Federal Circuit and Family Court of Australia
(DIVISION 1)
Hawken & Hawken [2022] FedCFamC1F 508
File number(s): SYC 235 of 2022 Judgment of: SCHONELL J Date of judgment: 18 July 2022 Catchwords: FAMILY LAW – CHILDREN – Interim Orders – Where the mother sought to relocate to Country E with the children – Where the father and Independent Children’s Lawyer opposed the relocation – Where the father has a long standing history of mental health issues – Where the mother raises serious allegations of family violence perpetuated by the father – Where there are clearly allegations of risk – Where it would not be in the best interests at this stage to separate the children with their father – Where the children need stability and regular time with the father – Where there is a practical difficulty in maintaining a physical relationship with the father if the children move to Country E – Mother’s application dismissed – Children to initially spend supervised time with the father, with supervision to be lifted after three negative hair follicle tests. Legislation: Evidence Act 1995 (Cth) s 75
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 65DAA, 69ZL
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 11
Convention on the Civil Aspects of International Child Abduction
Cases cited: Adamson & Adamson [2018] FamCA 523
Atwill & Marden [2018] FCCA 1401
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Heath v Hemming (No2) [2011] FamCA 749
Marvel & Marvel (No. 2) (2010) 43 FamLR 348; [2010] FamCAFC 101
Mazorski & Albright (2007) 37 FamLR 518; [2007] FamCA 520
Sigley & Evor (2011) 44 FamLR 439; [2011] FamCAFC 22
Division: Division 1 First Instance Number of paragraphs: 97 Date of hearing: 10 June 2022 Place: Sydney Counsel for the Applicant: Mr Livingstone Solicitor for the Applicant: Coppertree Family Law Counsel for the Respondent: Mr Anderson Solicitor for the Respondent: Rafton Family Lawyers Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 235 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HAWKEN
Applicant
AND: MR HAWKEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
18 JULY 2022
THE COURT ORDERS THAT:
1.That the children of the relationship X born in 2012 and Y born in 2014 (“the children”) live with the applicant mother (“the mother”).
2.That the mother be restrained from relocating the children’s residence outside the Commonwealth of Australia.
3.That the respondent father (“the father”) spend time with the children as follows:
3.1. During school term:
3.1.1.each Wednesday from completion of school or 3 pm if not a school day to 8 pm.
3.1.2.commencing on the first Sunday following return to school each Sunday for the first three weeks of each four week period from 9 am to 5 pm (such that on the fourth weekend the children spend the complete weekend with the mother).
3.1.3.That the children communicate with the…
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CaseChat Overview and Summary
The court considered the primary considerations of the children's best interests, including the benefit of having a meaningful relationship with both parents and the need to protect the children from harm. The court found that the mother's allegations of family violence were serious, and most were denied by the father. The court was unable to resolve the disputed allegations of fact within the confines of the interim hearing. The court placed considerable weight on the observations of the Child Court Expert, who recommended that the children spend supervised time with the father for a period.
The court reasoned that the children needed stability and regular time with both parents. The court was not satisfied that the children's best interests were served by being returned to Country E at this stage. The court declined to grant the mother's application for interim relocation to Country E and ordered that the children initially spend supervised time with the father. The court also made various orders to ensure the children's safety and well-being, including orders for alcohol and mental health testing, supervision of contact, and participation in a parenting program.
The final orders included provisions for the children to live with the mother, restrained the mother from relocating the children's residence outside Australia, and set out detailed arrangements for the father to spend time with the children. The court also made orders for the children to participate in a parenting program, attend a specific school, and refrain from physical discipline. The proceedings were listed for trial for four days commencing on 11 April 2023. The parties were required to file various documents and attend assessments and programs in preparation for the trial. The court emphasised the importance of compliance with the orders and warned of the consequences of non-compliance.
Orders
Orders of the court
SYC 235 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS HAWKEN
Applicant
AND:
MR HAWKEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
18 JULY 2022
THE COURT ORDERS THAT:
1. That the children of the relationship X born in 2012 and Y born in 2014 (“the children”) live with the applicant mother (“the mother”).
