FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harvey & Harvey [2024] FedCFamC2F 1431
File number(s): ADC 4124 of 2024 Judgment of: JUDGE TURNBULL Date of judgment: 17 October 2024 Catchwords: FAMILY LAW – REVIEW – Whether interim orders made by a Senior Judicial Registrar should be varied by changing the living arrangements of the children – Whether it is in the bests interests of the children to live with the Father and/or spend significant time with him – Whether either party poses an unacceptable risk to the children. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Denton & Denton (No 3) [2024] FedCFamC1F 476
Eaby & Speelman[2015] FamCAFC 104
Hansen & Kane [2022] FedCFamC2F 949
Marvel & Marvel[2010] FamCA 240
SS & AH[2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 58 Date of hearing: 9 October 2024 Place: Burnie via Microsoft Teams Counsel for the Applicant: Mr Bowler Solicitor for the Applicant: Randle & Taylor Counsel for the Respondent: Mr Roberts Solicitor for the Respondent: Mills Oakley Adelaide ORDERS
ADC 4124 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HARVEY
Applicant
AND: MS HARVEY
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
17 OCTOBER 2024
THE COURT ORDERS THAT:
Appoint of the Independent Children’s Lawyer
1.Pursuant to Section 68L(2) of the Family Law Act 1975 (Cth) the children X born in 2018 and Y born in 2020 be independently represented AND IT IS REQUESTED that the Legal Aid Commission of South Australia arrange such independent representation.
2.Forthwith upon appointment by the said Legal Aid Commission of South Australia or otherwise the Independent Children's Lawyer ("the ICL") file a Notice of Address for Service.
3.Within 48 hours of notification of such appointment the parties or their solicitors must provide to the independent children's lawyer copies of all relevant documents relied upon.
4.The ICL fulfil the requirements set out in 'Guidelines for the Independent Children's Lawyer' as published on the website of the Federal Circuit and Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
5.The ICL prepare a minute of the orders they will recommend be made as final orders.
6.Upon their appointment, and after filing of an Notice of Address for Service, the ICL may INSPECT and COPY:
(a)All documents previously produced to the court in response to a subpoena issued in the proceedings and released to the parties. The ICL may provide a copy of any such material to any expert, person or agency who is preparing a report or treating the parties or children, for the purposes of assisting them to do so;
(b)Material produced by Child Protection Services and/or South Australia Police in response to the notification made under s 67ZBD; and
(c)Documents produced by the Child Protection Services and/or South Australia Police in response to the order to…
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- Harvey & Harvey [2024] FedCFamC2F 1431
- Case
- [2024] FedCFamC2F 1431
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CaseChat Overview and Summary
The court had to determine whether the interim orders should be varied to allow the children to spend more time with the father and potentially change their primary residence to live with him. The court also needed to assess whether either party posed an unacceptable risk to the children. This involved examining the evidence presented by both parties, including affidavits, reports from experts, and submissions from the Independent Children's Lawyer.
The court found that while the father had made efforts to be involved in the children's lives, the children's primary residence should remain with the mother for the time being. The court noted that the children were young and that maintaining stability in their primary residence was in their best interests. The court also found that neither party posed an unacceptable risk to the children, though both parties were cautioned about their conduct at changeovers and on social media. The application for review was dismissed, and the interim orders were largely upheld with some modifications to the changeover arrangements.
The court ordered that the children be represented by an Independent Children's Lawyer and set out specific duties for the lawyer, including inspecting and copying relevant documents and preparing a minute of recommended final orders. The court also restrained both parties from making posts on social media that referenced the other party or the proceedings, from behaving in a manner that could cause the children fear or anxiety, and from consuming alcohol to excess while the children were in their care. The changeover arrangements were modified to ensure the children's safety and to provide a more stable environment for the transition between parents.
Orders
Orders of the court
ADC 4124 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR HARVEY
Applicant
AND:
MS HARVEY
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
17 OCTOBER 2024
THE COURT ORDERS THAT:
Appoint of the Independent Children’s Lawyer
1. Pursuant to Section 68L(2) of the Family Law Act 1975 (Cth) the children X born in 2018 and Y born in 2020 be independently represented AND IT IS REQUESTED that the Legal Aid Commission of South Australia arrange such independent representation.
2. Forthwith upon appointment by the said Legal Aid Commission of South Australia or otherwise the Independent Children's Lawyer ("the ICL") file a Notice of Address for Service.
3. Within 48 hours of notification of such appointment the parties or their solicitors must provide to the independent children's lawyer copies of all relevant documents relied upon.
4. The ICL fulfil the requirements set out in 'Guidelines for the Independent Children's Lawyer' as published on the website of the Federal Circuit and Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
5. The ICL prepare a minute of the orders they will recommend be made as final orders.
6. Upon their appointment, and after filing of an Notice of Address for Service, the ICL may INSPECT and COPY:
(a) All documents previously produced to the court in response to a subpoena issued in the proceedings and released to the parties. The ICL may provide a copy of any such material to any expert, person or agency who is preparing a report or treating the parties or children, for the purposes of assisting them to do so;
(b) Material produced by Child Protection Services and/or South Australia Police in response to the notification made under s 67ZBD; and
(c) Documents produced by the Child Protection Services and/or South Australia Police in response to the order to provide documents or information (s 67ZBE Order).
7. All parties are directed to attend all conferences as scheduled by the ICL from time to time.
8. The Mother will ensure that the children are available to meet the ICL as and when directed by that person.
Further Orders
9. The ICL has leave to seek clarification, from Dr B, of any aspect of her report dated 24 September 2024, and to that end has leave to provide to Dr B:
(a) A copy of the parties’ affidavits, including the annexures to the Father’s affidavits showing the Mother’s social media posts;
(b) A copy of the affidavit of Ms C;
(c) A copy of the police statement relating to police interaction with the parties in late 2024, as found in the section 67ZD notice from SA Police.
10. By consent, Order 7 of the Orders made 30 August 2024 be discharged and replaced with the following order:
‘Where changeover does not occur at school, and unless otherwise agreed in writing, changeover shall occur at McDonalds [Suburb D] South Australia with:
(a) The changeover to occur inside the restaurant, with the Fathers agent receiving or returning the children to the Mother;
(b) The receiving party to remain in the restaurant with the children for 10 minutes after the changeover, to allow the other party time to depart the vicinity of McDonald’s. [Suburb D]’
(c) Unless otherwise agreed, the Father to remain in his vehicle while the changeover at Mc Donald’s occurs pursuant to this Order.
11. Pursuant to section 68B(2) of the Family Law Act 1975 (Cth) both parties are restrained from:
(a) Making any post on any social media platform that directly or indirectly identifies or makes reference to the other party, or these proceedings;
(b) Behaving in any manner at changeover that has the potential of causing the children fear or anxiety or bringing them into a situation of conflict between the parties or anyone assisting either of the parties at changeover;
(c) Consuming alcohol to excess while the children are in their care.
12. The Application for Review filed 6 September 2024 is otherwise dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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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