Janney & Cobbe
[2023] FedCFamC1F 495
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Janney & Cobbe [2023] FedCFamC1F 495
File number(s): BRC 11035 of 2018 Judgment of: HOWARD J Date of judgment: 30 May 2023 Catchwords: FAMILY LAW – PARENTING – Where the parents have agreed to a minute of order – Where there are limited remaining issues in dispute – Consideration of best interests of the children. Legislation: Family Law Act 1975 (Cth) s 60CC Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 30 May 2023 Place: Brisbane Counsel for the Applicant: Mr Todman Solicitor for the Applicant: Queensland Legal Practice Counsel for the Respondent: Mr Larsen Solicitor for the Respondent: Gary Rolfe Solicitors Counsel for the Independent Children’s Lawyer: Mr McGregor Solicitor for the Independent Children’s Lawyer: Wallace Perkins Family Law ORDERS
BRC 11035 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JANNEY
Applicant
AND: MR COBBE
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
HOWARD J
DATE OF ORDER:
30 MAY 2023
THE COURT ORDERS THAT:
NOTATION:
A.The Court notes that the below Orders were made by consent, with the exception of the following Orders: 4(a)(i), 4(a)(iii), 4(b)(i)(b), 15(b), 15(i) and 23.
THE COURT ORDERS ON A FINAL BASIS:
Parental responsibility
1.That the Father, MR COBBE (hereinafter referred to as the "Father'') and Mother, MS JANNEY (hereinafter referred to as the “Mother”) have equal shared parental responsibility for the children for all major long term issues concerning the children, X (DOB 2017) and Y (DOB 2018) (hereinafter collectively referred to as "the children"), save for any major long term issues concerning the health of the children, dealt with in the following paragraph.
2.That the Father have sole parental responsibility for making decisions in relation to any major long-term issues concerning the health of the children, subject to the following:
(a)That unless there is a medical emergency which requires an immediate decision to be made, prior to making any decision, the Father will communicate with the Mother in writing as to the decision to be made and provide any related information or recommendations obtained from treating medical practitioners;
(b)Within seven (7) days of receiving the Father's written communication, the Mother will respond to the father in writing, providing her views and input which the Father will genuinely consider; and
(c)The Father will make the decision and provide the Mother advice in writing of the decision and the reasoning behind his decision;
3.Notwithstanding the provisions of the above Orders:
(a)The Father shall be responsible for the day to day care, welfare and development of the children at all times when the children are living with or spending time with him; and
(b)The Mother shall be responsible for the day to day care, welfare and development of the children at all times when the children are living with or spending time with her.
Live With/Time With
4.That the children shall live with the Father and spend time with the Mother as agreed, but failing agreement, as follows:
(a)Supervised Time
(i)The children shall spend supervised time with the Mother for a period of up to four (4) hours per week at a Contact Centre within 35 kilometres of where the child usually resides as nominated by the Father in writing to the Mother.
(ii)That within seven (7) days of these Orders, the Mother and Father shall each contact the Contact Centre for the purposes of arranging intake appointments and shall thereafter comply with any appointments made by the Contact Centre for supervised time.
(iii)That the Mother and Father are to equally share in all costs associated with the Mother spending supervised time with the children.
(b)Unsupervised Time
(i)That upon the Mother providing two (2) consecutive Hair Follicle Tests in a six month period producing results free of illicit drug consumption, then the children shall spend unsupervised time with the Mother:
A.Each Sunday from 11.30am to 3.30pm.
B.Each Wednesday from 3pm to 5pm.
(ii)That pending the Mother providing four (4) consecutive Hair Follicle Tests in a twelve-month period producing results free of illicit drug consumption, the parties will thereafter attend upon Family Dispute Resolution as detailed in Order 16 hereof.
4A.That during the time that the children spend with the Mother in accordance with Order 4, the Mother shall not bring the children into contact with Mr B, nor shall the Mother bring the children into contact with any member of Mr B’s family.
