Fagin & Burrough

[2021] FCCA 1413

FEDERAL CIRCUIT COURT OF AUSTRALIA

Fagin & Burrough [2021] FCCA 1413

File number:	MLC 11521 of 2020
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	26 May 2021
Catchwords:	FAMILY LAW – Interim parenting – father’s spend time arrangements with the child – young child – frequency of time – dispute as to father’s treatment – assessment of risk – orders made.
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Goode & Goode [2006] FLC ¶93-286
Number of paragraphs:	14
Date of hearing:	26 May 2021
Place:	Melbourne
Counsel for the Applicant:	Ms P Villella
Solicitor for the Applicant:	Tonkin Legal Group
Solicitor for the Respondent:	Sebastian Rubera & Associates
Counsel for the Independent Children's Lawyer:	Victoria Legal Aid
Solicitor for the Independent Children's Lawyer:	Ms P Treyvaud

ORDERS

MLC 11521 of 2020

BETWEEN:

MR FAGIN

Applicant

AND:

MS BURROUGH

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	26 MAY 2021

THE COURT ORDERS THAT UNTIL FURTHER ORDER:

Parenting

1.The child of the relationship, X born in 2018 ("the child") live with the Mother, Ms Burrough (“the Mother”).

2.The child spend time with the Father, Mr Fagin (“the Father”) as follows:

(a)Commencing 5 June 2021 each alternate Saturday and Sunday from 9am until 3pm;

(b)Commencing 14 August 2021 each alternate Saturday from 9am until 10.00pm Sunday;

(c)Commencing 25 September 2021 each alternate Saturday from 9am until 5pm Sunday:

(d)Unless otherwise spending time with the Father, on the child's birthday from the conclusion of school/childcare (or 3:30pm) until 6:30pm if it falls on a school day, and from 10:00am to 2:00pm if it falls on a non-school day;

(e)Father's Day from 9am until 5pm, if not already spending time with the Father;

(f)Christmas Day 2021 from 3pm until 6.00pm Boxing Day;

(g)as otherwise agreed.

3.Time to be suspended on Mother's Day from 9am.

BY CONSENT:

4.The parents within 14 days complete the necessary forms with Family Contact Centre (Ms B’s service) or such other agency as agreed between the parties, to facilitate changeover with the cost to be shared equally between the parties, and pending the Centre becoming available, changeover occur at C Shopping Mall, inside the entrance adjacent to D Bakery.

5.The Parents to download a parenting application and communicate in relation to matters impacting on the care, welfare and development of the Child, save for in cases of medical emergency involving the Child or either of them, in which case, the parents can telephone each other by telephone or by mobile phone.

6.The Parents must notify each other within 24 hours of any change of address, email or telephone number, including mobile phone.

7.The Father be restrained be from consuming alcohol 24 hours prior to or during all time.

8.The Father continue to attend upon psychologist Mr E as directed.

9.The Father continue to attend upon his General Practitioner on a regular basis and follow all recommended treatment.

10.The Mother attend upon Mr F to address issues as raised in a Section 11F Report.

11.The Independent Children's Lawyer be at liberty to provide to Father's psychologist Mr E and the Mother's psychologist Dr F the following:

(a)the Section 11F Report of Mr G dated 28 April 2021.

(b)the assessment of Dr H dated 22 April 2021 (including paragraph 111);

(c)The Report of DFFH dated 24 March 2021.

12.The Mother and Father attend upon the POP Program and provide certificates of completion to each other and the Independent Children's Lawyer.

13.The Mother and Father must:

(a)inform the other parent as soon as practicable in the event that the Child is involved in any serious accident or suffers from any serious illness which requires medical attention;

(b)at the earliest possible opportunity, inform the other parent of any medical practitioner with whom the Child is scheduled to consult with or has consulted with, and authorise the other to make all reasonable enquiries of such medical practitioner in respect of matters concerning the Child's attendance, health, diagnosis, prognosis and treatment and other information that they are lawfully able to provide about the Child. This order authorises any treating medical practitioner or health practitioner to release the Child's medical and health information to the Mother and the Father.

14.The Mother and the Father authorise by this order, the childcare centre, pre-school, school or any educational or extracurricular facility attended by the Child to give each parent information about the Child's education or extracurricular progress and other related activities and supply them with copies of reports, notices, photographs, certificates and awards obtained by the Child (at the requesting parent's costs).

