Fort & Fort

Case [2025] FedCFamC1F 126

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Fort & Fort [2025] FedCFamC1F 126

File number(s): ADC 2560 of 2023
Judgment of: KARI J
Date of judgment: 19 February 2025
Catchwords: FAMILY LAW – CHILDREN – Ex Tempore Reasons – Where the father seeks an increase in his time spending with the children – Where the father seeks the removal of the interlock device fitted to his motor vehicle – Where there is a significant lack of trust between the parties – Where the mother asserts there is a risk of harm to the children due to the husband’s alcohol use and consumption – Where the father’s CDT testing and breath test results are inconsistent for the same period of time – Where these are interlocutory proceedings  - Where the evidence is unable to be tested – Where the court considers it appropriate to continue the protective measures already in place – Where the father’s time spending with the children will remain as previously ordered – Where the report writer who prepared the previous report will prepare the updated report   
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 64B, Pt VII
Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode (2006) FLC 93-286

Isles & Nelissen (2022) FLC 94-092

Division: Division 1 First Instance
Number of paragraphs: 70
Date of hearing: 19 February 2025
Place: Adelaide
Counsel for the Applicant: Mr Robertson-Clark SC, assisted by Ms Miller
Solicitor for the Applicant: Norman Waterhouse Lawyers
Counsel for the Respondent: Mr Williams SC
Solicitor for the Respondent: Precision Legal

ORDERS

ADC 2560 of 2023

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

MS FORT

Applicant
AND:

MR FORT

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

19 FEBRUARY 2025

THE COURT ORDERS BY CONSENT:

1.No later than 4.00 pm on 28 February 2025 the father do file and serve a Response to the Application in a Proceeding filed on 29 January 2025 together with an Affidavit in support of the same.

2.Order 7 of the Orders of 3 November 2023 do apply during the father's time with the children during the school holidays or any special occasion.

3.Order 17 of the Orders of 3 November 2023 be discharged.

4.The father's time with the children during the school holidays be supervised by Ms C or Ms D in the event that he travels further than 100 kms away from the Adelaide CBD.

5.The father do provide a breathalyser reading when the children are in his care during the school holidays as follows:

(a)On one (1) occasion during the time that the children are in the care of the father at the request of the mother by text message to be provided within thirty (30) minutes; and

(b)At 9.00 pm the night prior to the commencement of time. 

6.Pursuant to r 7.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) the parties do jointly instruct Dr G to…

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Fort & Fort [2025] FedCFamC1F 126
Case
[2025] FedCFamC1F 126
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CaseChat Overview and Summary

In the matter of Fort and Fort, the Federal Circuit and Family Court of Australia (Division 1) was presented with an interlocutory application concerning the parenting arrangements of two children. The father sought an increase in his time with the children and the removal of an interlock device installed on his vehicle. The mother opposed these requests, citing concerns about the father's alcohol consumption and its potential harm to the children. The court had to determine whether the existing protective measures, which included alcohol breath testing, should be maintained. Given the interlocutory nature of the proceedings and the lack of tested evidence, the court decided to uphold the existing protective measures. The father's time with the children would remain as previously ordered, and the same report writer who prepared the previous report would prepare an updated report.

The primary legal issue before the court was whether the existing protective measures concerning the father's alcohol use should be altered despite the father's requests. The court considered the mother's concerns about the father's alcohol consumption and the associated risk to the children, the inconsistency in the father's CDT testing and breath test results, and the lack of tested evidence in the interlocutory context. The court reasoned that given the significant lack of trust between the parties and the mother's assertions regarding the risk of harm, it was appropriate to continue the protective measures already in place. The father's requests for an increase in his time with the children and the removal of the interlock device were not granted, and the court directed that an updated psychiatric assessment of the father and a Family Assessment Report be prepared. The court also dismissed all extant interlocutory parenting applications save for the arrangements pertaining to the children's time with the father during the school holidays in 2025.

Orders

Orders of the court

ADC 2560 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS FORT

Applicant

AND:

MR FORT

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

19 FEBRUARY 2025

THE COURT ORDERS BY CONSENT:

1. No later than 4.00 pm on 28 February 2025 the father do file and serve a Response to the Application in a Proceeding filed on 29 January 2025 together with an Affidavit in support of the same.

2. Order 7 of the Orders of 3 November 2023 do apply during the father's time with the children during the school holidays or any special occasion.

3. Order 17 of the Orders of 3 November 2023 be discharged.

4. The father's time with the children during the school holidays be supervised by Ms C or Ms D in the event that he travels further than 100 kms away from the Adelaide CBD.

5. The father do provide a breathalyser reading when the children are in his care during the school holidays as follows:

(a) On one (1) occasion during the time that the children are in the care of the father at the request of the mother by text message to be provided within thirty (30) minutes; and

(b) At 9.00 pm the night prior to the commencement of time.

6. Pursuant to r 7.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) the parties do jointly instruct Dr G to undertake an updated psychiatric assessment of the father directed to allegations of alcohol abuse.

7. The parties do provide to Dr G for consideration as part of his updated psychiatric assessment:

(a) A copy of all documents filed in these proceedings;

(b) A copy of the report of Ms B dated 7 December 2024;

(c) A copy of the material produced by way of subpoena to:

(i) E Family Services, .

(d) All communications between the parties and F Company; and

(e) The transcript from the Court hearing before Judge Campbell on 22 December 2023.

