Hall & Neuman
[2023] FedCFamC2F 1088
•17 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hall & Neuman [2023] FedCFamC2F 1088
File number(s): MLC 2341 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 17 August 2023 Catchwords: FAMILY LAW – interim parenting orders – how often the child should communicate with a parent overseas – when the child should return to Australia from overseas after a holiday – whether counselling for a child should be reportable or non-reportable – unusual circumstances require listing the matter for final hearing Legislation: Family Law Act 1975 (Cth) s 69ZL Division: Division 2 Family Law Number of paragraphs: 13 Date of hearing: 17 August 2023 Place: Melbourne Counsel for the Applicant: Mr C. Dunlop Solicitor for the Applicant: Nicholes Family Lawyers Counsel for the Respondent: Ms E. Swart Solicitor for the Respondent: Leanne Cain & Associates ORDERS
MLC 2341 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HALL
Applicant
AND: MR NEUMAN
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
17 AUGUST 2023
THE COURTS ORDERS BY CONSENT THAT, UNTIL FURTHER ORDER:
1.The Mother and Father have equal shared parental responsibility for the child X born in 2014 (“X”).
2.Pending the determination of the parties’ respective applications for final parenting Orders, or unless otherwise ordered prior, X live with the Father and spend time with the Mother as follows:
(a)In Australia:
(i)From 9am 22 September 2023 until 3pm 15 October 2023;
(ii)During school terms in 2023, if the Mother travels to Australia provided that she gives the Father 14 days’ notice, as agreed but failing agreement for up to 14 consecutive nights commencing at 4pm on the date that the Mother arrives in Australia and concluding at 4pm 15 days later;
AND THE COURTS ORDERS THAT, UNTIL FURTHER ORDER:
(iii)During school term by video each school day for a period of up to 30 minutes and for a period of up to 60 minutes each Sunday and each alternate Saturday.
THE COURTS ORDERS BY CONSENT THAT, UNTIL FURTHER ORDER:
(iv)At all other times as agreed between the parties in writing.
AND THE COURTS ORDERS THAT, UNTIL FURTHER ORDER:
(b)In Country B:
(i)From December 2023 (departure in December 2023) until January 2024;
(ii)X shall travel with Ms C from Melbourne to Country D and changeover between the Father and Ms C shall occur at 11am in December 2023 at E Street, Suburb F, Victoria; and
(iii)Changeover in January 2023 shall occur at G Street, Suburb H.
(iv)At all other times as agreed between the parties in writing.
3.For the purposes of Order 2 hereof:
(a)The Applicant will arrange for and book X’s economy airline travel to Country B departing December 2023 and airline travel scheduled to arrive in Australia in January 2024.
(b)Within 7 days of the Applicant providing to the Respondent written confirmation of the payment of airline travel pursuant to Order 3(a) hereof, the Respondent shall reimburse the Applicant the return airline travel costs from Australia to Country B associated with X’s travel only.
(c)The Respondent provide the child’s Australian and Country D passports to Ms C in December 2023 and the Applicant shall provide them to the Respondent at changeover in January 2024.
THE COURTS ORDERS BY CONSENT THAT, UNTIL FURTHER ORDER:
(d)The Applicant is at liberty to travel within Country B and Country J (to Hague Convention Countries only) with the child during this period of time.
Specific Issues
4.The parties forthwith do all acts and things and sign all documents required to enable the renewal of X’s Country D Passport and any associated travel documents.
5.The father and the mother each notify the other immediately by text message of any accident, serious injury or illness suffered by X whilst in their care.
6.The father and the mother each provide to the other their current:
(a)Residential address;
(b)Mobile telephone number; and
(c)Private email address.
7.The father and the mother respectively be and are hereby restrained from:
(a)Denigrating the other parent and/or their family members or friends to X or within the presence and/or hearing of X;
(b)Showing X any communication between the parents; and
(c)Showing X any court documents, copies of reports, subpoenaed material or any other matter or material in these proceedings and from discussing the subject matter of the proceedings in the presence or hearing of X.
