Fuller & Fuller
[2023] FedCFamC2F 429
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fuller & Fuller [2023] FedCFamC2F 429
File number: MLC 2582 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 17 April 2023 Catchwords: FAMILY LAW – interim parenting orders – listing for final hearing – whether to make an order for a family report – whether a family report would impose on the children – order for a dispute resolution conference – the first principle for conducting child-related proceedings. Legislation: Family Law Act 1975 (Cth) ss 60CC, 69ZN Division: Division 2 Family Law Number of paragraphs: 21 Date of hearing: 17 April 2023 Place: Melbourne (via Microsoft Teams) Counsel for the Applicant: Ms McCreadie Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Mr Fudim Solicitor for the Applicant: CE Family Law ORDERS
MLC 2582 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FULLER
Applicant
AND: MS FULLER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
17 APRIL 2023
THE COURT ORDERS THAT:
FULL FDR CONFERENCE ORDER ON A DATE TO BE FIXED
1.Pursuant to Section 13C(1)(b) of the Family Law Act 1975 (Cth), the parties and their legal representatives (if any) shall attend:
(a)Part 1 of the confidential Court-based Family Dispute Resolution (FDR) Conference with a Registrar (as Family Dispute Resolution Practitioner) on a date to be fixed, with each party to attend separately at times to be advised; and
(b)Part 2 of the confidential Court-based FDR Conference on a date and at a time to be fixed but not later than seven (7) days after the date referred to in order 1(a).
2.The matter shall be referred to the Executive Director – National Registrar Operations and Practice for allocation and listing of the FDR Conference dates.
Part 1 of the FDR Conference
3.Part 1 of the confidential FDR Conference shall proceed by telephone and each party must, within two (2) days of receiving notification of the dates of each part of the FDR Conference, notify the Court by email of their best contact telephone number (and include details of the file name and Court file number).
4.Not later than 4.00 pm seven (7) days prior to Part 1 of the FDR Conference, each party must:
(a)ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 have been exchanged;
(b)ensure that any private expert report that is relevant to the proceedings has been filed;
(c)provide to the Court by email and to the other party a single collated bundle of documents comprising:
(i)a Confidential Outline of Case (Dispute Resolution);
(ii)a detailed minute of Orders Sought;
(iii)details of any previous or current family violence orders; and
(iv)a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted).
FDR Conference
5.The parties shall otherwise comply with any other necessary order, direction or request made by the Registrar to facilitate the FDR Conference.
6.The Registrar may vacate the FDR Conference in the event:
(a)of non-attendance by either party at Part 1 of the Conference; or
(b)that pursuant to Regulation 29 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008, the Registrar is no longer satisfied that the conference is appropriate.
Trial directions
7.The matter may be listed for a compliance mention 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.
8.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.
9.The Applicant file and serve any Amended Application and a trial affidavit upon which he seeks to rely by no later than 28 days prior to the Final Hearing.
10.The Respondent file and serve any Amended Response and a trial affidavit upon which she seeks to rely by no later than 14 days prior to the Final Hearing and the obligation to file same applies whether or not the Applicant has filed trial material in accordance with the previous order.
11.Each of the parties be at liberty to file a short affidavit in reply by no later than 7 days prior to Final Hearing.
12.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.
13.Each party file and serve a case outline no later than 7 days prior to trial and provide a copy in Word format to the associate.
AND THE COURT NOTES THAT:
A.The matter remains listed for Final Hearing on 21 September 2023.
B.The dates and times fixed for all parts of the FDR Conference will be emailed to the parties and their legal practitioners at the email address noted on the Court file.
C.Documents required to be provided to the Court pursuant to these orders must be emailed to the Court as set out in the email confirming the FDR Conference dates and times.
D.Not later than 4.00pm seven (7) days before the FDR Conference date, the lawyer for each party must give the party for whom they act a written notice of:
(a)the party's actual costs, both paid and owing, up to and including the Family Dispute Resolution Conference; and
(b)the estimated future costs of the party up to and including each future court event, including trial; and
(c)any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of the expenses.
