Hoover & Friedman
[2023] FedCFamC1F 859
•11 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Hoover & Friedman [2023] FedCFamC1F 859
File number(s): BRC 12055 of 2021 Judgment of: CAREW J Date of judgment: 11 October 2023 Catchwords: FAMILY LAW – CHILDREN – Where the parties provided a minute for a final parenting order resolving all issues in dispute on the second day of trial – Where an Order is made in terms of the minute provided. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 64B, 65D Number of paragraphs: 11 Date of hearing: 10 -11 October 2023 Place: Brisbane For the applicant: Ms Burns, solicitor, appearing as solicitor advocate Solicitor for the applicant: JR Burns Law Counsel for the respondent: Mr Todman Solicitor for the respondent: Armfield O’Brien Law Counsel for the independent children’s lawyer: Ms Shepherd Solicitor for the independent children’s lawyer: Berck Solicitors ORDER
BRC 12055 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HOOVER
Applicant
AND: MS FRIEDMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
11 OCTOBER 2023
THE COURT ORDERS THAT:
1.That all previous parenting orders in this proceeding be discharged, save for paragraph 2 of the Order made 13 December 2018 which states:
(a)That the father have sole parental responsibility for decisions concerning the major long-term issues for the children, X born 2009 and Y born 2011 (“the children”) and in the exercise of sole parental responsibility the father:
(i)Notify the mother in writing prior to making such decisions;
(ii)Invite the mother to indicate her views in writing about such decisions;
(iii)Take the mother’s views into account; and
(iv)Inform the mother in writing of the final decision.
Care Arrangements
2.That the child, Y born 2011 (“the child”) live with the father.
3.The mother spend time with the child supervised by B Contact Centre (“the Contact Centre”) at a frequency no greater than once per fortnight, for a period not less than 2 hours and no more than 8 hours and that each party:
(a)Contact the Contact Centre and undertake an appointment for assessment for suitability for supervised contact within forty-five (45) days;
(b)Attend for the assessment at the times and places appointed by the Contact Centre;
(c)Attend with any appointments made by the Contact Centre for supervised contact;
(d)Ensure that the child attends any appointments made by the Contact Centre for supervised contact;
(e)Comply with all reasonable rules of the Contact Centre; and
(f)Comply with all reasonable requests or directions of the staff of the Contact Centre.
4.That in the event that the Contact Centre is unable to facilitate the time to be spent under paragraph 3, the mother nominate an alternative contact centre which can accommodate the time proposed in paragraph 3 and the parties will contact the Contact Centre and undertake an appointment for assessment for suitability for supervised contact within forty-five (45) days of the mother nominating a new Contact Centre. The parties will comply with all reasonable requests or directions by the Contact Centre to enable the contact to occur.
5.That any time to be spent by the mother with the child, or her communication including video calls with the child cease, upon any one of the following events occurring:
(a)Upon the mother failing to complete all intake documents and her intake interview with B Contact Centre (or the alternative contact centre referred to in paragraph 4 herein) within forty-five (45) days of this Order; or
(b)Upon the mother missing three (3) supervised visits with the child:
(i)Save for if the reason for missing the visit is because either the mother or her other children, C or D, is hospitalised with the mother to provide documentary evidence from the hospital confirming the admission; or
(ii)Save for the mother providing the father with no less than 60 days’ notice of her intention to travel for a family holiday with her other children;
(c)Contact Centre staff observing and reporting by email to the parties that the mother has spoken to Y about any of the following:
(i)Any allegation of physical harm to Y or X which has been previously reported to the Department of Child Safety, Seniors and Disability Services (“the Department of Child Safety”);
(ii)Asking Y as to whether the father or his partner, Ms E has caused Y physical harm since the making of this Order; or
(iii)Discussing with Y any matters canvassed in any family court proceedings between the parties or any Magistrate Court proceedings between the parties.
(d)The father observing the mother speaking to Y during video calls about any of the following:
(i)Any allegation of physical harm to Y or X which has been previously reported to the Department of Child Safety;
(ii)Make any enquiry of Y as to whether the father or his partner, Ms E has caused Y physical harm since the making of this Order; or
(iii)Discuss with Y any matters canvassed in any family court proceedings between the parties or any Magistrate Court proceedings between the parties.
6.The time in paragraph 3 shall continue during school holiday periods, save for any holiday blocks that the father takes the child away for travel.
7.The mother’s time in accordance with paragraph 3 is to be supervised by staff nominated by the Manager of the Contact Centre and the Mother pay the reasonable fees for the supervision on each occasion of supervision.
