Grove & Hansford

[2021] FCCA 2148

FEDERAL CIRCUIT COURT OF AUSTRALIA

Grove & Hansford [2021] FCCA 2148

File number:	ADC 5815 of 2020
Judgment of:	JUDGE YOUNG
Date of judgment:	4 August 2021
Catchwords:	FAMILY LAW – parenting – concerning two children who are eleven and ten years old – where the children live with the mother – where the children are currently not spending time with the father – where the Family Consultant was concerned about the children’s psychological health – where the Family Consultant was concerned the mother was alienating the children from the father – Court satisfied the children should begin spending time with the father immediately.
Legislation:	Family Law Act 1975 (Cth) s 69ZW
Number of paragraphs:	20
Date of hearing:	4 August 2021
Place:	Darwin
The Applicant:	Appearing on his own behalf
The Respondent:	Appearing on her own behalf

ORDERS

ADC 5815 of 2020

BETWEEN:

MR GROVE

Applicant

AND:

MS HANSFORD

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	4 AUGUST 2021

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That the children X born in 2009 and Y born in 2011 (“the children”) spend time with the father as follows:

(a)for a four (4) week period commencing on 6 August 2021:

(i)every Friday from after school (or 4:00pm if it is not a school day or the children did not attend school) until 8:00pm;

(ii)every Saturday from 10:00am to 8:00pm;

(b)at the conclusion of the four (4) week period:

(i)every weekend from Friday after school (or 4:00pm if it is not a school day or the children did not attend school) until 8:00pm Saturday; and

(c)on Father’s Day, 5 September 2021, from 10:00am to 5:00pm.

2.That the father is to ensure the children are provided with dinner when the children are in his care until 8:00pm.

3.That changeover is to occur at McDonalds, Suburb F, SA if it is not a school day or the children did not attend school.

4.That the parties are to communicate only using a communication book which is to travel with the children and such communication is to be restricted to matters concerning the welfare of the children.

5.That neither party is to directly communicate with the other party using email, text message or telephone except in the case of an emergency relating to the children.

6.That pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed to represent the interests of the child X born in 2009 and Y born in 2011 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

7.That immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

8.That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship X born in 2009 and Y born in 2011 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services 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, such report to be released by 31 January 2022.

9.That the family report is to deal with the following matters:

(a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

(b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

10.That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

11.That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

12.That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

13.That unless a party objects, in writing, within 14 days of the date of releasing 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/ren 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.

NOTING:

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

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 10 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

14.That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

15.That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

16.That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served prior to the interviews with the Family Consultant as follows:

(a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

(b)annexing such material as is considered relevant, with

(c)the affidavit to be paginated, indexed and exhibits tagged.

17.Pursuant to section 69ZW of the Family Law Act 1975 the Department for Child Protection provide the Court with the following documents or information:

(a)copies of any notifications regarding abuse allegations arising or relating to the X born in 2009 and Y born in 2011;

(b)any assessments or investigations into such abuse allegations;

(c)the outcome or findings of any such assessments and investigations; and

(d)copies of any reports received by the Department for Child Protection in the course of investigating any such notifications.

18.That neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Department for Child Protection without the Courts leave.

19.That this matter be adjourned to 23 November 2021 at 9:30am for mention.

20.That this matter otherwise be adjourned to the trial call-over list on 18 March 2022 at 9:30am.

21.The parties no less than seven (7) days prior to the call-over date provide to the Court:

(a)a brief Summary of Argument including Minute of Orders sought; and

(b)a Trial plan indicating estimated length of trial sought and witnesses relied upon at trial.

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

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is a parenting matter about two children: X who is 11 years of age and Y who is 10 years of age. 

2. Neither party in this proceeding was represented today at the hearing.  The mother’s lawyers filed a notice of ceasing to act last week. I asked the mother why she failed to comply with the order dated 9 March 2021 which required her to file and serve a response, affidavit in support, and a notice of risk within 28 days of the date of those orders. The mother said that she had been dealing with a paralegal at the firm of solicitors who represented her and that paralegal did not do her job properly. She said as a result the paralegal was dismissed and that was the explanation for the failure to provide documents.  I note the responding documents have not been filed by the mother prior to this interim hearing today.

3. I caused Ms G of Adelaide Family Lawyers, the firm that previously represented the mother, to be telephoned. She gave evidence and was cross-examined by the mother.  Ms G said that she had ceased acting because the mother did not communicate with her adequately to provide instructions.  I assume that would also be a breach of the grant of legal aid that Ms G received to represent the mother. Ms G said that there had been difficulties contacting Ms Hansford but eventually she managed to make an appointment with her on 6 or 7 July 2021 and the purpose of that appointment was to take instructions to prepare, file and serve answering documents.  Ms G said that that appointment was cancelled at short notice by the mother.

