FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Higgins & Best [2024] FedCFamC2F 995
File number(s): BRC 7580 of 2024 Judgment of: JUDGE BERTONE Date of judgment: 25 June 2024 Catchwords: FAMILY LAW – Parenting – interim hearing – mother seeks recovery of child – child aged two – father alleges child is at risk in mother’s care – child to be returned to mother – child to spend time with father four nights a fortnight – child impact report ordered. Legislation: Family Law Act 1975, ss 60CA, 60CC, 60CG, 67ZBD Cases cited: Goode & Goode [2006] FamCA 1346
Isles & Nelissen [2022] FedCFamC1A 97
Division: Division 2 Family Law Number of paragraphs: 62 Date of last submission/s: 25 June 2024 Date of hearing: 25 June 2024 Place: Brisbane Solicitor for the Applicant: Mr O’Brien Counsel for the Respondent: Mr Casey Solicitor for the Respondent: Chomley Family Law ORDERS
BRC 7580 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HIGGINS
Applicant
AND: MS BEST
Respondent
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
25 JUNE 2024
BY CONSENT THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the child X born in 2022 (“the child”) communicate with the other parent each Tuesday and Wednesday between 4:30pm and 5:30pm via FaceTime or videocall.
2.That the parents are restrained from recording or allowing any third party to record any FaceTime or videocall the child has with the other parent.
3.That each parent is to keep the other parent informed of any changes in their mobile phone number and shall communicate with each other by mobile phone, either by text message or voice call.
4.That the mother will inform the father of the area (not the exact address) of her residence and notify the father within forty-eight (48) hours of such change.
5.That each parent will notify the other within forty-eight (48) hours of any new adult who moves into that parent’s house as their primary residence.
6.That the parents are to enrol in and complete a Triple P parenting course and provide the other parent with a certificate of completion within fourteen (14) days of receiving such certificate of completion.
THE COURT ORDERS UNTIL FURTHER ORDER:
7.That the child be returned to the care of the mother by 6:00pm today, Tuesday 25 June 2024 with changeover to occur at McDonalds at Town B and to be effected by the paternal grandmother delivering the child to McDonalds and the maternal grandmother collecting the child.
8.That the child live with the mother.
9.That commencing Thursday 4 July 2024, the child spend time with the father each alternate weekend from 4:00pm Thursday until 9:00am on Monday.
10.That changeovers shall occur at the child’s daycare on a daycare day, or at McDonalds Town B on a non-daycare day.
11.That in the event the child is not otherwise spending time with the father on the Father’s Day weekend, the child spend time with the father…
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CaseChat Overview and Summary
The court considered the welfare and best interests of the child as the paramount concern. It was necessary to balance the allegations of risk against the mother’s care. The court examined evidence and submissions from both parties, along with any expert opinions. Given the age of the child and the need for stability, the court determined that the child should primarily reside with the mother but also spend specific time with the father.
The court ordered that the child be returned to the mother's care and that the father have visitation rights on alternate weekends. Additionally, the court mandated specific communication protocols between the parents and required them to complete a Triple P parenting course. The court also ordered a Child Impact Report to further assess the child's needs and welfare. The matter was adjourned for further mention to allow for the preparation of this report and other necessary arrangements.
Orders
Orders of the court
BRC 7580 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR HIGGINS
Applicant
AND:
MS BEST
Respondent
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
25 JUNE 2024
BY CONSENT THE COURT ORDERS UNTIL FURTHER ORDER:
1. That the child X born in 2022 (“the child”) communicate with the other parent each Tuesday and Wednesday between 4:30pm and 5:30pm via FaceTime or videocall.
2. That the parents are restrained from recording or allowing any third party to record any FaceTime or videocall the child has with the other parent.
3. That each parent is to keep the other parent informed of any changes in their mobile phone number and shall communicate with each other by mobile phone, either by text message or voice call.
4. That the mother will inform the father of the area (not the exact address) of her residence and notify the father within forty-eight (48) hours of such change.
5. That each parent will notify the other within forty-eight (48) hours of any new adult who moves into that parent’s house as their primary residence.
6. That the parents are to enrol in and complete a Triple P parenting course and provide the other parent with a certificate of completion within fourteen (14) days of receiving such certificate of completion.
THE COURT ORDERS UNTIL FURTHER ORDER:
7. That the child be returned to the care of the mother by 6:00pm today, Tuesday 25 June 2024 with changeover to occur at McDonalds at Town B and to be effected by the paternal grandmother delivering the child to McDonalds and the maternal grandmother collecting the child.
