Hanks & Germanova
[2024] FedCFamC2F 207
•12 February 2024
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 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.
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 STREET
These parenting proceedings were commenced on 17 May 2021 and concern two children, X, born 2013, and Y, born 2017 (“the children”). On 21 July 2023 these parenting proceedings were fixed for a final parenting hearing commencing 12 February 2024 to continue for three days. The Court also made procedural orders, none of which the respondent mother (“the mother”) complied with. At the commencement of the hearing today the Court contacted the mother by telephone and the mother indicated that she had been unaware of the intended hearing date until about two weeks ago and that she had been in hospital during January. The Court requested the mother to provide copies of the discharge reports relating to her hospital attendance. The mother did so. Those discharge reports have been marked exhibit A.
The Court raised with the mother that the Court had made orders under s 102NA of the Family Law Act 1975 (Cth) (“the Act”) that would have facilitated her obtaining Legal Aid representation at the hearing. The Court also indicated that the proposed orders by the ICL were the type of orders that might well be appropriate orders at a final hearing. The Court made reference to the fact that on the evidence that had been filed, it appeared that the mother had an illicit drug addiction in relation to which orders of the kind by the ICL would ordinarily be appropriate. The Court gave the mother an opportunity to consider whether she wished to try and resolve the matter consensually at the final hearing or wished to make an adjournment.
The matter was stood down until 2 o’clock today to facilitate the mother deciding on the course that she wished to adopt. At that stage, at 2 o’clock, the mother indicated that she wished to apply for an adjournment because she wanted to obtain legal representation. The mother also informed the Court that she at that stage did not oppose the making of the interim orders making of the orders as sought by the ICL on an interim basis. The Court then commenced going through each of the ICLs proposed orders to ensure that any difference between the parties was identified. The mother identified becoming distressed and left the hearing room.
The Court is satisfied that the mother was on notice and the interim hearing would continue before this Court, even though the Court had identified that it had made an order adjourning the matter and would make appropriate interim orders. The Court proceeded to have identified the proposed orders which were being sought by the ICL. The mother, before she left the hearing, confirmed that she agreed with orders that provided for the applicant father (“the father”) to have sole parental responsibility on an interim basis and for notification of long‑term decisions as proposed by the ICL and for the children to live with the father. The Court then started embarking upon whether the mother consented to order 18. The mother indicated that she had difficulty meeting the cost of the hair follicle tests and asked for the Court to order that the father pay the whole of the hair follicle tests. The proposed order by the ICL identified a sharing of the cost of the contact equally between the parties.
While the Court accepts that the economic circumstances of the mother are likely to be parlous, it is entirely appropriate that it is the mother who contributes towards the costs of the hair follicle test equally with the father in circumstances where it is the mother who, on the material before the Court, has had a drug addiction. The Court does not regard it as appropriate to impose the whole of the burden of the costs of hair follicle tests upon the father at this stage of the proceedings. The mother indicated that she earned a meagre amount each week and that she would find it difficult to meet the cost of the hair follicle tests, which the Court was informed were approximately $800. There are only four tests that are required under order 18(a). It is entirely appropriate that the mother bear part of the burden of those costs, and the proposed equal sharing was supported by the ICL.
To the credit of the father, he also supported an equal sharing of those costs as well as equally sharing the costs of the supervised contact centre. The consent to share equally in those costs by the father shows an important level of insight in relation to prioritising the best interests of the children. It is unquestionably in the best interest of the children if a meaningful relationship can be restored with the mother, and that very much depends upon the mother taking appropriate steps to address her addiction. The sharing of those costs equally is a sensible and fair approach, which is consistent with the father recognising the importance, if the mother is able to, address her addiction of advancing the relationship between the children and the mother. The Court is satisfied that that sharing of costs, albeit opposed by the mother, is an appropriate order. It was at this point that the mother dropped out of the hearing.
The Court is satisfied that if the mother has complied for the testing requirement for 12 months, it is appropriate on an interim basis for the progression of time, as identified in order 18(b) and (c) and for then also special occasions, as identified in order 19. There was a proposed order for facilitating telephone time, which has been by Facebook on Wednesday, even with the mother. It is important that that FaceTime continue, and the Court varied the proposed order without opposition to ensure that there was added to the proposed order 6 until completion of the tests that will be required what will be 22(a) that the mother have FaceTime contact with the children at least every Wednesday evening.
The Court heard a submission from the father that the steps in terms of attending school and sporting functions should await compliance with order 18(a). The Court is not persuaded that it is appropriate to prevent the attendance at those sporting fixtures and the like. Whilst there is some dispute about conduct at a funeral, it is apparent that the mother did attend sporting fixtures without issue or incident, and the Court is satisfied that it is in the interests of the children to make an interim order facilitating attendance by the mother at those events. The Court appreciates that there is a risk of the mother attending in a state that could distress the children, but that is not what has occurred in the past. The Court regards that risk and the evidence as presently existing as not sufficiently high to warrant the completion of the steps required by order 18(a).
There was no opposition with the making of order 22 and order 23 and order 24 and order 25 as proposed by the ICL. The Court declines to make an order for the father to continue to take X to a psychologist at this stage. Ms Yu pointed out that there was such recommendation in the family report, compelling a child to engage with a psychologist and/or therapist. At the age that X is now approaching has the potential risk that she will not seek appropriate treatment in the future when it may be necessary means the Court is not persuaded that is an appropriate interim order in the best interest of the child at this stage.
In relation to the proposed order 13 by the ICL, Ms Yu pointed out that such an order was suggested in the family report. The Court was informed that the father has not been recently attending a psychologist for counselling, but he has engaged in completing a Triple P course and has enrolled to undertake Tuning Into Kids course. They were steps that were identified quite some time ago in the family report and really should have been completed. However, the Court does not regard imposing the step, as identified in order 13 as a necessary order. At this stage, it may well be prudent for the father to address the same in his further supplementary evidence, but the Court declines to make the order as sought by the ICL in order 13. There is no opposition to the making of orders 26, 27 and 28 as proposed by the ICL. The Court has taken into account principles that are in Part 7 and in particular the principles in ss 60B and 69ZN of the Act, and the principles as set out in Metrellis & Chase [2023] FedCFamC2F 1241 at [68] – [87].
The Court has taken into account the primary considerations under s 60CC of the Act in making the above orders, and the circumstances of this case. The Court has also taken into account the additional considerations under s 60CC(3) of the Act . The Court notes that X is at an age where she has expressed a view of willingness to engage with the mother, if the mother is able to address her issues. The Court does not regard the circumstances in the present case as otherwise requiring any detailed identification of the additional considerations given the narrow issues. It is unfortunate that the mother left the hearing room, but it is appropriate to put in place the interim orders the Court has identified. The Court is satisfied that the orders made are in the best interests of the children.
Accordingly, the Court makes the above following orders.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 20 February 2024
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