2. That the mother be restrained from relocating the children’s residence outside the Commonwealth of Australia.
3. That the respondent father (“the father”) spend time with the children as follows:
3.1. During school term:
3.1.1. each Wednesday from completion of school or 3 pm if not a school day to 8 pm.
3.1.2. commencing on the first Sunday following return to school each Sunday for the first three weeks of each four week period from 9 am to 5 pm (such that on the fourth weekend the children spend the complete weekend with the mother).
3.1.3. That the children communicate with the father via facetime/skype or such other social media platform each Monday and Friday between 6 pm and 6.30 pm.
3.2. During short school term holidays on Monday, Wednesday and Friday of week one of the holidays from 9 am to 5 pm.
3.3. During the Christmas/January school holidays:
3.3.1. from 9 am to 5 pm on Christmas Day in 2022.
3.3.2. On the Monday, Wednesday and Friday of each alternate week commencing on 2nd January, 2023 from 9 am to 5 pm on each day.
3.4. In the event that the children are not spending time with the father on Father’s Day from 9 am to 5 pm on that day.
3.5. In the event that the children are spending time with the father on Mother’s Day, then Order 3.1.2. is suspended for the duration of mother’s day.
3.6. At such other times as agreed between the parties.
3.7. That for the purpose of this order, the father shall refrain from consuming alcohol 12 hours prior to and during the time that he spends with the children.
4. That the time referred to in Order 3 be supervised by a person agreed between the parties.
5. In the event that the parties are unable to agree upon a supervisor, or a supervisor cannot be located, the parties shall do all such acts and things and complete all necessary intake processes for the time to be supervised by R Services, with the father to meet the cost of such supervision.
6. That the children shall attend the B School and each of the parties are restrained from moving the children’s school without the written consent of the other party or by way of court order.
7. That the father is permitted to attend any school event, assembly or parent/teacher meeting or interaction, which parents in the normal course are invited to attend at the children’s school.
8. That within seven (7) days of the date of this order and thereafter on 21 October 2022, 21 January 2023 and 21 April 2023, the father is to make an appointment an attend for hair collection at AWDTS or their nominee for hair follicle alcohol testing.
9. That the testing pursuant to Order 8 herein is to be conducted at an approved laboratory, accredited to conduct hair alcohol testing to the recognised international standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to Order 8:
9.1. The father is to maintain his head hair at a length of not less than four (4) centimetres from the base of the scalp or skin, with neither head hair nor body hair is to be cut shorter than four (4) centimetres, treated, bleached or dyed until such time as this order is discharged.
9.2. The father is required to make the appointments with AWDTS by telephoning … for the purpose of providing a hair sample of 3 cm for hair follicle alcohol testing purposes, with collection to take place at the earliest possible date;
9.3. The father is to provide the collector with photographic identification to be recorded before each hair collection
9.4. The solicitor for the father shall provide a copy of such results to the Independent Children’s Lawyer (“the ICL”) and the mother’s solicitor within forty-eight hours of receipt of the results.
9.5. The cost of the hair follicle alcohol testing is to be met by the father.
10. That the father on the second Tuesday of each month obtain a referral from his general practitioner to an Australian accredited laboratory and provide such blood sample as is required for a liver function test to be undertaken.
11. That within twenty-four (24) hours of the results being received for the liver function testing, the father’s solicitor shall provide a copy of such results to the ICL and the solicitor for the mother.
12. That the father shall continue to attend upon his treating psychologist Ms C and general practitioner Dr D for the purpose of ongoing treatment of his alleged alcohol consumption and monitoring of his mental health, and shall accept and implement all recommendations made by those health practitioners and for this purpose, the father’s solicitor shall notify the ICL of any change of psychologist or general practitioner within forty-eight (48) hours of such change.
