FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dennis & Dennis [2022] FedCFamC2F 770
File number(s): NCC 2065 of 2021 Judgment of: JUDGE KEARNEY Date of judgment: 18 May 2022 Catchwords: FAMILY LAW – interlocutory parenting – insufficient evidence available to the Court – cross-allegations of family violence – high conflict parents – potential alignment - further independent material required – no change of residence at this time – no unacceptable risk found – interlocutory hearing adjourned for further material – best interest of children Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Eaby & Speelman (2015) FLC 93-654
Goodev Goode [2006] FamCA 1346
Johnson & Page [2007] FamCA 1235
Keats & Keats [2016] FamCAFC 156
SS & AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 108 Date of hearing: 16 May 2022 Place: Newcastle Counsel for the Applicant: Mr I Duane Solicitor for the Applicant: Darley Legal Solicitor for the Respondent: Ms Gillard, Gillard Family Lawyers ORDERS
NCC 2065 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DENNIS
Applicant
AND: MS DENNIS
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
18 MAY 2022
(AS AMENDED 31 MAY 2022)THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.The children X born in 2011, Y born in 2013 and Z (also known as Z) born in 2014 (“the children”) live with the father.
2.The children spend time with the mother:-
(a)each alternate weekend from the conclusion of school (or 3.00pm) on Friday until the commencement of school (or 9.00am) on Monday, commencing Friday 20 May 2022; and
(b)each alternate Wednesday from the conclusion of school (or 3.00pm) until the commencement of school (or 9.00am) on Thursday, commencing Wednesday 25 May 2022;
with such time to be supervised by the maternal grandmother Ms B.
3.To facilitate Order 2, unless otherwise agreed in writing between the parties, changeovers are to occur at the children’s school.
4.Unless otherwise provided for above, the mother, her servants and/or agents are restrained and an injunction shall issue prohibiting them from taking the children into her care.
5.The parties are permitted to provide a copy of these Orders to the children’s school.
6.The mother and the father are each restrained and an injunction shall issue restraining them from:
(a)consuming any alcohol for 24 hours before and during the time that the children are in their care;
(b)abusing, insulting, belittling, rebuking, or otherwise denigrating the other party or a member of the other party’s family, in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence; and
(c)discussing the proceedings or any allegations raised in these proceedings with the children or permitting any other…
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CaseChat Overview and Summary
The Court found that there was insufficient evidence available to make a definitive decision on the children’s residence and care arrangements. The allegations of family violence and high conflict between the parents made it difficult to determine the best interests of the children. Consequently, the Court decided that the children would continue to live with the father while the mother had supervised time with them. The Court also issued several other orders to manage the contact between the parents and the children, including restrictions on alcohol and drug consumption, prohibiting derogatory comments about the other parent, and requiring regular alcohol and drug testing. Additionally, the Court ordered the appointment of an Independent Children’s Lawyer and the preparation of a Family Report to provide further insight into the children’s best interests.
The Court adjourned the hearing to allow for the collection of additional evidence, including the Family Report, and directed the parties to file updated affidavits and Outlines of Case. The Court emphasised that the decision was interlocutory and subject to change as more information became available. The orders made by the Court aimed to ensure the safety and well-being of the children while the case progressed.
Orders
Orders of the court
NCC 2065 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR DENNIS
Applicant
AND:
MS DENNIS
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
18 MAY 2022
(AS AMENDED 31 MAY 2022)
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1. The children X born in 2011, Y born in 2013 and Z (also known as Z) born in 2014 (“the children”) live with the father.
2. The children spend time with the mother:-
(a) each alternate weekend from the conclusion of school (or 3.00pm) on Friday until the commencement of school (or 9.00am) on Monday, commencing Friday 20 May 2022; and
(b) each alternate Wednesday from the conclusion of school (or 3.00pm) until the commencement of school (or 9.00am) on Thursday, commencing Wednesday 25 May 2022;
with such time to be supervised by the maternal grandmother Ms B.
3. To facilitate Order 2, unless otherwise agreed in writing between the parties, changeovers are to occur at the children’s school.
4. Unless otherwise provided for above, the mother, her servants and/or agents are restrained and an injunction shall issue prohibiting them from taking the children into her care.
5. The parties are permitted to provide a copy of these Orders to the children’s school.
6. The mother and the father are each restrained and an injunction shall issue restraining them from:
(a) consuming any alcohol for 24 hours before and during the time that the children are in their care;
(b) abusing, insulting, belittling, rebuking, or otherwise denigrating the other party or a member of the other party’s family, in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence; and
(c) discussing the proceedings or any allegations raised in these proceedings with the children or permitting any other person to do so with their knowledge or in their presence.
7. Within 14 days of the date of these orders and thereafter every four (4) weeks, the Mother and Father undergo at their own expense Carbohydrate-Deficient Transferrin (CDT) testing at an accredited clinic for excessive alcohol use.