4. The mother cross-examined Ms G with a view to establishing that her version of events was correct. However, as the evidence was given it became clear there was no real conflict.  The mother conceded that she did not make another appointment with Ms G to prepare documents because she said she had lost confidence in the firm. She has since taken no steps, beyond speaking to someone from the Women’s Legal Service in July 2021, to either have her grant of Legal Aid transferred to another firm or obtain other lawyers.

5. In those circumstances I am satisfied that the mother’s failure to file documents is, effectively, a choice made by her and may indicate an unwillingness to participate in the proceeding. I do not know. She has not filed evidence in relation to today’s hearing. I am satisfied, however, that she has had adequate opportunities to do so and has not taken up that opportunity. 

6. I considered adjourning the matter in order to permit the mother to seek legal representation, but in all the circumstances I consider that would be inappropriate to do so. I decided that I am going to deal with the matter today. 

7. As I say, the children, X and Y, are 11 and 10 years old respectively.  They live with their mother.  Several months ago the children ceased spending time with their father and time has not resumed since. 

8. I have had the benefit of reading a Child Inclusive Conference Memorandum which I do not propose to go through in great detail. However, there have been allegations and counter-allegations made by the parties of family violence.  It is said that the father, at some point, pleaded guilty to an aggravated assault on the mother. I do not have details of that before me.  Both parties allege that the other has engaged in coercive and controlling behaviour through the use of court proceedings.  There are issues about poor school attendance and performance of the children and other allegations made by the mother that the father does not feed the children when they are in his care.

9. The children, on interview with the Family Consultant, did not support the mother’s criticisms of the father. In the case of X, she said that she was treated very well by the father, however, she wanted no change which was a reference to the previous arrangements of daytime only with the father.  Y said that at one point she had been forced to swim by the father but soon afterwards also said that she had great fun at the beach with the father.  The Family Consultant pointed out that those comments did not appear consistent.

10. The Family Consultant had concerns about the psychological health of the children. The Family Consultant was extremely concerned about the alienating behaviour of the mother which did not permit the children to freely express any desire to have a relationship with their father in front of the mother.  The Family Consultant was of the view that the children’s time with the father should commence immediately, initially during the day for a period of four weeks, and then overnight for a period of one night a week. The mother opposed that.  However, I accept the analysis of the Family Consultant, at least on a provisional basis. This is, of course, bearing in mind that this is an interim hearing and the Family Consultants comments have not been subjected to cross-examination. The Family Consultant, through her factual observations of the children, their presentation respectively with the father and the mother, and their responses at different times indicate, concluded that there were serious causes for concern about whether these children were alienated from their father or relying on their mother in a way that was not in their interests in the long term.

11. I propose to make orders as follows.  There will be an order, starting this Friday that the children will spend from after school to 8:00pm on Friday night with the father each week and the father is to ensure that the children are provided with dinner before they return to the mother’s care.  If it is not a school day or the children do not attend school then the children’s time with the father will commence at 4:00pm on Friday.

12. The children will also spend from 1:00pm to 8:00pm on Saturday with the father each week and the father is again to provide dinner to the children. Changeover is to occur at McDonalds, Suburb F. 

13. After four weekends the children are to commence spending one overnight with the father each weekend. The father will collect the children from school on the Friday. If it is not a school day or the children are not at school the time with the father will commence at 4:00 pm. The father is to return the children to the mother’s care after dinner on Saturday at 8:00pm. That is to occur on each weekend until further order.

14. In addition, on Father’s Day, which is 5 September 2021, the children are to spend from 10:00 am to 5:00 pm with the father.  Changeover is to occur at McDonalds. 

15. The parties are to use a communication book which is to travel with the children. Any comments in the communication book are to be restricted to matters only concerning the welfare of the children and the parties are not to engage in any offensive or denigrating language in the book.

16. Neither party is to communicate with the other by email, text message, or telephone except in the case of an emergency in relation to the children. 

17. I propose to make an order for the appointment of an independent children’s lawyer. 

18. I also propose to make an order for the preparation of the family report which will be released by 31 January 2022. 

19. I am going to mention the matter when I am in Adelaide on 23 November 2021 at 9.30 am.

20. I will also make an order pursuant to section 69ZW of the Family Law Act 1975 (Cth) in relation to the children directed to the Department for Child Protection.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       14 September 2021