FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hanks & Germanova [2024] FedCFamC2F 207
File number(s): PAC 2639 of 2021 Judgment of: JUDGE STREET Date of judgment: 12 February 2024 Catchwords: FAMILY LAW – PARENTING – adjournment application - interim parenting orders Legislation: Family Law Act 1975 (Cth) Cases cited: Metrellis & Chase [2023] FedCFamC2F 1241 Division: Division 2 Family Law Number of paragraphs: 12 Date of hearing: 12 February 2024 Place: Sydney Counsel for the Applicant: Mr P Friedlander Solicitor for the Applicant: Fletch Law Respondent: Appeared via telephone Counsel for the Independent Children’s Lawyer: Ms M Yu Independent Children’s Lawyer: Harb Lawyers ORDERS
PAC 2639 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HANKS
Applicant
AND: MS GERMANOVA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
12 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The final parenting hearing listed for 12, 13 & 14 February 2024 is vacated.
2.The parenting is fixed for a final parenting hearing commencing at 10:00AM on 20, 21 & 22 August 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3.The applicant file and serve a further amended application on or before 29 February 2024.
4.The respondent file a response on or before 21 March 2024.
5.The applicant file and serve any updated short supplementary trial affidavit, if desired, on or before 8 May 2024.
6.The respondent file and serve and updated trial affidavit on or before 5 June 2024.
7.The applicant file and serve a case outline on or before 26 June 2024.
8.The respondent file and serve a case outline on or before 10 July 2024.
9.The ICL file and serve a case outline seven (7) days prior to hearing date.
10.Leave is granted to the parties, including the ICL, to provide any proposed tender bundle material via email or USB.
11.Leave is granted to the parties, including the ICL, to issue more than five (5) subpoenas.
12.Leave is granted to the parties, including the ICL, to have photocopying access to the material produced under subpoena subject to any proper notice of objection.
13.Leave is granted to the parties, including the ICL to provide consent orders to be made in chambers, if appropriate.
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
14.All previous parenting orders are discharged.
15.The Father is to have sole parental responsibility for the children X born 2013, and Y born 2017 (the Children).
16.For the purposes of Order 15 above, the Father is to:
(a)notify the Mother in writing at least 7 days before making any long-term decisions in relation to the children;
(b)consider any views expressed by the Mother; and
(c)inform the Mother in writing within 24 hours of making a decision in relation to the children.
17.The children are to live with the Father.
18.The children are to spend time with the Mother as follows:
(a)Until the Mother produces four (4) consecutive…
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CaseChat Overview and Summary
The court acknowledged the recent hospitalisation of the respondent and the procedural difficulties due to changes in her contact information. Despite these issues, the court granted the adjournment to allow the respondent time to secure legal representation. The interim parenting orders were carefully crafted to balance the needs of the children with the safety concerns raised by the applicant. The court imposed conditions on the respondent's visitation rights, requiring her to undergo drug testing and counselling, and mandated supervised visits until she could demonstrate sobriety. The court also outlined specific visitation schedules that would gradually increase in duration and supervision as the respondent met certain conditions.
In its decision, the court emphasised the importance of maintaining communication between the parents and ensuring the children's welfare. It established a framework for sharing information about the children's activities, medical needs, and schooling. The court also addressed logistical matters, such as the method of communication between the parents and the procedures for sharing documents and subpoenas. The final parenting hearing was rescheduled to allow sufficient time for the parties to prepare their cases, including the filing of further affidavits and case outlines.
The court's orders reflect a careful consideration of the parties' circumstances and the best interests of the children. The adjournment allows the respondent to secure legal representation, ensuring a fair hearing. The interim parenting arrangements are designed to protect the children while also providing opportunities for the respondent to rebuild her relationship with them. The detailed procedural directions aim to streamline the preparation for the final hearing, ensuring that all necessary information is available to the court in a timely manner.
Orders
Orders of the court
PAC 2639 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR HANKS
Applicant
AND:
MS GERMANOVA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
12 FEBRUARY 2024
THE COURT ORDERS THAT:
1. The final parenting hearing listed for 12, 13 & 14 February 2024 is vacated.
2. The parenting is fixed for a final parenting hearing commencing at 10:00AM on 20, 21 & 22 August 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3. The applicant file and serve a further amended application on or before 29 February 2024.
4. The respondent file a response on or before 21 March 2024.
5. The applicant file and serve any updated short supplementary trial affidavit, if desired, on or before 8 May 2024.
6. The respondent file and serve and updated trial affidavit on or before 5 June 2024.
7. The applicant file and serve a case outline on or before 26 June 2024.
8. The respondent file and serve a case outline on or before 10 July 2024.
9. The ICL file and serve a case outline seven (7) days prior to hearing date.
10. Leave is granted to the parties, including the ICL, to provide any proposed tender bundle material via email or USB.
11. Leave is granted to the parties, including the ICL, to issue more than five (5) subpoenas.
12. Leave is granted to the parties, including the ICL, to have photocopying access to the material produced under subpoena subject to any proper notice of objection.
13. Leave is granted to the parties, including the ICL to provide consent orders to be made in chambers, if appropriate.
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
14. All previous parenting orders are discharged.
15. The Father is to have sole parental responsibility for the children X born 2013, and Y born 2017 (the Children).
16. For the purposes of Order 15 above, the Father is to:
(a) notify the Mother in writing at least 7 days before making any long-term decisions in relation to the children;
(b) consider any views expressed by the Mother; and
(c) inform the Mother in writing within 24 hours of making a decision in relation to the children.