AND THE COURTS ORDERS THAT, UNTIL FURTHER ORDER:
8.The Mother and Father sign all documents, provide authority and do such acts required to:
(a)Appoint Ms K of L Psychology, M Street, Suburb N to undertake non-reportable counselling for X; and
(b)Obtain an educational assessment for X with Ms O of P Psychology, Q Street, Suburb R;
and the cost of same be shared equally by the Father and the Mother.
THE COURTS ORDERS BY CONSENT THAT, UNTIL FURTHER ORDER:
Disclosure
9.Within 21 days the parties each provide updated disclosure NOTING THAT Orders 19 and 20 of the Orders made 1 May 2023 require the parties to exchange relevant documents.
SMSF
10.The father and the mother provide all necessary instructions and do such acts and things required to instruct Super Fund 1 to complete the 2023 financial statements and returns for the Neuman-Hall Super Fund and provide the account balance for the father and mother respectively as at 30 June 2023.
AND THE COURTS ORDERS THAT,
Directions
11.Pursuant to r. 7.03 of the Federal Circuit and Family Court (Family Law) Rules 2021, the parties jointly appoint S Company as the single expert to value the real property located at G Street, Suburb H and to facilitate same:
(a)The Respondent shall draft the joint letter of instruction; and
(b)The Applicant and Respondent shall pay the costs of the engagement and preparation of the opinion equally.
12.The parties shall attend mediation conducted by Ms Belle Lane of Counsel on 9 October 2023 in relation to parenting and property issues.
13.The parties each exchange and provide to Ms Lane an outline of case document setting out:
(a)A brief chronology;
(b)Contentions as to the relevant best interest considerations and relevant legislative provisions concerning parenting orders sought;
(c)If property adjustment applications remain extant:
(i)A table detailing the parties’ property interests, liabilities and resources;
(ii)Contentions as to relevant s.79(4) and s.75(2) issues;
(iii)Contentions as to justice and equity underlying their proposed final Orders.
(d)A minute of proposed final Orders sought.
14.The mediator's fees and the mediation venue costs are to be paid by the parties equally.
15.This matter be listed for Final Hearing for property and parenting matters commencing 29 January 2024 before Judge O’Shannessy with an estimated hearing duration of 4 days.
16.By no later than 56 days prior to the final hearing commencing, the Applicant make, file and serve:
(a)Any further amended initiating application setting out the final Orders she seeks, if different to her extant application for final Orders;
(b)An affidavit of evidence in chief of all witnesses, including the Applicant; and
(c)An updated financial statement, if property adjustment applications remain extant.
17.By no later than 28 days prior to the final hearing commencing, the Respondent make, file and serve:
(a)Any further amended response to initiating application setting out the final Orders he seeks, if different to his extant application for final Orders;
(b)An affidavit of evidence in chief of all witnesses, including the Respondent; and
(c)An updated financial statement, if property adjustment applications remain extant.
18.By no later than 14 days prior to the final hearing, the Applicant make, file and serve any affidavits of evidence in reply.
19.By no later than 7 days prior to the final hearing, the parties each make, file and serve an outline of case document setting out the following:
(a)A brief chronology;
(b)Contentions as to the relevant best interest considerations and relevant legislative provisions concerning parenting orders sought;
(c)If property adjustment applications remain extant:
(i)A table details the parties’ property interests, liabilities and resources;
(ii)Contentions as to relevant s.79(4) and s.75(2) issues;
(iii)Contentions as to justice and equity underlying their proposed final Orders.
(d)A minute of proposed final Orders sought.
20.In the event either party takes issue with or disputes the single expert opinion as to the current market value of the Suburb H property, that party shall, by no later than 28 days prior to the final hearing, make, file and serve any application to adduce evidence from another expert and the other party shall file a response by no later than 14 days prior to the final hearing NOTING THAT nothing in this Order allows a party to adduce evidence as to the value of the Suburb H property other than the opinion proffered by the single expert appointed pursuant to these Orders.
21.The directions hearing before a Judicial Registrar on 11 September 2023 be vacated.