8.That for the purpose of paragraph 3, the father deliver the child to, and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity, unless requested to remain by a staff member of the Contact Centre.
Extra-Curricular Activities
9.That in the event the child is enrolled in an extra-curricular sport or other activity, the child’s time with the mother shall occur outside of the hours he is to participate in the said sport/activity.
10.That for the purpose of paragraph 9, the parties agree that extra-curricular activity includes:
(a)Team sports;
(b)Any other sport in which Y expresses an interest in enrolling;
(c)Any other activity organised through a club or a school that requires after-hours involvement by Y.
11.That for the purpose of paragraph 9:
(a)Within 48 hours of an enrolment occurring, the father shall notify the mother of the enrolment and send her the name of the activity and details of the activity-provider; and
(b)This Order acts as an authority to any extra-curricular activity provider to Y, to provide the mother with any information she requests.
Communication between the Mother and Y
12.The mother shall be permitted to communicate with the child by video call on the following special occasions:
(a)The child’s birthday;
(b)The mother’s birthday;
(c)Christmas Day; and
(d)Mother’s Day.
13.For the purposes of such communication, the father shall inform the mother no less than 48 hours in advance of what time the video call is to occur, with the father to initiate the call and the father to take reasonable account of the mother’s advised availability.
14.The video calls shall continue for a period no greater than thirty (30) minutes on each occasion.
15.The video calls shall be supervised by the father at all times.
Time between X and Y
16.That the father facilitate time between Y and X and supervise all such time, save for in the event the children indicate a preference not to be supervised by the father and on those occasions, the father arrange for an alternative supervisor which may include the option of an offsite supervisor through the Contact Centre.
Injunction
17.That pursuant to section 68B of the Family Law Act 1975, the mother is restrained by injunction from:
(a)Attending at any school that the child attends, the child’s residence, or approaching the child at any other place; and
(b)Having any telephone, digital or electronic communication with the child except in accordance with this Order.
Communication Between the Parents
18.That the parties shall communicate with each other in relation to the child via email except in the event of an emergency, defined as a life-threatening illness or injury to the child, in which case the parents shall communicate via text message.
Miscellaneous
19.That in the event a Passport is to be issued or renewed for either of the children, the following shall apply:
(a)Pursuant to s 11(1)(b) of the Australian Passports Act 2005 the child is permitted to have an Australian Travel Document (including an Australian Passport); and
(b)The father shall provide to the mother a completed Passport Application for one or both of the children, as required.
(c)The mother shall sign and return the Passport Application/s within a further seven (7) days;
(d)The father shall bear the costs in relation to the issue or renewal of the Passport/s;
(e)In the event the mother fails to sign the Application/s within seven (7) days, the mother’s signature is dispensed with pursuant to s 11 of the Australian Passports Act 2005;
(f)The father shall hold both children’s Passports.
20.That the parents, their agents and/or servants be and are hereby restrained from:
(a)Denigrating, belittling, abusing, intimidating or harassing the other parent or members of their respect families to and/or within the hearing of the child;
(b)Discussing these proceedings, proposed future parenting arrangements, or any documents prepared in relation to these proceedings, to and/or within the hearing of the child;
(c)Knowingly permitting the child to have access to any document prepared in relation to these proceedings or any previous proceedings in this Court or the Magistrates Court.
21.This Order is an authority for both parents to obtain from the children’s school, copies of all school reports, school photographs and any other document regarding the academic progress or achievements of the children and notification of events such as parent/teacher events, sports days and concerts at the requesting parent’s expense.
22.This Order is an authority for both parents to obtain information from any treating medical practitioner, hospital and/or health care professional concerning the health of the children, and by this Order, the practitioner/s is/are authorised to provide both parents with the information that they are lawfully able to provide about the children upon each parent’s request.
23.Within 7 days of making of this Order the father will advise the mother by email of names of any treating medical practitioner, hospital and/or health care professional concerning the health of the children. If the children change treating medical practitioner, hospital and/or health care professional concerning the health of the children the father will notify the mother within 48 hours of said change.
Travel
24.That in the event the father intends to travel with the child, then he shall be at liberty to suspend the mother’s time with the child for a period of no greater than four (4) supervised visits provided he gives the mother no less than sixty (60) days’ notice in writing.