15.The Mother and the Father be at liberty to attend all school related events and extra-curricular activities that the child may be involved in from time to time and that parents are normally invited to attend, regardless of which parent the Child is in the care of.

16.That the Mother, the Father, their servants and/or agents be hereby restrained by injunction from:

(a)abusing, insulting, belittling, rebuking, or denigrating the other party or members of the other party's family;

(b)discussing these proceedings, contents of any documents used in these proceedings to, with or in the hearing of the Child and permitting any other person to do so;

(c)Saying unpleasant or unkind things about the other party in the hearing of the Child and will not permit any other person to do so;

(d)passing information or messages through the Child to the other parent.

Family Report

17.Pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child X born in 2018 attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report to be given to the Court by 20 December 2021AND THAT:

(a)The Family Report address the matters relevant to ss.60CC, 61DA and 65DAA of the Family Law Act 1975 and any other matters that the Family Consultant considers important to the welfare or best interests of the child.

(b)The parties comply with all reasonable directions of the Family Consultant.

(c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court.

18.Leave is granted to each of the parties and the Independent Children's Lawyer to provide a copy of the Family Report to a convener of any legal dispute resolution conference.

Property

19.That the parties forthwith do all acts and things necessary to engage valuers to prepare formal sworn valuations, at their joint expense, of the property situate and known as J Street, Town K, Victoria.

20.In the event that the parties cannot reach agreement as to a valuer within 7 days of the date of these Orders, the Father shall nominate 3 valuers and the Mother shall chose one of the nominated valuers from the list.

21.The parties shall provide documents which are subject to the duty of disclosure to the other party within 14 days of a written request for same.

BY THE COURT:

Trial

22.The proceedings be adjourned to 7 April 2022 at 10:00am for Final Hearing (with an estimated hearing time of 2 days) at the Federal Circuit Court of Australia at Melbourne.

23.The matter may be listed for a compliance mention by telephone approximately 2 weeks prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.

24.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

25.The Applicant file and serve any Amended Application and a trial affidavit and, if relevant, an updated Financial Statement, upon which he seeks to rely by no later than 56 days prior to the Final Hearing.

26.The Respondent file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which she seeks to rely by no later than 42 days prior to the Final Hearing.

27.The Independent Children's Lawyer file and serve any material on which they seek to rely by no later than 28 days prior to the Final Hearing.

28.Each of the parties be at liberty to file a short affidavit in reply by no later than 21 days prior to Final Hearing.

29.The parties be at liberty to rely upon any affidavit material previously filed in these proceedings and merely file an updating affidavit, provided that written notice is given to the other party at the same time as required for filing a trial affidavit provided above.

30.For in person final hearings, parties are directed to have multiple copies of the documents they seek to tender and have multiple copies of documents available to witnesses.

31.Each party file and serve a case outline by no later than 7 days prior to trial and provide a copy in Word format to: associate.judgeo'[email protected].

AND THE COURT NOTES THAT:

A.The parties intend to undergo a private mediation after the release of the Family Report and prior to filing trial material.

B.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.

C.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.

D.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.

E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are the settled ex tempore reasons for judgment of a matter heard in a busy duty list.  The Applicant Father Mr Fagin (‘the Father’) is aged 38 and the Respondent Mother Ms Burrough (‘the Mother’) is aged 34.  The third party to the proceedings is the Independent Children’s Lawyer.  The matter concerns parenting arrangements for X (‘the child’) aged 2.  

2. The competing positions of the parties were significantly narrowed by the time the substantive argument commenced: represented in a minute of orders and the marking up of those minutes to indicate disagreements.  I worked on the marked up ‘F1’ as it mostly represented the competing positions and ‘M1’ as the Mother’s 5, 5(a) and (b) orders sought were not included in ‘F1’.  The respective party’s positions were identified and discussed in the course of the hearing before me.

3. A section 11F child inclusive conference memorandum dated 29 April 2021 had been produced and a s67Z response dated 24 March 2021 had been provided.  Prior to the narrowing of issues I had read those documents.  I took into account that evidence. 

4. My decisions are these.  The agreed regime of the Father attending upon Mr E as directed, will be, and is a sufficient safeguard in the circumstances.  That is rather than the more directed, and condition precedent, therapy that Mr Rubera, solicitor for the Respondent, seeks (set out in 5 and 5 (a) and (b)), save that in regard to paragraph 12, where the reference is, the assessment of Dr H, dated 22 April 2021, I would like to put in brackets there “including paragraph 111”, because I want to bring Mr E's attention to that.  I am sure he read the whole lot, but I want to specifically bring his attention to that paragraph. 

