Ferrer and Ferrer

[2018] FCCA 3107

FEDERAL CIRCUIT COURT OF AUSTRALIA

FERRER & FERRER [2018] FCCA 3107

Catchwords:
FAMILY LAW – Parenting application – parties unable to agree spend time arrangements for child to be with father – counselling reports indicate positive nature of child’s relationship with father – interim orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 68P

Applicant: MR FERRER

Respondent: MR FERRER

File Number: MLC 10587 of 2018

Judgment of: Judge A Kelly

Hearing date: 19 October 2018

Date of Last Submission: 19 October 2018

Delivered at: Melbourne

Delivered on: 19 October 2018

REPRESENTATION

Counsel for the Applicant: Mr Trim

Solicitors for the Applicant: M and K Lawyers Group Pty Ltd

Counsel for the Respondent: Ms Bastick

Solicitors for the Respondent: Guthrie and Associates

ORDERS

1. The parties have equal shared parental responsibility for [X] born 2012.

2. [X] spend time with the Father as follows:

   (a)each Sunday commencing 21 October 2018 from 12pm until 4pm.

   (b)each Thursday commencing 25 October 2018 from 4pm until 6pm.

   (c)from 3pm on Christmas Day until 1pm on Boxing Day.

   (d)the Father be permitted to travel to Town A with [X] for an annual family holiday from 27 December 2018 to 5 January 2019.

   (e)as further or otherwise agreed in writing between the parties. 

3. [X]’s time with his Father be substantially supervised by the Father’s adult child, Ms S, and conditional upon Ms S’s first filing with the Court an Undertaking as to her responsibilities in this regard.

4. All changeovers occur at the McDonald’s restaurant in Town B, unless otherwise agreed in writing by the parties. 

5. The Father’s adult daughter, Ms A, be permitted to spend time with [X] during the Father’s time, noting that this Order is inconsistent with a current Intervention Order. 

6. The parties shall undertake supervised urine drug and / or alcohol screening (the testing) and that:

   (a)the testing occur at a pathology centre or other appropriate place as approved by the ICL;

   (b)the testing occur randomly (but not more frequently than 4 times between the date of these Orders and the next currently listed mention date of this matter) and within 24 hours of the lawyers of the ICL making a request for the testing to occur; and

   (c)the results of the testing on each occasion be forwarded as soon as possible to the lawyers for the ICL and the parties.

7. Pursuant to s.68L(2) of the Family Law Act 1975 (Cth) the child [X] born 2012 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they make such arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:

   (a)forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;

   (b)within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents;

   (c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published at

   (

   and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and

   (d)the Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than 5 business days before the Final Hearing. 

8. The parties (and, if represented, their legal representatives) attend a Conciliation Conference with a Registrar of the Federal Circuit Court of Australia at the Melbourne Registry on a date to be advised.

9. The parties’ solicitors (and if they are unrepresented, the parties themselves) send to the other, and the nominated organisation, at least 7 days before the conciliation conference, copies of:

   (a)an outline of case document in the form set out below in the trial directions;

   (b)a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;

   (c)a copy of the actual terms of orders required to give effect to their settlement proposal; and

   (d)written confirmation by each party or their solicitor that:

   (i)all relevant documents have been exchanged between the parties; and

   (ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.

10. There be interim orders, by consent, in terms of the Minute of Proposed Consent Orders signed by the parties and dated 19 October 2019 (Minute).

AND THE COURT NOTES THAT:

A.A question remains whether it would otherwise be appropriate for the respondent to undertake an anger management programme.

B.The issue of therapeutic counselling will be addressed at the next Mention Hearing.

C.The ICL will be asked to address the merit of psychiatric assessment of both parties and the availability of a Family Report at the next Mention Hearing.

D.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) 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.

