Delvin & Olason

[2021] FCCA 983

FEDERAL CIRCUIT COURT OF AUSTRALIA

Delvin & Olason [2021] FCCA 983

File number:	DNC 648 of 2020
Judgment of:	JUDGE YOUNG
Date of judgment:	13 April 2021
Catchwords:	FAMILY LAW – parenting – interim hearing – application concerning two children who are twelve and three years old – whether the children should spend time with the father – where the children live with the mother – where the parties substantially agree to the recommendations of the Family Consultant – where the child expressed hesitation about spending time with the father – where paternity testing revealed the applicant is the father of the younger child – Court satisfied the children should spend gradually increasing time with the father.
Legislation:	Family Law Act 1975 (Cth) s 11F
Number of paragraphs:	9
Date of hearing:	13 April 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Holtham of Story & Associates
Solicitor for the Respondent:	Ms Bowen of Bowen Lawyers

ORDERS

DNC 648 of 2020

BETWEEN:

MR DELVIN

Applicant

AND:

MS OLASON

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	13 APRIL 2020

THE COURT ORDERS UNTIL FURTHER ORDER:

Parenting issues

1.That the children X born in 2009 and Y born in 2017 (“the children”) live with the Respondent mother (“the mother”).

2.That the children spend time with the father as agreed to between the parties in writing, and in the absence of agreement, as follows:

(a)For a period of 6 visits supervised at B Families NT once a week or at times suitable to B Families NT.

3.That thereafter, the children shall spend unsupervised time on the following basis with the father provided the child X has no strong objections, with the following to apply:

(a)Time shall be from 12:00pm to 4:00pm each Saturday or at other times convenient to B Families NT; and

(b)In assessing whether X has strong objections, the Independent Children’s Lawyer shall speak with X to ascertain his view. 

4.If the father is unable to spend time with the children in accordance with order 3(a) above, he shall provide notice to the mother’s lawyer at least 3 days prior to the time he becomes aware his inability to spend time with the children.

Communication

5.That the parties shall communicate with one another only through their solicitors, in the presence of a family dispute resolution practitioner, or B Families worker, and in the event of emergencies concerning the children the parties may communicate by text message or email.

Changeovers

6.That changeovers shall occur at B Families.

Notices

7.That the mother or the father, as the case may be, shall inform the other as soon as practicable, of any medical and like emergencies concerning the children that may arise, when the children are in the respective parent’s care, and are to provide the other parent details of any treating practitioners, hospitalisation and medication.

8.That the mother and the father shall keep each other informed of their current residential addresses and telephone numbers, and any changes to those details within 48 hours from the changes occurring.

9.That each parent shall inform the other of and follow all directions regarding medication and treatment for the children, as recommended by a qualified medical practitioner.

10.That each parent shall be at liberty to obtain from the school information about the children’s attendance and progress at their school, notices of any events, school reports, or school photographs at the expense of the requesting party, and shall be at liberty to attend any events the parents are ordinarily invited to attend, and these orders authorise the children’s school to release the documents to the requesting parent.

11.That each parent shall inform the other parent of any doctors, specialists, or treating practitioners’ appointments the children attend, and be at liberty to obtain all and any information from the doctor or treating practitioner about the children’s wellbeing and treatment.

Miscellaneous

12.That neither parent shall denigrate the other, any member of their respective family, the children, or in the hearing of the children, and shall take all necessary steps to ensure that the children are not exposed to any third parties doing so.

Independent Children’s Lawyer

13.That pursuant to s.68L(2) of the Family Law Act 1975, the interests of the children X born in 2009 and Y born in 2017 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the children’s interests.

14.That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

15.That upon filing a Notice of Address for Service, the Independent Children’s lawyer have leave to inspect and / or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

16.That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

17.That neither parent shall discuss adult issues or court orders with or in the hearing of the children.

18.That the parent with whom the child is spending time in accordance with these orders, or as otherwise agreed to between the parties, shall take all necessary steps to deliver the children to any extra-curricular activities, that may fall during the time the children are spending with the respective parent.  

19.That pursuant to s.11F of the Family Law Act 1975, the parties and the child X born in 2009 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Darwin on a date to be advised to the parties in approximately five months’ time to assess for the children to commence spending overnight times with the father. The parties are to confirm their attendance to the Case Co-ordinator Child Dispute Services by email at [email protected] or alternately call 1300 352 000 fourteen days prior to the date of the interview and in the event such confirmation is not received the interviews will be cancelled NOTING that the family consultant is to have discretion as to how the parties attend.

20.That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

21.That pursuant to section 65DA(2) and 62B of the Family Law Act, 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 attached hereto, and those particulars are included in these orders.

Property Distribution Orders:

22.In the event that Mr C lives at D Street, Suburb E, the Respondent shall pay $200 each week to an account nominated by the Applicant by way of contribution to outgoings associated with that property.

23.That the Applicant sign all documents necessary and do all things required in order to transfer to the Respondent all his right title and interest in the Motor Vehicle 1 with Northern Territory Registration ....

24.That the parties attend a Conciliation Conference with a Registrar of this Court at Darwin on 30 June 2021 at 9.00am.