8. That the child live with the mother.
9. That commencing Thursday 4 July 2024, the child spend time with the father each alternate weekend from 4:00pm Thursday until 9:00am on Monday.
10. That changeovers shall occur at the child’s daycare on a daycare day, or at McDonalds Town B on a non-daycare day.
11. That in the event the child is not otherwise spending time with the father on the Father’s Day weekend, the child spend time with the father from 4:00pm on Saturday to 4:00pm on Sunday.
THE COURT ORDERS:
Child Impact Report
12. That pursuant to section 62G of the Family Law Act 1975, the parties and the child X born in 2022 shall attend upon a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the “Court Child Expert”) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
13. That:
(a) Part 1 of the event will occur by video, using Microsoft Teams, on 3 October 2024 with:
(i) the Applicant to attend at 9.00am; and
(ii) the Respondent to attend at 10.30am; and
(iii) Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
(b) Part 2 of the event will occur in person at the Federal Circuit and Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane on the morning of 4 October 2024. Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.
14. That each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
15. That the parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
16. That by no later than 4.00pm on 9 July 2024, the parties must provide their contact telephone numbers and email addresses to ChildImpactReports.CCS@fcfcoa.gov.au.
17. That the Court Child Expert will be at liberty to inspect any material filed by the parties and any material produced under subpoena in the proceedings.
18. That pursuant to Order 12 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a) any agreement reached between the parties;
(b) identification of key issues requiring resolution;
(c) any other matters that the Court Child Expert considers important to the welfare or best interests of the child.
19. That upon completion, the Child Impact Report shall be provided to the Court for release to the parties, including by way of order made in Chambers.
20. That in preparation of the Child Impact Report, the Family Consultant is at liberty to inspect and have regard to:
(a) any material filed by the parties including all Applications and Responses (including Amended Applications and Responses), Affidavits, expert reports and Notices of Family Violence, Child Abuse and Risk;
(b) judgments, orders, reports or other material produced by the Court in the current proceedings;
(c) material produced to the Court under a subpoena or a s.67ZBD or s.67ZBE order.
21. That unless otherwise ordered, no person shall release the report, or provide access to the report to any other person.
22. That pursuant to Section 13C(1)(b) of the Family Law Act 1975 (Cth), the parties and their legal representatives (if any) shall attend:
(a) Part 1 of the confidential Court-based Family Dispute Resolution (FDR) Conference with a Registrar (as Family Dispute Resolution Practitioner) on a date to be fixed, with each party to attend separately at times to be advised; and
(b) Part 2 of the confidential Court-based FDR Conference on a date and at a time to be fixed but not later than seven (7) days after the date referred to in order 22(a).
23. That the matter shall be referred to the Executive Director – National Registrar Operations and Practice for allocation and listing of the FDR Conference dates.
Part 1 of the FDR Conference
24. That Part 1 of the confidential FDR Conference shall proceed by telephone and each party must, within two (2) days of receiving notification of the dates of each part of the FDR Conference, notify the Court by email of their best contact telephone number (and include details of the file name and Court file number).
25. That unless otherwise directed by the Registrar conducting the FDR Conference, the Independent Children’s Lawyer’s appearance shall be excused from Part 1 of the FDR Conference.
26. That by no later than 4.00 pm seven (7) days prior to Part 1 of the FDR Conference, each party must:
(a) ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 have been exchanged;
(b) ensure that any private expert report that is relevant to the proceedings has been filed;
(c) provide to the Court by email and to the other party a single collated bundle of documents comprising:
(i) a Confidential Outline of Case (Dispute Resolution);
(ii) a detailed minute of Orders Sought;
(iii) details of any previous or current family violence orders; and
(iv) a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted).
FDR Conference
27. That the parties shall otherwise comply with any other necessary order, direction or request made by the Registrar to facilitate the FDR Conference.
28. That the Registrar may vacate the FDR Conference in the event:
(a) of non-attendance by either party at Part 1 of the Conference; or
(b) that pursuant to Regulation 29 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008, the Registrar is no longer satisfied that the conference is appropriate.
Next Court Date
29. That the Court event on 16 July 2024 before a Judicial Registrar be vacated.
30. That the matter is adjourned for mention to the Federal Circuit and Family Court of Australia (Division 2) at Brisbane at 9.00am on 18 November 2024.
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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