Doughty & Fairhall

Case [2024] FedCFamC1F 383

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Doughty & Fairhall [2024] FedCFamC1F 383

File number(s): ADC 1712 of 2016
Judgment of: KARI J
Date of judgment: 29 May 2024
Catchwords: FAMILY LAW – CHILDREN – Ex Tempore Reasons – Interim Parenting Arrangements – Where the mother seeks to dispense with the requirement for supervision of her time spending with the child – Where the father seeks that the interim time spending arrangements remain pending trial – Where the father’s position is supported by the Independent Children’s Lawyer  - Where the father is concerned about the emotional and psychological risk to the child in the event the requirement for supervision is lifted – Whether the passage of time has ameliorated the risks previously identified by the court – Where the court considers orders for additional supervised time spending between the mother and the child.  
Cases cited: Fairhall & Doughty [2023] FedCFamC2F 113
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC
Division: Division 1 First Instance
Number of paragraphs: 36
Date of hearing: 29 May 2024
Place: Adelaide
Counsel for the Applicant: Ms Boyle
Solicitor for the Applicant: Adelaide Family Law Pty Ltd
Counsel for the Respondent: Mr Roberts
Solicitor for the Respondent: Pittaway Lawyers and Conveyancers
Solicitor for the Independent Children's Lawyer: Silkwoods

ORDERS

ADC 1712 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS DOUGHTY

Applicant
AND:

MR FAIRHALL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

KARI J

DATE OF ORDER:

29 MAY 2024

UPON NOTING that in the event that the Orders for the filing of documents for the First Day Hearing provided for in these Orders have not been complied with, the Court shall:

A.Give consideration to vacating the hearing; and

B.Give consideration to making an Order that the defaulting party pay the costs of the party not in default.

C.The trial is likely to be listed before the Honourable Justice Berman to commence on 14 October 2024.

THE COURT ORDERS:

1.That the proceedings are adjourned to 19 June 2024 at 9.15am for a First Day Hearing before the Honourable Justice Berman with such hearing to be conducted on a face-to-face basis and properly instructed counsel are to attend.

2.That the parties personally attend the First Day Hearing AND in the event they are not available, the file principal attend.

3.That in the event that any party is legally aided they are to make their application for a grant of legal aid for TRIAL PURPOSES no later than six weeks prior to the First Day Hearing and be in a position to advise the court as to funding arrangements at the First Day Hearing.

4.That no less than seven (7) days prior to the First Day Hearing the parties shall file and serve:

(a)A brief summary of the issues in dispute, together with a Minute of the specific Orders sought;

(b)A Trial plan identifying the witnesses to be relied upon at Trial, an estimated length of Trial and any Subpoena which…

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Doughty & Fairhall [2024] FedCFamC1F 383
Case
[2024] FedCFamC1F 383
Decision Date

CaseChat Overview and Summary

In the matter of Doughty and Fairhall, the Federal Circuit and Family Court of Australia was called upon to determine interim parenting arrangements regarding the custody of a child named X. The mother sought to modify the existing arrangements, requesting unsupervised time with X, while the father, supported by the Independent Children's Lawyer, opposed this change, citing concerns about the emotional and psychological risks to X. The primary issue before the court was whether the previously identified risks to X warranted continued supervised visitation by the mother.

The court reviewed the history of the case, including the ex tempore reasons provided by Judge Jenkins in January 2023, which detailed the mother's psychological issues and allegations against the father, some of which were deemed to lack veracity. The Child Impact Report, prepared by Ms H, highlighted significant concerns about the mother's psychological functioning and her potential negative influence on X. The court found these concerns to be critical, as they pertained directly to X's emotional and psychological well-being. Given these factors, the court was tasked with assessing whether the passage of time had reduced the previously identified risks and whether additional supervised visitation should be ordered.

The court concluded that while the father was open to additional visitation on a supervised basis, it was imperative to maintain these safeguards to protect X. The court ordered that X would continue to spend time with the mother under supervision by the paternal grandmother, or other designated supervisors if she was unavailable. Additionally, the court ordered that the mother and X would communicate with the father via FaceTime on Thursdays, initiated by the father, and in his sole presence. The court also mandated that the parties attend a family consultant session to prepare a report on the child's welfare, which would be shared with the court and the Independent Children's Lawyer. The final hearing was scheduled for October 2024, with a First Day Hearing set for June 2024.

Orders

Orders of the court

ADC 1712 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DOUGHTY

Applicant

AND:

MR FAIRHALL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

KARI J

DATE OF ORDER:

29 MAY 2024

UPON NOTING that in the event that the Orders for the filing of documents for the First Day Hearing provided for in these Orders have not been complied with, the Court shall:

A. Give consideration to vacating the hearing; and

B. Give consideration to making an Order that the defaulting party pay the costs of the party not in default.

C. The trial is likely to be listed before the Honourable Justice Berman to commence on 14 October 2024.

THE COURT ORDERS:

1. That the proceedings are adjourned to 19 June 2024 at 9.15am for a First Day Hearing before the Honourable Justice Berman with such hearing to be conducted on a face-to-face basis and properly instructed counsel are to attend.

2. That the parties personally attend the First Day Hearing AND in the event they are not available, the file principal attend.

3. That in the event that any party is legally aided they are to make their application for a grant of legal aid for TRIAL PURPOSES no later than six weeks prior to the First Day Hearing and be in a position to advise the court as to funding arrangements at the First Day Hearing.