13. That leave is granted for the ICL to provide to the father’s treating psychologist Ms C and general practitioner Dr D a copy of the Child Impact Report dated 11 July, 2022.
14. That upon the father’s provision of three hair follicle results negative for alcohol and confirmation that the father has continued to engage with and has been compliant with all treatment by his psychologist and treating general practitioner the father shall spend time with the children as follows:
14.1. Subject to compliance with Order 14.2, the father spend unsupervised time with the children as follows:
14.1.1. in accordance with Order 3.1.1.
14.1.2. in substitution of Order 3.1.2 commencing on the first weekend from the commencement of school term each alternate weekend from completion of school Friday to 5 pm Sunday.
14.1.3. in substitution of Order 3.2 for one half of the short school term holidays commencing from conclusion of school on the last day of term that the children attend school to 12 noon on the middle Saturday.
14.2. That the father provide to the ICL and the mother the following:
14.2.1. three hair follicle results testing negative for alcohol, such results having been undertaken following compliance with Order 8 and 9.
14.2.2. A short form report from the father’s treating psychologist Ms C detailing the following:
14.2.2.1. that Ms C has received and reviewed all three hair follicle test results referred to in these orders and the liver function testing undertaken pursuant to Order 10.
14.2.2.2. that Ms C has read the Child Impact Report dated 11 July 2022.
14.2.2.3. That the father has been compliant with the treatment and direction given by Ms C in respect of the developed mental health plan, alcohol counselling and cognitive behavioural therapy for the father’s anxiety.
14.2.3. A short form report from the father’s treating general practitioner Dr D detailing the following:
14.2.3.1. that Dr D has received and reviewed the hair follicle test results referred to in these orders and the liver function testing undertaken pursuant to Order 10.
14.2.3.2. That Dr D has read the Child Impact Report dated 11 July 2022.
14.2.3.3. That the results of the testing regime as referred to in these Orders do not give rise to any concern that the father has recommenced consuming alcohol.
14.2.3.4. That the father has been compliant with Dr D treatment and direction in particular compliance with prescribed medication addressing his mental health and compliance with direction regarding alcohol abstinence.
15. That within seven (7) days of the day of these orders the parties shall contact V Services on … to register the children with the BB Program and shall ensure the parties and children’s attendance on any appointment or sessions in order to participate in the BB Program.
16. The parties through their legal representative shall inform the ICL of the location of the BB Program the children are participating in within seven (7) days of registration with the program.
17. That leave be given leave to the ICL to provide a copy of the Child Impact Report dated 11 July, 2022 and a copy of these orders to the manager of the BB Program.
18. That within seven (7) days of the date of these orders the parties register with W Services (phone …) and thereafter complete the Parenting Orders Program.
19. That the parties through their legal representatives notify the ICL of their registration with the parenting orders program and upon completion of the program provide to the ICL confirmation of completion of the course.
20. The neither party shall physically discipline the children.
21. That neither party shall denigrate the other party or a member of their family to, in the presence of or within the hearing of the children and shall use their best endeavours to ensure that no third person denigrates the other party or a member of their family to, in the presence of or within the hearing of the children.
AND THE COURT FURTHER ORDERS THAT:
Court Event
22. The proceedings are listed for trial for four days commencing on 11 April 2023.
Hearing fees
23. The Applicant and the Respondent must pay the setting down and hearing fees in equal amounts (or seek an exemption) no later than 28 days prior to the trial date.
Material to be filed
24. On or before 28 October 2022 the Applicant is to file and serve any Amending Initiating Application setting out with particularity the precise final orders sought.
25. On or before 11 November 2022 the Respondent is to file and serve any Amending Response setting out with particularity the precise final orders sought.
26. On or before 23 December 2022 each of the parties are to file and serve:
(a) an updating Financial Statement
(b) a single, consolidated trial Affidavit relevant to their case
(c) a single, affidavit of each witness including expert witnesses (subject to the rules or with leave) they intend to rely upon at trial
(d) an undertaking as to disclosure in accordance with Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and all affidavits are to comply with Part 8.3 Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
27. Except as already provided by these orders, the parties will not be permitted to file any further affidavits and may not rely upon any past affidavits at trial without the leave of the Court.
