Donalds and Donalds (No 4)

[2021] FCCA 1618

FEDERAL CIRCUIT COURT OF AUSTRALIA

Donalds & Donalds (No 4) [2021] FCCA 1618

File number(s):	MLC 11505 of 2020
Judgment of:	JUDGE CARTER
Date of judgment:	9 June 2021
Catchwords:	FAMILY LAW – section 102NA appointment – insufficient time to prepare for trial – transfer to Family Court of Australia.
Legislation:	Federal Circuit Court Act 1999 (Cth) s 39
Number of paragraphs:	10
Date of hearing:	9 June 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Nicholas Gardiner
Solicitor for the Applicant:	Mr Sam David
Counsel for the Respondent:	Mr Cameron Allen
Solicitor for the Respondent:	Ms Danielle Webb
Counsel for the ICL:	Mr Soren Heggie
Solicitor for the ICL:	Nicholes Law

ORDERS

MLC 11505 of 2020

BETWEEN:

MR DONALDS

Applicant

AND:

MS DONALDS

Respondent

ORDER MADE BY:	JUDGE CARTER
DATE OF ORDER:	9 JUNE 2021

THE COURT ORDERS THAT:

Transfer to the FCoA

1.Pursuant to section 39 of the Federal Circuit Court Act 1999 (Cth), these proceedings be transferred to the Melbourne Registry of the Family Court of Australia to be listed on a date to be advised.

Time and Communication

2.The child Y born in 2021 (“Y”) spend time with the Father as follows:

(a)for the first half hour of the time the child X born in 2019 (“X”) spends with the Father pursuant to paragraph 3 of the interim orders made on 21 December 2020; and

(b)by participating in a Zoom meeting with X where practicable, with the Mother to facilitate the calls.

Psychological assessment

3.Both parties undergo a psychological assessment with a psychologist nominated by the Independent Children’s Lawyer with each party to be responsible for their own costs associated AND IT IS REQUESTED THAT Victoria Legal Aid meet the costs of the Mother’s assessment if she is in receipt of a grant of aid (and with the Mother to be responsible for the costs of same in the event that she is not in receipt of a grant of aid).

Costs

4.The Applicant’s costs of today be reserved.

THE COURT FURTHER ORDERS BY CONSENT THAT:

5.The ICL be permitted to provide the following documents to the psychologist undertaking the assessment of the parties:

(a)copies of all affidavit material filed by the parties;

(b)copies of the orders made on 21 December 2020 and these orders; and

(c)copy of the Family Report prepared by Mr F dated 5 May 2021.

6.The parents be permitted to communicate by email and text message in relation to matters concerning the children.

AND THE COURT NOTES THAT:

A.The matter is currently listed before Senior Registrar Hoult and that upon being transferred to the Family Court of Australia the return date on 30 July 2021 at 10:00am before the Senior Registrar be administratively listed for interim defended hearing in the Family Court of Australia.

B.The Mother has previously appealed the interim orders dated 21 December 2020. Her appeal was dismissed on 8 April 2021. A stay of paragraph 2 of those orders requiring the Mother to return to Victoria with the children was ordered until this day, 9 June 2021.

C.The Father and the ICL do not oppose the Mother’s application for an adjournment in circumstances where paragraph 2 of the 21 December 2020 orders requires her to return to Victoria with the children.

D.Neither the Father nor the ICL intend to pursue an application to enforce paragraph 2 of the 21 December 2020 orders so long as the Mother complies with that paragraph 2 of the 21 December 2020 orders on or before 30 July 2021.

Pursuant to sections 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 the Fact Sheet attached hereto and these particulars are included in these orders.

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 Donalds & Donalds (No 4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REVISED REASONS FOR JUDGMENT (EX TEMPORE)

JUDGE CARTER

1. This matter was listed today for a final hearing in relation to parenting. The matter is not able to proceed. The Mother’s lawyers, appointed pursuant to a s102NA order recently ceased acting, and new lawyers have only just been appointed. They say they are not currently ready to commence a final hearing at this time. That adjournment is not opposed by the Father or by the Independent Children’s Lawyer.

2. The stay of the Order I made requiring the Mother to return to Melbourne has now lapsed, as has been discussed at length throughout the course of today’s proceedings.  The Mother has not made a formal application to extend that stay, although it is clear she wishes to do so. I can list the matter for an interim hearing before the Senior Registrar on 30 July, 2021.  The Mother can bring whatever application she wishes to have heard on that day, on proper notice to the other parties. The Mother is squarely on notice that there will be a warrant sought, presumably on that day by the Father, if she has not returned to Melbourne by then.