5. Then in terms of the other contested issues, the first is the Wednesday time as sought by the Father and opposed by the Mother.  Because of the gap in time from the Monday morning until the following, what it would be Monday morning, it's then more than a week, it is a week and a half till the child gets to see her Father again and that troubles me. 

6. On the other hand, I want to get this wagon train on the road, running smoothly, and the practical reality is it has not been able to work without court orders so far.  On balance, I do not propose to order the Wednesday time.  That should not be taken that I do not think that that would not be appropriate in the long run, but at this establishment stage, and taking into account all of the evidence including the Mother's psychological state, I do not intend to impose that Wednesday and part of the reason is that, by hook or by crook, the child has managed to maintain a good relationship with her grandmother and her Father in the face of very limited time, and that just outweighs is enough to balance out my concern about the too long a period for a three-year-old.

7. Then coming to the time of the issue of paragraph 3 (b) and (f) (the issue of the Wednesday (b), and then Wednesday overnight to Thursday (f)).  The 3(f) issue decides itself if I am not putting in place the Wednesday.  That sort of decides the alternate Wednesday position coming in on 1 December, and I note the Wednesday is not supported by the Independent Children’s Lawyer and the experienced Independent Children’s Lawyer and counsel will have good reason for balancing all the things in those circumstances. 

8. So I will be deleting those as the Mother seeks, but it should not be thought that I am against time in the middle of the alternate weekends otherwise.  We then have in the long run, or even the medium term to the dispute about 3(e), that is the move to from one night to two nights, commencing on 27 November 2021 as sought by the Father or 1 January 2022 as sought by the Independent Children’s Lawyer.  The Mother seeks that the overnight time stay at the one night per fortnight.

9. In my view, given the nature of the relationship that is developing, it is appropriate to move it to two nights on an alternate weekend basis prior to final hearing.  I agree with the Independent Children’s Lawyer position.  I can understand why it should be commencing at three years of age.  On the other hand, three years of age and a bit does not hurt either.  The move to the one night overnight is a bit before three years.  The move to the two nights as the Independent Children’s Lawyer seeks is a bit after three years.  So that will be commencing 1 January 2022, which would mean the next Saturday after that I have not checked the dates. 

10. The remaining dispute is the Christmas Day.  I propose the time sought by the Father, that is 3pm to 6pm Boxing Day, is a sensible arrangement and I will make that order.

11. The issue of the substantial attendance that is sought, I note that Dr H’s report does not put a high degree of risk in fact, puts a low risk: and that is my perception of that report.  However, the Mother says she has got good reason for her own anxieties.  I cannot rule those out.  I want to get this show on the road, operating smoothly.  In my view, it is not practical to have a substantial attendance order operating overnight for people who are not in the same home.  The grandmother should be in substantial attendance until the regime, the new regime that commences on 25 September 2021 that is until the end of the regime of what will become 2(c).  So I will adopt the words at paragraph (6) of exhibit ICL1, but it will have the words “until the end of the paragraph” what was 3(c) will become 2(c) regime. 

12. I will make orders for final hearing and a section 62G family report.  My reasons for not including the Wednesday (and then the Wednesday overnight) largely centres around what I am concerned about.  That is the ability of the Mother to cope combined with the practical difficulty of even more substantial attendance by the grandmother in the middle of each week as well, and the circumstance that there is an established relationship.  To the credit of the child and to the credit of the Father's family, she has been able to maintain a relationship with her Father and her grandmother.  In terms of the move to overnight time, that is the controversial move to two nights overnight, it is, in my view, in the child’s interest to move to that time of two nights overnight, by that stage, that is 1 January 2022, (she then being a bit over three years, on an alternate weekend basis. 

13. I remain concerned about, and have some anxiety about, the gaps between the time being too long for the child.  But somehow she has managed to maintain a relationship with minimal time on a, now two-weekly basis.

14. So they are my reasons for that decision. I take into account all of the matters under Part 7 of the Family Law Act 1975 (Cth) and paragraphs 81 and 82 of Goode & Goode [2006] FLC ¶93-286 in terms of what I can and cannot decide on this interim hearing.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       25 June 2021