E.For the purposes of the Family Dispute Resolution Conference, the parties are referred to s 131 of the Evidence Act 1995 (Cth) and ss 10J and 10H of the Family Law Act 1975 (Cth) and to the Court’s Family Dispute Resolution Fact Sheet.
F.The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the FDR Conference only. It is not to be filed or relied upon after the conclusion of the conference.
G.Part 1 of the FDR Conference is the first part of the Conference and is confidential. The other party will not be in attendance.
H.The FDR Conference is an opportunity for the parties to make a genuine effort to resolve their parenting dispute in a confidential, child focussed setting. The parties are to be resolution focussed and respectful during negotiations, and to be mindful of the financial and emotional costs associated with prolonged litigation.
I.The structure and duration of the FDR Conference will be at the discretion of the Registrar and will vary depending on the nature of the issues for consideration. Unless otherwise advised:
(a)parties and their legal representatives in short (four hour) conferences are expected to be available until at least 1.00pm and at the specific times requested by the Registrar; and
(b)parties and their legal representatives in full day conferences are expected to be available for the entirety of the day and at the specific times requested by the Registrar.
J.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.
K.Affected unrepresented parties may apply to the court and then 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.
L.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
M.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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).
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 by this Court under a pseudonym Fuller & Fuller has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
This matter came before me for mention on 17 April 2023. The parties were represented by solicitors and counsel. After hearing from the parties I fixed the matter for a ½ to 1 day final hearing on 21 September 2023, the next day available for a one day hearing in my list.
The question I must determine is whether I should order a family report to assist the Court and the parties determine the remaining issues concerning the welfare of the children X, Y and Z, now aged 12, 10 and 7 years. After submissions I reserved my decision until I had read further existing material on the file.
Background
The parents commenced cohabitation in 2006, married in 2009 and their 3 children were born between 2010 and 2015. The parties separated in September 2020 and the proceedings were issued by the Father on 10 March 2021.
At the start of the proceedings the orders the Father sought included the following:
Parenting Orders
1. That the Husband have sole parental responsibility for the children:
(a) [X] born [in] 2010;
(b) [Y] born [in] 2012; and
(c) [Z] born [in] 2015;
(collectively, the children).
2. That the Husband be excused from his obligation to further particularise the Final Parenting Orders sought by him pending the preparation of a Family Report.
Property Orders
3. That pursuant to Section 79 of the Family Law Act 1975 there be such Final Orders as to settlement of property between the parties as this Honourable Court deems appropriate.
The Mother filed a response on are about 30 March 2021 and the final orders she sought included the following:
1 That the parties retain joint parental responsibility for the children of the marriage
(a) [X] born [in] 2010
(b) [Y] born [in] 2012
(c) [Z] born [in] 2015 (“hereafter called the children”).
2. That the wife be excused from her obligation to further particularise the final parenting orders sought by her pending the preparation of a Family Report.
Property Orders
3. That pursuant to section 79 of the Family Law Act 1975 there be such final orders as to settlement of property between the parties as this Honourable Court deems appropriate.
Because a notice of risk had been filed the Department of Families Fairness and Housing (Child Protection) provided what is known as a section 67Z response on 19 March 2021 and another on 8 April 2021. The Child Protection response of 8 April 2021 concluded as follows:
[Z], [Y] and [X] are not considered to be at significant risk of harm in [the Father] or [the Mother’s] care to warrant intervention by Child Protection.
The family attended a child inclusive conference and were interviewed on Friday, 13 August 2021. The memorandum arising from that conference included the following observations:
18.The children were all interviewed individually. They presented as bright and articulate children who were willing to discuss their home life with each of their parents. All of the children spoke positively of their lives in the care of their mother and their father. None expressed any fear or concern in either household. All identified their mother as the person they would seek out for support, however were willing to seek such support from their father if they were in his care at their time of need.