8. Within 14 days of the date of these orders the father shall, at his own expense, submit himself for hair testing for illicit drugs and excessive consumption of alcohol at an accredited clinic, provide no less than three (3) centimetres of hair for such testing, and is restrained from taking any steps to interfere with the test result, such results are to be provided to the mother’s solicitor within 48 hours of receiving same.
9. To give effect to Orders 7 and 8:
(a) Each party is restrained from cutting, bleaching, dying or otherwise altering their hair;
(b) Each party will provide no less than 3.8cm of hair for such testing;
(c) Each party is to provide the collector with a copy of these orders;
(d) Each party must provide the collector with photographic identification to be recorded before the hair collection.
10. Within seven (7) days of the test results being produced, the collector is to email a copy of same to all the parties via:
(a) The Father’s solicitor at info@darleylegal.com
(b) The Mother’s solicitor at reception@gflawyers.com.au: and
(c) The Independent Children’s Lawyer at the email address to be provided by the parties to their respective collectors within 48 hours of receipt of the Notice of Address for Service filed by the Independent Children’s Lawyer.
and to facilitate this occurring, this Order is an irrevocable authority by the mother and the father to the collector to provide the results of any hair strand tests to the parties’ legal representatives and the Independent Children’s Lawyer.
THE COURT FURTHER ORDERS THAT:
11. Pursuant to s 68L of the Family Law Act 1975, an Independent Children’s Lawyer be appointed for X born in 2011, Y born in 2013 and Z (also known as Z) born in 2014 (“the children”)
12. Legal Aid NSW is requested to make arrangements as soon as possible for appropriate representation for the Child/Children, and forthwith upon such appointment the Independent Children’s Lawyer file a Notice of Address for Service.
13. The Court advise Legal Aid NSW of this order forthwith.
14. Within seven (7) days of notification of the Independent Children’s Lawyer’s appointment or the filing of the Notice of Address for Service by the Independent Children’s Lawyer, each party make available to the Independent Children’s Lawyer copies of all applications, Notices of Child Abuse, Family Violence and Risk and affidavits upon which that party relies together with any court orders and copies of any relevant reports.
15. Orders 6, 7, 8 and 9 of the Orders made by Judge Betts on 28 February 2022 for the preparation of a family report are discharged.
16. Pursuant to s.62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon Ms C (‘the single expert’) on a date and at time to be advised for the purposes of the preparation of a Family Report and in particular:
(a) To consider the factors in ss 60CC & 65DAA of the Family Law Act 1975.
(b) To assess the parents (and other significant adults)
(c) To assess the parents interactions (and those of other significant adults)
(d) To assess the children’s developmental and emotional state.
(e) To assess the relationship of the children to the parents (and other significant persons) and the wishes of the children.
(f) To assess the proposals of each party as to the children’s future.
(g) To consider any other matter which the family consultant considers relevant to the Court’s determination.
17. In the first instance, the father shall pay for the costs of the Family Report with the mother to reimburse the father one-half of those costs at the finalisation of the proceedings, noting that the costs of the Family Report will include any costs associated with the witness expenses of the single expert for preparing and attending to give evidence at the trial.
18. If the single expert is unable to inspect documents produced in response to subpoena at the Newcastle Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the single expert, is to forward such documents to the Registry nominated by such consultant to permit such inspection.
19. The father is permitted to issue subpoenae to the following recipients:-
(a) The NSW Police provided that the documents sought to be produced must specifically identify the DVEC recordings of the children;
(b) The D Clinic;
(c) Medicare;
(d) E Counselling and Mediation Service;
(e) Suburb F Treatment Centre;
(f) NSW Health; and
(g) NSW Department of Communities and Justice.
20. Pursuant to r 6.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’), the Registry Manager is to request the Registrar of the Local Court of NSW at Suburb G to release to the Court the Local Court file pertaining to the criminal and ADVO proceedings heard on 4 May 2022, related to Ms Dennis (the defendant) and Ms H (the victim and/or person in need of protection) including police application event number ….
21. The interlocutory parenting application is adjourned to 2.15pm on 15 September 2022 for further hearing before Judge Kearney.
22. No later than 4.00pm 1 September 2022:-
(a) each party is to file and exchange with each other updating affidavits from themselves and any witnesses; and
(b) the Independent Children’s Lawyer is to file and serve any affidavits they intend to rely upon.
23. No later than 4.00pm 13 September 2022, each party is to file and serve an Outline of Case document in the approved form for interim hearings or in another form that addresses the same information prescribed within the approved form.
THE COURT NOTES THAT
A. Pursuant to r 12.06 of the Rules, the parties have until Monday 23 May 2022 to file and serve their costs notices.
B. In making these Orders the Court has received and accepts the undertaking provided by Ms B dated 18 May 2022 and filed with the Court.
AND THE COURT NOTES IN CHAMBERS
C. The Applicant father’s legal representatives did not press the orders relating to property in the Application in a Proceeding filed on 9 May 2022 and so for the purpose of the ongoing interlocutory proceedings, only parenting aspects remain.
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.
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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