IT IS NOTED that publication of this judgment under the pseudonym Ferrer & Ferrer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10587 of 2018

MR FERRER

Applicant

And

MR FERRER

Respondent

REASONS FOR JUDGMENT

(Revised from ex tempore reasons)

1. In this proceeding, the applicant father seeks, by way of interim relief, an order that will facilitate the resumption of his spending time with the child, [X], who is aged six and a half years.  The parties have each filed affidavits, notices of risk and other documents bearing upon the question which falls for interim decision.  Although the matter first arose in a duty list, I have considered that material.

2. Part VII of the Family Law Act 1975 (Cth) (the Act), concerns the subject children and addresses by Sub-div BA, the best interests of the child in the context of court proceedings. Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

3. Section 60CC concerns the subject of how a Court determines what is in a child’s best interests. Subsections 60CC(2)-(3), respectively, concern the primary and additional considerations which the Court should take into account when addressing a parenting application, whether it be on an interim or final basis. Where the Court is dealing with an interim application in a parenting matter, the Court must make its assessment of the evidence notwithstanding that there are disputed questions of fact which cannot be determined until trial.

4. It is a primary – and in my opinion, most significant – consideration that [X] is entitled to the benefit of a meaningful relationship with both of his parents. It is no less a significant consideration to assess the need to protect [X] from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, as those expressions are defined by the Act.

5. Subsection 60CC(3) identifies a wide range of additional considerations which ought be taken into account, including any other fact or circumstance that the Court may think relevant.  I say at the outset that I have had the particular benefit of carefully considered submissions by counsel for the parties.  Indeed, in my view, counsel did everything that could reasonably have been asked of them to assist the Court in identifying what issues were truly in dispute and where matters of agreement might be achieved.

6. Beyond consent on a fairly wide range of procedural or mechanical orders, the substantial issues in dispute reflect, on one view, an unyielding stance in relation to how [X]’s time might be resumed with his father.  When the matter was first listed before me in a duty list on 16 October 2018, a series of directions were made, including that the matter be set down for trial and listed for mention on 12 March 2019.  The parties have a range of property issues which also require consideration.

7. I am particularly informed in this matter by the evidence of two professional contact supervisors whose affidavits were filed – Ms J, sworn 15 October 2018; and Ms C, sworn 18 October 2018 respectively.  Each of those reports provide highly detailed records of the observations made by those persons. 

8. A constant theme in those reports is that the relations between the applicant father and his young son are affectionate and close.

9. The content of those reports was, on one view, quite moving.  In my view, it is correct, as Ms Bastick submitted, that there should be ongoing supervision.  I do not accept that professional supervision is warranted, having regard to the reports which I have read to this point.  I am satisfied that the applicant father’s eldest daughter, now aged 24 years, should discharge, until further order, the role of lay supervisor on the occasions that [X] and his father are to spend time together.

10. As concerns spend time, the parties’ competing submissions were, in effect, for the father’s part, that [X] should spend time with him each Sunday for five hours from 12.00pm until 5.00pm, and for two hours from 4.00pm until 6.00pm.  He also sought that he could speak with [X] on Wednesdays and Fridays for a period of up to 30 minutes between 5.30pm and 6.00pm and such other times as was agreed by the parties in writing.

11. For her part, the respondent mother agreed in the telephone contact and in the other times as may be agreed in writing, but contended that the gradual shift (as she said) should move from professionally supervised time, initially for a total amount of two hours each week on a Saturday or Sunday.  In my opinion, the mother’s proposal is overly modest. 

12. While I cannot with certainty assess what would be an exact or perfect amount of spend time, I consider the father’s proposal for two hours each Thursday to be reasonable.

13. In deference to the mother’s stated concerns, I will limit the father’s spend time on the weekend to four hours between midday and 4.00pm.  As concerns the mother’s desire that the spend-time should be on a Saturday or Sunday, I am content for the order to provide that this should occur but, in default of agreement in writing, such spend time will be on Sundays from 12.00pm until 4.00pm.