8. The costs of the preparation of the updated psychiatric assessment be shared equally between the parties.

9. Pursuant to r 7.03 of the Rules the parties do jointly instruct a single expert to prepare a Family Assessment Report in relation to issues concerning the care, welfare and development of the children, which addresses the following matters:

(a) Any views expressed by the children and any matters (such as the children's maturity or level of understanding) that would affect the weight that the Court should place on those views;

(b) The matters set out in s 60CC of the Family Law Act 1975 (Cth);

(c) The impact upon the children and upon the children's relationship with the mother if the Court made orders as sought by the father;

(d) The impact upon the children and upon the children's relationship with the father if the Court made orders as sought by the mother; and

(e) Any other matters that the family report writer considers important to the welfare or best interests of the children.

10. The parties do provide to the single expert copies of the following documents for consideration as part of the preparation of her Family Assessment Report:

(a) A copy of all documents filed in these proceedings;

(b) A copy of Dr G's updated psychiatric assessment pursuant to Order 6 herein;

(c) A copy of the material produced by way of subpoena to:

(i) Dr J, Psychologist; and

(ii) E Family Services.

(d) The transcript from the Court hearing before Judge Campbell on 22 December 2023; and

(e) A copy of the Family Assessment Report prepared by Ms H dated 17 June 2022.

11. The costs of the preparation of the Family Assessment Report be shared equally between the parties.

12. Within seven (7) days of the date of this Order the father do sign the necessary authority and do instruct his solicitor to sign the proposed joint letter to K Company which is annexed and marked 'MSF-8' to the mother's Affidavit filed 29 January 2025.

13. The parties, by their legal representatives, be granted leave to inspect and copy the material produced pursuant to subpoena to E Family Services.

14. Until further order, the mother is not to be provided with copies of the material obtained pursuant to Order 13.

15. With respect to Christmas Eve and Christmas Day in 2025, the Children live with the parties as follows:

(a) For Christmas Day 2025 the Children live with the Father from 10.00 am on Christmas Eve until 12.30 pm on Christmas Day; and

(b) That the Children live with the Mother from 12.30 pm on Christmas Day until 3.00 pm on Boxing Day.

THE COURT FURTHER ORDERS:

16. That pursuant to Order 9 herein Ms H of L Psychologybe appointed as the single expert.

17. Leave is given to the parties to provide a copy of the material obtained pursuant to order 13 to each Dr G, Ms H and any other expert the parties agree ought be provided copies of such material.

18. All extant interlocutory parenting applications be dismissed SAVE AND EXCEPT arrangements pertaining to the children's block time spending with the father during the school holidays during 2025 as set out at paragraph 47 of the father's Affidavit filed 14 February 2025.

19. The interlocutory hearing in these proceedings on 27 March 2025 be vacated.

20. The extant interlocutory parenting proceedings (pursuant to Order 18 herein) together with the Application in a Proceeding filed by the mother regarding financial proceedings filed on 29 January 2025 be listed for hearing at 4.00 pm on 14 March 2025 (1 hour allowed).

21. Orders 4, 5, 6 and 8 made 16 December 2024 be discharged.

22. The mother file and serve an Affidavit directed to the extant interlocutory parenting proceedings with such Affidavit to particularise the orders that she seeks with the same to be filed and served no later than 4.00 pm on 28 February 2025.

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

I pause from the outset of these reasons to indicate a couple of things: (a)Firstly, that I intend to give short form reasons pursuant to s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), given these are interlocutory parenting proceedings;(b)Secondly, I have had regard to all of the material that has been filed in the proceedings. That is to say, while I have specifically had regard to the material the parties have taken me to, I have indeed read the entire file, given it is a relatively new file in my docket, and I familiarised myself with the same prior to the commencement of the hearing; and(c)Finally, I incorporate the exchanges with counsel during the course of this hearing today, and the transcript will reveal those matters, and they are incorporated into my reasons. BACKGROUND The background to these proceedings are such that they were commenced by the mother on 9 June 2023. So far as the parties are concerned, the mother was born in 1981, and the father was born in 1979. The relationship of the parties is such that they began living together in about 2010 in the United Kingdom, and they married in mid-2012, again in the United Kingdom. Some time in late 2015, the parties relocated to Australia. The parties separated on 7 May 2021 under the same roof, being the former matrimonial home at City R. In approximately March 2022, the father moved out of the former matrimonial home and into rental accommodation in Suburb M, which he set up for himself together with appropriate accommodations for the children pursuant to an agreement the parties had reached, which I will return to shortly. When these proceedings commenced, the mother's principal concern was in relation to the parenting arrangements for the children, and indeed, her Initiating Application was filed asking that the Court list the proceedings urgently. At that time, the mother's principal and only focus and relief sought from the Court was in relation to the parenting arrangements for the children. It was not until the father filed an amended response on 1 July 2024 that property proceedings were joined to the issues in dispute and the relief sought from the Court. So far as the parenting arrangements for the children are concerned, from the mother’s perspective, the arrangements are significantly bound up in her concerns as to the risk presented by the father as a result of his alcohol consumption, use and abuse. That topic, the risk that it presents, has been at the forefront of the mother's thinking in relation to these proceedings, and the orders that she has sought. Importantly, however, that topic and any risk posed by the father has been central to the orders that have been made throughout these proceedings. As I indicated earlier, the parties separated under the same roof on 7 May 2021. Some three days after the separation, the mother says the father emailed her to make some apologies about his alcohol consumption at that time. Ultimately, the parties, with the assistance of their legal representatives, engaged in mediation with a retired judicial officer, and that took place in early 2022. At that mediation, the parties were able to reach a detailed heads of agreement in relation to the parenting arrangements for the children. Those parenting arrangements included arrangements for the father's time spending with the children, but in addition, protective measures that the parties agreed were appropriate to ensure the safety of the children. Those protective measures were directed to the very topic that has formed the basis of the mother's significant concerns, namely, the father's alcohol consumption, use and abuse, and the risk that that presents to the parties' children. The protective measures at that time that the parties agreed to included arrangements for alcohol breath testing, among other things.

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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