25.For the purpose of paragraph 24 herein, upon the mother receiving notice of the Father’s intention to travel with the child:
(a)Within 7 days, the mother liaise with B Contact Centre to determine any dates for make up time to occur to reflect the number of visits that the child will miss during the holiday period; and thereafter
(b)Within 14 days’ the mother inform the father of her preferred dates for make-up time with the child.
26.The father will provide make-up time to the mother following any holiday period with the father, and for the purposes of make-up time the following shall apply:
(a)Subject to the availability of the Contact Centre, the parties shall arrange for the make-up time to occur within 60 days of the child’s return from travel;
(b)The make-up time shall be equal to the number of visits missed during the period of travel; and
(c)To facilitate the provision of make-up time the parties agree that the child’s time with the mother may occur at a frequency of more than once per fortnight.
27.That for the purpose of paragraph 24 herein, the parties agree that the father’s travel time shall not occur during the child’s school term, save for up to three (3) days’ either side of the holiday period or the father will inform the school of the travel plans and obtain approval from the school.
Explanation of this Order to the children
28.That within 7 days of the date of this Order, the father liaise with Mr F to arrange for him to meet with Y and X for Mr F to explain this Order to the children.
29.The parties accept that for the purpose of paragraph 28 herein, X may decline to attend or communicate with Mr F.
30.That for the purpose of paragraph 28 herein, the parties share equally in Mr F’s costs.
31.That the father take all reasonable steps to arrange counselling for Y and follow all reasonable advices by any counsellor engaged.
Other
32.That the father supply a copy of this Order to Mr F.
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).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J:
The parties in this parenting dispute are Mr Hoover (“the father”) and Ms Friedman (“the mother”). This is the third so called final parenting trial these parties have been involved in. They separated nearly ten years ago yet the conflict continues. The unfortunate focus for this long running war are their two children, X, aged 14, and Y, aged 11. X has chosen to live with former neighbours of the father, Mr G and Ms G, rather than live with either parent. Y lives with his father and has not seen his mother for nearly a year.
In May 2023, I set this matter down a trial for four days. Yesterday was the first day of the trial and the parties spent the day negotiating a final order with the assistance of the independent children’s lawyer (“ICL”). At the end of the day, the parties had agreed on most issues and agreed that the matter should proceed on the papers with each making submissions about the issues that remained in dispute. During that process it became clear that the existing minute of proposed order signed by the parties required amendment and that further agreement was likely on matters thought to be still in dispute. The matter was stood over to today when the parties submitted a new minute for a final parenting order resolving all issues.
APPLICABLE PRINCIPLES
Despite the parties reaching agreement, every parenting order is determined having regard to the relevant parts of Part VII of the Family Law Act 1975 (Cth) (“the Act”), which sets out the objects, principles and matters to be considered when determining what parenting order is proper within the meaning of s 65D of the Act. Having said that, if an order is to be made by consent the Court is not required to have regard to all or indeed any of the mattes set out in ss 60CC(2) or (3).
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(a)The time a child is to spend with another person or other persons;
(b)The allocation of parental responsibility; and
(c)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of a child are determined by reference to s 60CC which sets out the primary considerations: namely, the benefit to a child of having a meaningful relationship with both parents and the need to protect a child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by a child, the nature of the relationship between a child and each parent and other persons, the past involvement of each parent with a child, the likely effect of any changes in a child’s circumstances, the practical difficulty and expense of a child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of a child, any family violence involving a child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, and any other fact or circumstance considered relevant.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order. There are no protection orders in place as between these parties and there is no suggestion that that the order, as proposed by the parties, will expose a person to an unacceptable risk of family violence.
DISPOSITION
The agreement reached between the parents, with the support of the ICL, will see a continuation of the father’s sole parental responsibility for both children and for Y to continue to live with him. No orders are now sought for X, but the father will continue to have sole parental responsibility for major long terms issues that affect X. It seems the father has made such decisions when required despite the poor relationship between him and X, and Mr G and Ms G.
Y will have the benefit of spending time with his mother on a regular basis and that can only be a good thing for him and in accordance with his wishes.
One can only hope that this finally ends the conflict between the parents in relation to their children and that they can put the past behind them and concentrate on being better parents to their children in the future. In a divided family a sibling relationship can be even more important than in an intact family, and I would encourage the father to be proactive in ensuring the boys see each other as frequently as possible.
Overall, I am satisfied that the proposed order is proper, and I make the order in the terms of the minute signed by the parents and the ICL.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex-tempore Reasons for Judgment of the Honourable Justice Carew.
Associate:
Dated: 11 October 2023
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