25.That the Applicant pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 at least 28 days prior to the Conciliation Conference unless otherwise exempted from payment.

26.That the Respondent reimburse the Applicant one half of the Conciliation Conference fee within 14 days thereafter.

27.That within 28 days the parties provide mutual informal discovery of all documents in their respective possession, custody or control.

28.That the parties prepare a draft joint statement of assets and liabilities no less than 14 days before the conference date.

29.That with respect of any asset the value of which is not agreed the parties obtain a joint written valuation at their joint expense to be available within 14 days prior to the conciliation conference.

30.That in the event either party seeks a superannuation splitting order that a copy of the proposed splitting order be served upon the Trustee of the superannuation fund at least 14 days prior to the conciliation conference.

31.That in the event that valuations have not been agreed by the parties they are to notify the Registrar 14 days prior to the conciliation conference and confirm if the conference is to proceed.

32.That the matter be adjourned to the trial call-over list 1 October 2021 at 11.30am for further directions.

33.That the parties no less than seven (7) days prior to the call-over date provide to the Court:

(a)A brief Summary of Argument including Minute of Orders sought; and

(b)A Trial plan indicating estimated length of trial sought and witnesses relied upon at trial.

34.That both parties produce to the other fourteen (14)days prior to the conciliation conference, documents as prescribed in Annexure A to this order.

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 Delvin & Olason is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is a parenting matter concerning two children: X, who is 12 years old and, more recently, Y, who, following a paternity test, has been shown to be the child of the father.  Y is three years old.  Both children live with the mother in the former matrimonial home which is apparently in the sole name of the father.

2. The parties in relation to children’s matters are not far apart. They essentially adopt the recommendations of the Family Consultant in the Child Inclusive Conference Memorandum produced pursuant section 11F of the Family Law Act 1975 (Cth). It should be noted that the Memorandum only dealt with X as the issue of Y’s paternity had not been resolved at the time the Memorandum was produced.

3. The Family Consultant recommended that X should commence spending supervised time with the father at B Families once a week for a period of six weeks.  The parties have agreed that that should be reformulated to a period of six visits at times that B Families can accommodate. This was reformulated to acknowledge the fact that B Families may not be able to accommodate weekly visits. Secondly, it was recommended that at the end of the contemplated six weeks X would commence unsupervised time with the father during the day unless X strongly objected. The specific recommendations were for one afternoon after school and on Saturday or Sunday and that that arrangement continue for twelve weeks. After twelve weeks of unsupervised time it was recommended that the parents and X attend a Child Inclusive Conference, or alternatively, a Family Report be ordered to further assess whether overnight time should commence. It was recommended that changeovers occur at X’s school or at B Families and that there be no face-to-face contact or communication between the parties. This recommendation was made due to the hostility between the parties and the allegations of family violence, particularly the allegations of the father’s controlling and coercive behaviour towards the mother where she says that she cannot contemplate dealing with him face-to-face. 

4. I consider there is a proper basis for each of those recommendations, however, some modification has to take place.  For example, it is agreed between the parties that Y should now be included in those arrangements which means that changeover at school is not easily accommodated or accommodated at all. The other issue is if changeovers are to take place at B Families then the recommendation that X spend one afternoon with the father after school until sometime in the evening cannot properly be accommodated because B Families will close at about 5:30pm.  While there is nothing inappropriate about the recommendation it is impracticable. I do not propose to adopt that aspect of the recommendation. 

5. The reason for the structure of the proposal, which both parties have agreed to, is that it contemplates X’s somewhat ambivalent relationship or attitude to his father.  The reasons for that are unclear. X has been assessed by the Family Consultant as a friendly, cheerful and sensible boy, in other words, I infer, a child whose views and maturity are to be given some degree of weight. X expressed some hesitation about spending time with his father, essentially because his father had yelled at him and he felt somewhat nervous about spending time with his father. 

6. Accepting all of that is the case for the purpose of this interim hearing it follows that what is necessary is a period of confidence building between X and his father.  Given Y’s age, one hopes that there also is a chance for her to develop a meaningful relationship with her father. However, for the reasons that I have just described, X’s position is the one that most importantly needs to be accommodated somehow.  I am satisfied that the way to do that is to, essentially, adopt the recommendations of the Family Consultant.

7. I propose to make orders largely keeping with the father’s proposed parenting orders, although alteration is required to provide for six visits rather than six weeks.

8. There should be an order inserted that reflects the mother’s proposed order 5, namely that the Independent Children’s Lawyer is to speak with X to ascertain his views as to whether he strongly objects to spending unsupervised time with the father.  X’s objection is in relation to whether the 12-week unsupervised period starts at the end of the six visits. If this time does go ahead it is to be for four hours from 12:00pm to 4:00pm, or at other times as convenient to B Families, on Saturday or Sunday.  If the father is unable to be present on a Saturday or Sunday, he is to ensure that the mother’s solicitor is notified in writing by text message at least three days in advance.

9. I will also make an order that in the event Mr C resides in the former matrimonial property then the mother is to contribute $200.00 per week to the outgoings of the property and mortgage rates and this is to be paid directly into the husband’s bank account.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       11 May 2020