until further order the child X born in 2014 ('the child') live with Applicant Father from the conclusion of school on Friday 4 March 2022.
3.The Respondent Mother be and is restrained from personally attending the child's school or doing any other act or thing from disrupting the child living with the Applicant Father.
4.A copy of these orders be provided to the school that the child attends.
5.Within 72 hours, the Applicant Father and Respondent Mother do all acts and things required to engage in D Family Services, Town B ('the Contact Centre') intake process.
6.The child spend supervised time with the Respondent Mother at the Contact Centre in accordance with the availability, recommendations and directions of the Contact Centre, to commence as soon as possible.
7.The parties obtain a report at their joint expense (and if necessary the Applicant Father pay in the first instance) from the Contact Centre about the Mothers time spent with the child at the Contact Centre and a copy of that report be filed on affidavit no less than 7 days prior to the return date.
8.The child be at liberty to communicate with the Mother by telephone, video or text message at all reasonable times with the Father to facilitate such contact and afford the child privacy during such contact.
9.The Father do all acts and things to cause and ensure that the child speak with the Respondent Mother by telephone or video each Sunday between 6.00pm-6.30pm.
10.On or before 1 May 2022, the Mother is to do all act and things necessary to obtain an up to date report as to her psychiatric health from her treating doctor, Dr C.
11.The Independent Children's Lawyer provide to Dr C any of the documents filed in the proceedings (including the Applicant Father's affidavits), the Independent Children's Lawyer's subpoena bundle tendered today as 'ICL1 4 March 2022' and when available, a transcript of the proceedings of this day.
12.A transcript of the proceedings today be kept on the court file and provided to the parties.
Child Impact Report
13.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and the child X born in 2014 are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children's Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
Part 1 of the event will occur by video, using Microsoft Teams, on 3 June 2022 with:
(a)the Applicant to attend at 9.00am; and
(b)the Respondent to attend at 10.30am.
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
Part 2 of the event will occur in person at the Melbourne registry on the morning of 8 June 2022. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.
14.Each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
15.The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
16.Not later than 4.00 pm on 11 March 2022 the parties must provide their contact telephone numbers and email addresses to [email protected].
17.Pursuant to order 13 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the child and any matters (such as the child's maturity or level of understanding) that would affect the weight that the court should place on those views;
(d)the impact of the issues/dispute before the Court on the child.
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child.
18.Upon completion, the Child Impact Report shall be provided to the registrar for release to the parties, including by way of order made in Chambers.
19.The Court Child Expert shall be at liberty to inspect any material filed by the parties, and any subpoenaed documents, and otherwise:
(a)ICL1 - 4 March 2022 - Independent Children's Lawyer tender bundle
20.The matter be adjourned for mention in the Shepparton Circuit sittings of the Federal Circuit and Family Court of Australia on 16 May 2022.
21.The matter be adjourned for interim defended hearing in the August 2022 Shepparton Circuit sittings of the Federal Circuit and Family Court of Australia on a date to be advised after the preparation of the child impact report.
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.
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 Crowther & Bosworth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore in a busy Shepparton circuit list. The proceedings concern the child X (‘the child’) who is aged seven. The applicant father is Mr Crowther (‘the Father’), the respondent mother is Ms Bosworth (‘the Mother). The third party to the proceedings is the Independent Children’s Lawyer (‘the ICL’).
The Mother did not file material as ordered or appear last Monday when the matter was listed. I adjourned the matter for four days to today to give the Mother another chance to appear in her own court case. On this occasion she appeared by telephone.
I will make the orders sought by the Father and the ICL. That is, that the child will, for the time being, or what we call until further order, live with the Father, and when it is able to be organised, the Mother will have supervised time with the child at the D Supervised Contact Centre.
The reasons for that very drastic change in the child’s living arrangements are that there is a real and substantial risk that the Mother’s mental health has recently significantly deteriorated, and that she has either a delusional belief or delusions as to being bombarded with radio waves and noises, and potentially or possibly from neighbours. Alternatively, the other risk is that, in fact, the Mother’s home is being bombarded by radio waves, and this is unlikely to be an accidental event, and it would mean that there is some malign influence. Balancing those two risks, and in the circumstances of the Mother’s past mental health reports, it is more likely that there has been a serious deterioration in the Mother’s mental health.
However, I am not in a position to determine that, but I am concerned about the circumstances of the child residing with her mother in the home where her mother is doing her best to cope with the situation of conducting day-to-day life and protecting herself, the child, and her home against what she sees as the intruding noises and radio waves. The alternative is that she is doing the best she can to deal with her mental health, and I notice and note that she is involved significantly with Dr C.
I will also add there is liberty to apply, so that in the event that the Mother’s mental health is reviewed in the very short term and I have further evidence about that, she will be permitted to make an application and bring the matter before the Court. In any event, I want to review this matter as soon as I can, and the matter will be listed for mention on the first day of the May circuit. I will order a family impact statement which will assess and look at, from an independent point of view, the child’s welfare and her relationships with both parents.
I am also going to list the matter for interim defended hearing, which means I have more time to deal with it, in the August circuit sittings of the Court. I am concerned at the impact upon the child of the very severe interruption of her time with her mother, but I am also very concerned at what may be the Mother's inability to be able to have the Father have a role in the child’s life. It is not yet clear to me whether that inability on the Mother’s part is due to the deterioration in her mental health or whether she simply does not value the role of the Father in the child’s life, or some combination thereof.
I am also concerned at the Mother’s failure to appear before me when the matter was listed given the importance of being engaged in these proceeding, and this is not the first time that she has not appeared before the Court. The ICL has gone to an unusual length to try and have the Mother involved in the proceedings. The evidence before me is of some significant uncertainty, and I note that the Mother has been most frank and even unguarded and not in any way contrived or deceitful before me. I give her significant credit for that frankness. I will further order that a copy of the transcript be ordered for the court file and that a copy be provided to the parties.
Nonetheless, I have determined that the orders I will make will be those that I have referred to. I will now read out the other orders (draft orders read out). So, these orders that I make are for the time being. They can be reviewed if the Mother files an application or if the Father does, and in any event, the matter will be before me in May for review and then again in August for review after I have the child impact statement.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 15 March 2022
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