3. Also, as I have made clear, I am of the view that this matter is more appropriately dealt with in the Family Court, and I am going to transfer it there.  The reasons for that transfer are that the matter will take a protracted time at a final hearing. There are multiple witnesses the Mother wishes to call. It is likely to take well in excess of three days. Further, I anticipate the matter will also need some careful case management prior to a final hearing.  There are a number of issues that the Mother has raised, including for instance, questions of jurisdiction.  She also asserts that one of the children is special needs, and says there are significant risk issues. The children are very young, with the youngest child not yet having met the Father. Each time the matter has come before me it has even for interim hearing it has occupied substantial Court time. It is very difficult for me to appropriately manage matters like this in the context of the busy lists that I have to operate. Additionally, I cannot list the matter for a final hearing until the end of 2022. Accordingly, in my view, this matter can be more appropriately accommodated by the Family Court. 

4. There are some matters on which I understand there is agreement between the parties. I note that the parties do agree that they will communicate with each other by email and text message in relation to matters concerning the children.  That is an order that can be made by consent.  It also seems to me appropriate that there be that psychological assessment of both of the parties.  I note that the Mother has made allegations about the Father’s violence and anger management. She also raises concerns along the lines of the Father’s psychological functioning. I understand the Father denies those allegations, but in light of the Mother’s material, it is appropriate that he be psychologically assessed.  I am also satisfied in view of the material that has been filed that there is a benefit to the Court having an assessment of the Mother as well. I understand from the submissions of Counsel that the Orders regarding psychological assessments are to be made by Consent.

5. The Mother has today sought to make an oral application to be permitted to remain in the Suburb D area of New South Wales pending the final determination of these proceedings.  As I have already indicated on several occasions today, that matter was run before me before Christmas last year. I made orders requiring the Mother to return.  At that time I expressed a view that this was one of those rare matters in which it is appropriate the Court exercise its coercive powers and require the Mother to return.  She has not done so.  She did initially appeal that order.  That appeal was ultimately dismissed, on one of the basis being that the matter was able to be given a speedy hearing but unfortunately that has not been able to go ahead today. It is being adjourned on the Mother’s application.  I am not prepared to hear an oral application in those circumstances.  Particularly as I have already indicated the matter is more appropriately dealt with in the Family Court.  If the Mother wants to bring an application to that Court she can do so. Similarly, the Father and Independent Children’s Lawyer can bring whatever interim applications they deem appropriate in that Court. 

6. The Father and the Independent Children’s Lawyer seek interim Orders for Y to spend time with the Father. That is opposed by the Mother.  Through her Counsel today, the Mother tells the court that Y is heavily dependent on her, which he no doubt is at five months of age. She says he is breast feeding on demand and he is very attached to her.  She says that he will struggle emotionally to manage being separated from her even for the short period of ½ an hour as proposed by the Father and the Independent Children’s Lawyer.  The Mother does not put forward any proposals for face to face time at this stage.  Her counsel indicated that the Mother’s view was that time between Y and the Father could occur electronically. However, there were no specific proposals put to me about that as to days, or times that could accommodate Y’s schedule and needs.

7. I have already made orders previously for X to have some electronic communication with his Father every second day between 6 pm and 6.15 pm.  I understand the Mother says that there are issues with that. However, that is an order I have made and that is an order that remains in full force and effect.  In my view, Y should participate in that wherever practicable. 

8. I am also of the view that it is appropriate that there be some attempts for introduction for Y to meet his Father.  I note that this is a matter in which the Mother says that there are real risk issues of concern, as she outlines at length in her material.  As I have previously ordered in relation to X’s time, that is to be supervised for at least the first six face to face periods.  The orders that I made on 21 December were for those first six face to face periods to be professionally supervised. Time was then to move to unsupervised time but with the parties to have the benefit of a supervisor’s report upon the conclusion of the sixth supervised visit.  That would mean that if there were any issues identified in the Father’s parenting, that those matters could be brought to the attention of the parties and to the Court.  In my view there does not seem to be any reason to alter those orders that were made some time ago. 

9. It is unfortunate that no time has occurred.  The Father says he cannot afford to travel to New South Wales. Of course, there have been COVID restrictions as well.  But it does seem to me that both of the boys have the right to have a meaningful relationship with each of their parents.  That has to be subject to them being protected. Given the risk issues that the Mother has raised, in my view, the requirement that those first 6 visits be supervised and then a report be prepared adequately and appropriately addresses the need to make sure the children’s relationship with their Father is advanced but not in a manner that puts them at risk in any way. 

10. So for those reasons I will make the additional order that is sought by the Father and the Independent Children’s Lawyer in terms of paragraph 3 of their proposed Minute.  I will also add in that Y is, wherever practicable, to participate in the Zoom, FaceTime, or Skye calls with his brother and the Mother is to facilitate that.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carter.

Associate:

Dated:       15 July 2021