4. That no less than seven (7) days prior to the First Day Hearing the parties shall file and serve:

(a) A brief summary of the issues in dispute, together with a Minute of the specific Orders sought;

(b) A Trial plan identifying the witnesses to be relied upon at Trial, an estimated length of Trial and any Subpoena which will be issued.

5. That pursuant to s 62G(2) of the Family Law Act 1975, the parties and the child X (born 2015) attend upon a family consultant nominated by the Dispute Resolution Co‑ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, with a request that such report be released by late September 2024.

6. The Family Report deal with the following matters:

(a) Any views expressed by the said child;

(b) The matters set out in ss.60CC, 61D(3), and 65DAA of the Family Law Act 1975; and

(c) The impact upon the child and upon the relationship with the mother if the Court made orders as sought by the Father;

(d) The impact upon the child and upon the relationship with the father if the Court made orders as sought by the Mother;

(e) Any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.

7. The parties shall do all things necessary to facilitate the completion of the Family Report, including making themselves available for appointments and executing any authorities for the release of information to the report writer.

8. The report writer shall be at liberty to liaise with any person in relation to the welfare of the child.

9. Upon the Report being provided to the Court, the Court shall provide a copy to each party (or if represented the party’s lawyer) and to the Independent Children’s Lawyer in the proceedings.

10. Unless a party objects, in writing, within fourteen (14) days of the release of the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

(a) A Children’s Court;

(b) A child protection authority;

(c) A State or Territory legal aid authority; and

(d) A convener of any legal dispute resolution conference.

11. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

THE COURT NOTES THAT:

A. At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B. Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one (1) year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

12. That until further order the child X (born 2015) shall spend time with the mother as follows:

(a) Each alternate Sunday from 9.00am until 1.00pm with such time to be supervised by the paternal grandmother but if she is not available then the paternal grandfather or paternal aunt commencing 2 June 2024

(b) Such further or other periods of time spending as agreed between the parties in writing from time to time.

THE COURT FURTHER ORDERS BY CONSENT:

13. As to the location of time spending, the Mother shall message the Father by no later than forty-eight (48) hours prior to the commencement of time spending as to the nominated location in City B for time spending to occur.

14. For the purposes of 13 herein, the Mother be at liberty to attend with either one of the maternal grandmother, maternal grandfather or the maternal uncle on each occasion.

15. Unless otherwise advised, handovers at the commencement of time spending occur between the mother and the supervisor at the Service Station at C Street in City B.

16. That the Mother will be at liberty to disclose copies of the following documents to her counsellor, Ms D, her social worker, Ms E and/or any of her treating professionals:

(a) The orders and the Reasons for Judgment of Judge Jenkins dated 27 January 2023;

(b) The Affidavit of the Independent Children's Lawyer filed 28 May 2023 annexing Dr F’s report dated 25 May 2023;

(c) Mr G’s report dated 2 May 2024;

(d) Child Impact Report prepared by Ms H dated 17 December 2022; and

(e) A copy of these orders.

THE COURT FURTHER ORDERS:

17. The Mother and X shall communicate via FaceTime on each Thursday from between 6.45 pm to 7.15 pm with the Father to initiate the call and NOTING that the Father will ensure that the said call is in the absence of any other person.

18. That the Amended Application in a Proceeding filed by the Mother on 23 January 2024 and the Response thereto filed 30 January 2024 be dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

During the course of the hearing the father indicated a willingness to facilitate additional time spending between the mother and the child, on a Wednesday as sought by her, if that was to be entertained by the court. While this is not his primary position, the father’s position is that if the court were to order that time, again any such additional time should occur on a supervised basis.BACKGROUND I do not propose to set out the background of the litigation in detail. I say that because I am conscious that when Judge Jenkins made orders for the change of primary care on 27 January 2023, she delivered ex tempore reasons which, to some degree, set out the history of the matter (Fairhall & Doughty (No 2) [2023] FedCFamC2F 113). I have had regard to those reasons. Those reasons are significant for present purposes, because they highlight for the parties, but importantly for the court, the concerns that were brought to bear when it was determined appropriate, and in X's best interests, to change her primary care arrangements. Principal amongst the concerns were concerns, that had been outlined in the Child Impact Report prepared by Ms H on 17 December 2021 (“the Child Impact Report”), as to the emotional and psychological harm, and risk of the same, posed by the mother towards X. I have had regard to the Child Impact Report. I do not propose to detail all of the information contained in the report in these reasons, other than to say that it is apparent from the report, that Ms H had significant concerns about the mother's psychological functioning and significant concerns about the veracity of allegations made by the mother, in relation to the father, including but not limited to allegations of both sexual and physical abuse by the father directed towards her, including but not limited to an allegation that the child, X, was conceived as a result of a rape. In addition, Ms H was significantly concerned about the mother's ability to support a relationship between X and the father, despite it being apparent that X, through the assessment process, enjoyed her time with the father, had a good relationship with the father and, indeed, wanted time spending to occur with the father. Significantly, Ms H commented throughout her report, as to the mother's difficult presentation during that assessment process and Ms H described the same at paragraph 13 of her report, as “covertly aggressive, was openly dismissive of the writer’s level of experience, and displayed obvious attempts to control the assessment process.” In addition, Ms H expressed concerns about comments made by X during the assessment process, which reflected poorly upon the mother, and her influence upon X, including but not limited to X not being allowed to hug the father, and X describing the father, and his family, as not being her family. It appears to me, that Ms H's concerns go to the heart of X's emotional and psychological functioning and well-being. Those are risk factors which need to be properly assessed at a final hearing. As I have indicated to the parties earlier, that final hearing is now not all that far away.

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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