14. The question of overnight spend time is also in issue.  For the father’s part, he seeks that at least in Christmas 2018, [X] should spend time overnight with him from 3.00pm on Christmas Day until 1.00pm on Boxing Day.  The proposal which is put forward by the father preserves to [X] and his mother that she should spend Christmas Eve, Christmas morning and Christmas day until 3.00pm with the mother.  For her part, the mother adheres to the view that the father should spend only two hours with [X] on Christmas day.  I reject that proposal. 

15. In my opinion, it will be to the benefit of [X] that he has a real opportunity, now aged six and a half, to spend significant time at Christmas with his father and his extended family.  Implicit in that finding is acceptance of the mother’s alternate submission that any such time would be conditioned upon the father’s time being attended by the substantial supervision of his eldest daughter, Ms S.

16. The further issue arises is in relation to [X]’s opportunity to be able to spend some part of his Christmas holiday with his father and extended family.  The father’s proposal is that [X] might spend a total of nine nights with his father and family in order that they might travel to Town A.  Contextually, [X]’s summer school holiday will run from about 21 December 2018 until 31 January 2019, a period of about 35 days.  I accept the force of Mr Trim’s submission that the father’s overall proposal in terms of spend time is under-reaching as opposed to overreaching, and the same submission was made correctly, in my view, with respect to a period of nine out of 35 nights of the Christmas period. 

17. Again, implicit in the competing proposals was that apart from the period of holidays, according to the regime being put forward, and as I have determined it should be.  The significant concern that I have reflected upon relates to the applicant’s adult daughter, Ms A. The present position is that Ms A is the subject of a contested criminal charge arising from an alleged strangling incident involving the respondent and Ms A. 

18. As was made clear in the course of submissions, the true scope and extent of that incident is very much in dispute.  One of the issues I ventilated with counsel in the course of argument was whether, in effect, the price of [X] being able to have a summer holiday with his father was that Ms A might need to be absent from that holiday.  Doing the best I can on the disputed issues of fact, the extent of the exposure to family violence which was emphasised persuasively by Ms Bastick of counsel for the respondent was that [X] observed the dispute between the applicant’s adult daughter and the respondent and observed other disputes between the parties.  One of the orders which is agreed between the parties is an injunction in usual form against the parties denigrating one another in any way in the presence of the child. 

19. I have taken into account that [X] is entitled to the benefit of having a full relationship with his extended family. While I have reflected upon the parties’ competing proposals respecting Ms A’s conduct and whether she poses a relevant risk to [X], I am persuaded on an interim basis that it would be inappropriate to require that Ms A should not be able to spend time with [X], and in that context, the orders put forward by counsel for the applicant comprehend that an order be made pursuant to s 68P so as to provide that this order will operate notwithstanding that it may, in terms, be inconsistent with an existing family violence order.

20. In the course of submissions, further issues were raised respecting the necessity, if at all, for random screening for drug and/or alcohol abuse by the applicant.  As this issue was pressed on instructions, I am persuaded, as I indicated to counsel, that both parties should therefore undertake such random screening.  As I also indicated, if the immediate result of such screening is to make it possible for evidence to be adduced of a repeated series of clear screens, that may, hopefully, put paid to this issue. 

21. If, of course, the contrary position holds true, that will raise, perhaps, a raft of new issues that will warrant close scrutiny.  As I outlined in discussion with counsel, I was persuaded by the force of their respective submissions and the content of the evidence to this point that it will be necessary in [X]’s best interests that he be represented by an Independent Children’s Lawyer.  As I also said, in the course of exchange with counsel, I will be particularly interested to see what recommendations are made by that Independent Children’s Lawyer in due course.

22. I fully expect that when the matter returns for mention on 12 March 2019, submissions will be made by the Independent Children’s Lawyer respecting at least three matters.  First, the necessity for the parties to undertake therapeutic counselling.  Second, the desirability of any psychiatric assessment of one or both of the parties.  Thirdly, the desirability of a family report for trial.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly

Date:  31 October 2018