Single Expert
28. The parties are directed to within 28 days confer and reach agreement as to the appointment of a single expert to prepare a report as to the parenting matters in sufficient time to meet the hearing dates with the costs of such report to be met by the mother and father equally.
29. In the event that no agreement is reached then the ICL is to forthwith restore the proceedings to the list on 48 hours’ notice to the Court and to each other party.
Non-compliance
30. The compliance with these directions is not optional. The consequences of non-compliance can include orders for costs, including on an indemnity basis.
31. In the event that a party does not comply with these directions the court will give consideration to proceeding with the matter on the basis of evidence filed to the date of non-compliance.
32. In the event that any party becomes aware of any matter that would prevent the proceedings commencing on the first date allocated or continuing to conclusion on the last date allocated including non-compliance, that party is to forthwith restore the proceedings to the list on 48 hours’ notice to the Court and to each other party.
Balance Sheet
33. The Applicant shall not later than 28 days prior to the trial date serve upon the Respondent a joint draft balance sheet to include all assets, liabilities, superannuation interests, financial resources and property suggested to be relevant and to include values as alleged by each party and:
(a) the Respondent shall within 7 days of receipt of the draft balance sheet make any additions to the balance sheet as required to reflect contra allegations by the Respondent and any values that are agreed (if applicable)
(b) wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy
(c) upon completion of any Single expert valuation the balance sheet shall be amended to reflect determined/agreed values and
A final, settled version of the joint balance sheet shall be filed not later than 7 days prior to the trial date.
Subpoenas
34. Each party is at liberty to issue such subpoena as they consider relevant to the issues in these proceedings and such subpoena shall be made returnable not later than 14 days prior to the trial date and are to be inspected prior to the first day of hearing.
Liberty to Re-List
35. All parties have liberty to re-list the proceedings for mention in the event of issues arising in relation to preparation for trial.
Documents to be prepared for the Court
Objections
36. Each party shall, not later than 28 days prior to the trial date:
(a) notify the other party in writing of any objection to any material in any affidavit filed by the other party
(b) specify the paragraph or part of the paragraph objected to and
(c) detail the grounds of the objection.
The other party shall reply to the objections in writing within a further 7 days.
The parties before the Trial shall confer in relation to any objections and provide to the Court not later than 7 days prior to the trial date:
(a) the agreed deletions from each affidavit and
(b) the objections to be argued on the hearing date and the ground for the objections.
Case Outline
37. Not later than 7 days prior to the trial date, each party is to file and serve a case outline document in the approved form which shall not, without leave, exceed 5 pages in respect of parenting issues and 5 pages in respect of financial issues and shall include:
(a) a list of the material relied upon
(b) a brief chronology listing significant events that are relevant to the issues to be determined by the Court
(c) in a parenting case, a summary of contentions as to section 60CC factors relied upon to satisfy the Court that it is the best interests of the child(ren) to make the orders sought
(d) in a property case:
· contributions claimed or contended for and the percentage-based adjustment on contributions contended for
· relevant s 75(2) / 90SF(3) factors and the percentage-based adjustment contended for and
· any further factors relevant to determining a ‘just and equitable’ division of property.
Joint Chronology
38. Not later than 7 days prior to the trial date the parties are to confer and thereafter forward to my Associate a joint chronology in Microsoft Word format setting out all agreed facts that the parties ask the Court to take into account.
List of Issues
39. Not later than 7 days prior to the trial date each party is to file and serve the other parties with a document setting out with precision what that party contends to be the issues in the proceedings.
Factual Findings
40. Not later than 7 days prior to the trial date each party is to file and serve the other parties with a document setting out with precision the factual findings that party will contend should be made by the Court and in relation to each factual finding there is to be referenced the paragraph number in the Affidavit and/or a precise reference to the document in the Annexures or Exhibits that supports the making of the factual finding.