17. The children are to live with the Father.
18. The children are to spend time with the Mother as follows:
(a) Until the Mother produces four (4) consecutive hair follicle tests taken three (3) months apart that are negative for all illicit substances, the children are to spend supervised time with the Mother at B Contact Centre (or another supervision service as agreed between the parents in writing) for no less than once a fortnight for two (2) hours, at a time suitable to the Mother and Father, the costs associated with the Contact Centre’s services and hair follicle tests to be shared equally; and
(b) At the conclusion of Order 18(a) above, unless otherwise agreed between the parents in writing, the children are to spend unsupervised time with the Mother:
(i) from 10am to 2pm each alternate Sunday for a period of eight weeks (or 4 occasions);
(ii) at the conclusion of Order 18(b)(i) from 10 to 4pm each alternate Sunday for a period of eight weeks (or 4 occasions);
(iii) at the conclusion of Order 18(b)(ii) from 10 to 6pm each alternate Sunday for a period of eight weeks (or 4 occasions);
(iv) at the conclusion of Order 18(b)(iii) from after school or 3pm Friday to 10am on Saturday each alternate weekend for a period of eight weeks (or 4 occasions);
(v) at the conclusion of Order 18(b)(iv) from after school or 3pm Friday to 10am on Sunday each alternate weekend for a period of eight weeks (or 4 occasions);
(vi) at the conclusion of Order 18(b)(v) from after school or 3pm Friday to before school or 9am on Monday each alternate weekend.
(c) To give effect to Order 18(b), the Mother and Father are each to:
(i) Provide all information and complete all necessary paperwork as may be requested by the Contact Centre;
(ii) Attend any intake or assessment appointments as may be requested by the Contact Centre on such days and times nominated by the Contact Centre; and
(iii) Comply with any other reasonable request or direction of the Contact Centre for the purpose of implementing these Orders.
19. That upon the Mother commencing time as per Order 18(b) above, the children shall spend time with the Father and Mother on special occasions as follows:
(a) On Mother’s Day from 9am to 5pm;
(b) On Father’s Day from 9am to 5pm;
(c) On Christmas Eve from 9am to 5pm in even numbered years; and
(d) On Christmas Day from 9am to 5pm in odd numbered years.
20. The parents shall facilitate telephone time between the children and the other parent, in accordance with the children’s wishes while they are in the other parent’s care provided that until time commences after with compliance with order 18(a) above, the Mother shall have FaceTime contact at least on each Wednesday evening with the children.
21. The parties will both be entitled to attend all events involving the children including but not limited to:
(a) Sporting fixtures;
(b) Extra-curricular activities that allow for parental attendance;
(c) Day-care centre or school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions; and
(d) the parent who has the children in their care on the day of such activity will be responsible for their day-to-day care at such event and the child’s transportation to and from that event.
22. The parents shall ensure that the other is kept informed of:
(a) any medical problems or illnesses suffered by the children requiring immediate medical attention, while in their care;
(b) any medication that has been prescribed for the children; and
(c) any social, school, or religious functions which the children are to attend.
23. That for the purposes of communicating information between the parties the parties shall:
(a) communicate by telephone matters of an urgent nature, and otherwise; and
(b) communicate via a parenting application such as Our Family Wizard or another agreed platform about day-to-day matters including arrangements for each party to spend time with the children.
24. That within 14 days of the children’s subsequent enrolment at any school the Father is to do all acts and things necessary and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that day-care centre or school forward directly to the Father copies of all of the child’s reports and merit cards, any written material pertaining to each child’s academic and extra‑curricular activities.
25. That each parent advises the other parent of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within 48 hours of such change occurring.
26. The Mother is to engage and remain engaged in drug and alcohol counselling until such time that she produces four (4) consecutive hair follicle tests taken three (3) months apart that are negative for all illicit substances.
27. Each parent is to enrol in and complete one of the following courses and provide the other parent with a certificate of completion upon receipt:
(a) Bringing Up Great Kids; or
(b) Tuning into Kids.
28. Pursuant to s 68B of the Family Law Act 1975 (Cth) each parent is restrained from:
(a) making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children, and is to ensure that no third party does so;
(b) discussing these proceedings or the Father’s criminal proceedings in the presence or hearing of the children, and is to ensure that no third party does so; and
(c) physically disciplining the children.
29. The applicant father pursuant to s 11 of the Passports Act 2005 (Cth) has authority to obtain a passport for X, born 2013, and Y, born 2017 without requiring the consent of the respondent mother.
30. The father may take the children overseas provided that he has given at least four (4) weeks’ notice to the mother of the proposed itinerary and has purchased return airfare tickets which are notified to the mother at least two (2) weeks prior to departure and if supervised visits have commenced, they will be suspended during that overseas travel and there is to be makeup time as agreed between the parties, reflecting the time that the children would have otherwise spent with the mother at a supervised contact centre insofar as practicable.
THE COURT NOTES THAT:
A. The adjournment of the final hearing was not opposed by the applicant or the ICL in circumstances where the respondent mother had recently been admitted, on two occasions, into hospital and had a different email address that was being used by the ICL and the applicant father.
B. The respondent is entitled to legal aid representation, through Commonwealth funding, because of the s102NA order, made by this Court on 21 July 2023, and the respondent mother should take very prompt steps to obtain that representation and the filing for an address for service by her legal practitioner.
C. If the respondent has not taken the steps required under the procedural orders, the matter may proceed as an undefended hearing, if appropriate, on the next occasion.
D. The Court requests the ICL provide a copy of these orders to the mother’s new email address and follow up with the mother the obtaining of that legal representation as far as reasonably practicable.
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.
Background
Background to the litigation
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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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