22.In the event of a dispute that will impact on the readiness for trial, the parties be at liberty to seek a directions hearing on short notice by email to the chambers of Judge O’Shannessy.
AND THE COURT NOTES THAT:
A.The parties acknowledge their obligation to provide documents relevant to the financial issues in dispute in accordance with Order 20 of the Orders made 1 May 2023.
B.The helpful minute of orders with contentious parts highlighted is exhibited this day as Exhibit C1.
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 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.
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.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to make the orally delivered reasons easier to read. The substance is unchanged.
This matter comes before me for an interim defended hearing where, at the time it was fixed for an interim hearing, there were substantial disputes between the parents.
The Applicant Mother is 47 years old and is a professional currently employed and working in Country B. The Respondent Father is 54 years old and is a professional currently working in Melbourne. The parties are fortunate to have a child, X, who is nine years and currently attending a local primary school in Melbourne.
By the common sense of the parents and the diligence of counsel and solicitors, what were quite substantial disputes about what should happen between now and the final hearing have been able to be resolved save for three points. Those points are:
(1)How often X and her mother should communicate between now and the final hearing;
(2)The date that X is to return from time with her mother in Country B back to Melbourne during the long summer school holidays; and
(3)Whether agreed and recommended counselling should be reportable or non-reportable.
Communication
The parties have the benefit of a very recent family report from Ms T, who has made certain recommendations about the communication time. The recommended communication time is less than what has been happening to date. X has been communicating with her mother almost every day and the evidence before me is that X enjoys that time. Because the time has been happening in that manner to date, I find the time should be each day (save for the alternate Saturday as now conceded by the mother).
The time limitations set out by the father are half an hour on weekdays and one hour on weekends unless otherwise agreed in writing. I find that those limits should apply in order to balance the child's need for time with her mother with the practicalities of the father's household. I do not propose to give more detailed reasons for that.
Return from Country B
The second issue I must determine is whether the child should return to the father's care should return on either dates in January 2024 or some other date that I determine. The parties agree that X will travel to Country B to spend time with her mother for roughly a month over the Australian long summer school holidays. Mr Neuman wants her to return to his care in January so that he can spend some time with her before the resumption of school. Ms Hall wants to return her a few days later in January so that she can spend a little more time with her in Country B. When I look at either party's case, if I only look at that case, each makes complete sense.
My determination is that the return should be in mid-January 2024. That is not because that is in the middle but because that is a compromise between the parties' two positions. On this interim hearing, I do not have sufficient information to make a more detailed decision. Either date would be splendid for X. Every day that the child spends with the mother will be precious to her mother and important for the child, but school holiday time to the modest degree sought by the father is also reasonable, so my decision on that changeover is mid-January 2024.
Counselling
In terms of the counselling, my decision is that that should be non-reportable because of the intrusion into X’s life of the reportable counselling process. She has recently been through that in the family report. I acknowledge the recommendation of the report writer, but this is a case where I have two fine parents who want to live in different countries. By the end of the final hearing, there will be a multitude of matters that may inform me as to the decision about with which parent X should predominantly live. But at this point, I am not satisfied that it is in X’s interest to undertake therapeutic counselling and make it reportable at the same time.
Case management
I will list the matter for final hearing on 29 January 2023 for four (4) days. I will add an order that the directions hearing listed 11 September 2023 be vacated.
There are some unusual circumstances in this case. The parties are sensibly trying to have the return of X to Australia at the end of her holiday in Country B coincide with, or be proximate to, the commencement of the in-person final hearing. Because of that sensible request and because the family report is current, I have determined to undertake trial directions this day.
Because we are not having a directions hearing and a compliance and readiness check and because I am relying on the well-known expertise of the solicitors involved, it means I am assuming that pre-trial steps will happen. Of course, I have got no doubt it will, unless there is a dispute. In the event of a dispute that will impact on readiness for trial, the parties will be at liberty to seek a direction on short notice by email to my chambers. I am not encouraging a dispute, but I do not want to turn up for final hearing only to find there is a glitch. It goes without saying no email will be read unless it has been cc’d to the other side.
Those are my reasons.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 23 August 2023
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