Trial Plan
41. Not later than 48 hours prior to the trial date the parties are to confer and prepare a trial plan allowing for the matter to complete within the allocated time including submissions.
Notification to Superannuation Trustee
42. Each party seeking a superannuation splitting Order binding the trustee of an eligible superannuation fund shall no later than 28 days prior to the commencement of the trial, notify the trustee in writing of the terms of the order sought and the date of the commencement of the Trial and shall provide a copy of such notification to the Trial Judge on the first day of the trial.
Tender Bundles
43. The parties’ legal representatives only and, if applicable, the Independent Children’s Lawyer are to photocopy all documents produced on subpoena to which access has been granted in the proceedings for the purposes of each preparing a proposed tender bundle. The tender bundle is to comprise all documents that the party or Independent Children’s Lawyer propose to tender into evidence or put to a witness in cross-examination. The tender bundle is to be bound, indexed and paginated and provided to each of the parties, to the Independent Children’s Lawyer and my Associate in hard copy not less than two business days prior to the commencement of the hearing.
For the purposes of this direction the provision of Rule 6.37 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 as to documents comprising child welfare records, criminal records, medical records or police records shall not apply.
Photocopies of any documents referred to above shall be retained in the possession of a parties’ legal representative and Independent Children’s Lawyer at all times, not be otherwise disseminated or distributed in any manner other than for the purposes of the proceedings and at the conclusion of proceedings be destroyed by the legal practitioner, and Independent Children’s Lawyer or returned to the Registry.
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
With the greatest of respect to her Honour, I agree with those observations.Primary and additional considerations In applying the primary considerations, the benefit to the children of having a meaningful relationship with both of the parents is subservient to the need to protect the children from the risks and harms identified in the subsection. A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 FamLR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 FamLR 439). Both parties would contend that what they propose meets the criteria of a meaningful relationship with the other parent. I am not satisfied that what the mother proposes by her application for return to Country E does. As stated above, I am required when applying the primary considerations to give greater weight to the need to protect the child from risk and harm than to the benefit to the child of having a meaningful relationship with both parents. As I have referred to above, the mother raises very serious allegations of family violence. Most of the mother’s allegations are denied by the father. I am, within the confines of this interim hearing, unable to resolve the disputed allegations of fact. I place considerable weight on the observations of the Child Court Expert, where she recorded: 34. Due to the nature of the allegations made by [Ms Hawken], it may be appropriate that [X] and [Y] spend supervised time with [Mr Hawken] for a period. Both parents seemed agreeable to this. [Mr Hawken] hopes to arrange this to be informally supervised and the CCE encouraged him to consider what arrangement may be the most feasible to confirm family and friends to supervise for a period. It is important that the children are not expecting certain arrangements and they are cancelled last minute as this may cause emotional distress and a sense of rejection, even if it is outside of [Mr Hawken’s] control.35. It is also crucial that neither parent (or their family and friends) denigrates the other as this has implications for the children’s emotional wellbeing, sense of self and identity.36. Due to the allegations raised it is likely that the Court will require information regarding [Mr Hawken’s] mental health, his diagnosis, treatment plan and his compliance.37. It may also be reassuring for [Ms Hawken] and the Court to confirm that [Mr Hawken] is refraining from alcohol.38. It is important to note that supervised time is a short term intervention to support children’s relationship with a parent while further information is being gather, assessments and interventions are being undertaken. If [Y] and [X’s] time was to transition to unsupervise this should be in a slow and gradual manner to offer them the greatest sense of security. Exhibit 1 (being the tender bundles relied upon by both parties) identifies that in 2016, the father was a described as a very angry man “given to passive aggressive undertones”. This may, on one view, sit somewhat uncomfortably with the father’s denials. I cannot ignore the allegations of risk. There is clearly a risk. I need to act cautiously, and orders need to be made to address the issues of risk that have been identified. The orders I propose address that balance.