…
21.Whilst the current 2:2:3:2:2:3 parenting plan is meeting the children’s needs, it involves frequent changes of address. As the children mature, they are likely to need stability and may find such frequent changes onerous. It is recommended that when developing future parenting plans, the parties build in flexibility to meet the children’s changing needs and consider how often the children have to move their belongings between households.
AGREEMENTS REACHED
22.Both parties indicated that the current parenting plan (2:2:3:2:2:3) is meeting the children’s needs and the children are much more settled since the plan was put into place.
FUTURE DIRECTIONS
In the absence of any information to the contrary, the following future directions are provided for consideration by the Court.
23.The children to continue to live in the current shared-care parenting arrangement as developed by the parties.
On 22 September 2021 interim property orders were made by consent and the proceedings were fixed for final hearing on 14 November 2022 with an estimated hearing time of 3 days.
On 4 November 2022 the parties joined in making an application to the Court for final property orders and interim parenting orders to be made by consent along with the final hearing listed 10 days hence being vacated and the matter being listed for mention down the track. Orders were made as the parties requested. The 2:2:3:2:2:3 parenting arrangement continued.
The matter came before me on 17 April 2023 as ordered on 4 November 2022. Counsel for each of the parties advised me and confirmed that the parents agreed that the children’s best interests were served by them continuing to live in an equal shared care arrangement. However the parties disagreed as to what the equal shared care arrangement should be. One parent seeks that the existing 2:2:3:2:2:3 arrangement continue and the other seeks a different arrangement and likely a week about arrangement.
One parent sought that I order a family report to assist the parties determine that dispute. The other parent resisted an order for a family report on the basis that it was unnecessary, expensive and intrusive. One parent submitted that the children were of an age when their wishes should be heard as to the proposed living arrangements and that the family report was the best way for this. It was also submitted that there were problems with the style of communication between the parents.
Anticipating that a family report might, or could be, ordered, the parties had made arrangements for an agreed private family report writer to be available on 17 July 2023.
Legal principles
Sub-sections 60CC (1) and (3)(a) of the Family Law Act 1975 (Cth) (‘the Act’) provide as follows:
Section 60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
…
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
…
Section 69ZN of the Act provides as follows:
69ZN Principles for conducting child‑related proceedings
Application of the principles
(1)The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b)in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
I take those provisions into account.
Conclusion
There are cases where to be concerned about children’s wishes appears, at first brush, to be child focused, but care must be taken to ensure that the burden and responsibility of parenting decisions about the children’s living arrangements are not placed upon the children. This is particularly so where, on the face of it, there are two good parents and where the practicalities and the relationships between the children and the parents are such that it is agreed that equal time is in the children’s best interests.
I am also assisted by section 69ZN(3), the first principle recited above. For children whose parents require the assistance of the Court to determine their living arrangements to be interviewed about their wishes about their parents is likely to be intrusive and confronting.
The precise living arrangements of an equal shared care a regime is fundamentally a parenting decision and the burden of responsibility for that decision should rest on the parents, and if they are unable to agree, on the Court.
In all those circumstances I am not satisfied that exposing the children to the intrusion of being interviewed for the purpose of a family report, notwithstanding the expertise of the proposed family report writer, is either necessary or justified.
Hence I will not order a family report when I make trial directions for the filing of the further material that each of the party tells me is necessary to resolve this dispute.
Counsel for the Mother contended that a family report may well assist the parents resolve the dispute themselves, and I accept that submission but I do not regard that as sufficient justification for the intrusion on the children of the family report process. However I am persuaded and attracted to the prospect of the parents having the opportunity with the assistance of appropriate experts to resolve this dispute themselves prior to final hearing with the stress, anxiety and intrusion into their lives that a final hearing entails. For those reasons I will order that the parties attend court based dispute resolution prior to final hearing.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 17 April 2023
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