5.That if the Mother's time with the children has progressed to unsupervised time and the Mother provides a Hair Follicle Test and/or urinalysis drug test producing results evidencing illicit drug consumption, the Mother's time with the child shall immediately revert to supervised time as stipulated in Order 4(a) herein.
6.That the Mother's time arrangements as stipulated in Order 4 herein shall continue to apply throughout all Queensland gazetted school holiday periods.
7.That should the Father wish to spend a block period of holiday time with the children of up to two (2) weeks during the Queensland gazetted school holiday periods, the Father is at liberty to do so upon the giving of one (1) month's notice in writing to the Mother. During such time, the Mother's time as per Order 4 shall otherwise be suspended.
Special Occasions
8.That the children will spend time with the Mother on special occasions at all times as agreed, but failing agreement, as follows:
Supervised time
(a)Where the Mother's time with the children remains supervised as stipulated in Order 4(a) herein, that the Mother spend supervised time with the children for a period of up to four (4) hours, with time not to run consecutively with the time set out in Order 4(a) herein, on the following special occasions:
(i)The Mother's birthday;
(ii)Each of the children's birthdays (should their respective birthdays fall on a weekend);
(iii)Mother's Day.
Unsupervised time
(b)Where the Mother's time with the children has progressed to unsupervised time as stipulated in Order 4(b) herein, the Mother and Father shall spend unsupervised time with the children at all times as agreed, but failing agreement, as follows:
For Christmas
(i)That in odd-numbered years the children spend time with the Mother from 9:00am Christmas Day until 1:00pm Christmas Day and with the Father from 1:00pm Christmas Day until 5:00pm on Christmas Day.
(ii)That in even-numbered years the children spend time with the Father from 9:00am Christmas Day until 1:00pm Christmas Day and with the Mother from 1:00pm Christmas Day until 5:00pm on Christmas Day.
For Easter:
(iii)That in odd numbered years the children spend time with the Mother from 9.00am Easter Sunday until 1:00pm Easter Sunday and with the Father from 1:00pm Easter Sunday until 5:00pm Easter Sunday.
(iv)That in even numbered years the children spend time with the Father from 9:00am Easter Sunday until 1:00pm Easter Sunday and with the Mother from 1:00pm Easter Sunday until 5:00pm Easter Sunday.
For Mother’s Day:
(v)The children shall spend time with the Mother from 9.00am until 1:00pm on Mother's Day.
For the child’s birthday:
(vi)If a non-school day and the child is not ordinarily spending time with the Mother in accordance with these Orders, the child shall spend four (4) hours with the Mother as agreed.
(vii)If a school day and the child is not ordinarily spending time with the Mother in accordance with these Orders, the child shall spend time with the Mother from after-school until 6:30pm.
Changeovers
9.That in the event that time arrangements remain as supervised time as stipulated in Order 4(a) herein, the Father shall be responsible for transporting the children to and from the nominated Contact Centre to spend supervised time with the Mother.
10.That in the event that time arrangements have progressed to unsupervised time as stipulated in Order 4(b) herein, changeovers shall occur at the entrance to C School, D Street, Suburb E, QLD, unless otherwise agreed in writing.
11.That the parent whose time is completing shall be responsible for ensuring the children's attendance at the changeover location, and the parent whose time is commencing shall be responsible for collecting the children from the changeover location.
12.That each parent is to ensure their punctuality in attending the changeover location and notify the other parent as soon as practicable via text message if there is to be a delay of more than ten (10) minutes.
Communication
13.That the children be at liberty to communicate with the Mother by telephone as agreed, and failing agreement, as follows:
(a)Once per week at 4:00pm on a week-day to be nominated by the Mother in writing to the Father;
(b)That if the children express a wish to communicate with the Mother or Father when in the other parent's care, that the parent spending time with the children do all such things and acts to facilitate this request where practicable;
(c)That the children be afforded the necessary privacy during their communication with either parent.
14.That in addition to Order 12, in the event that time arrangements remain as supervised time as stipulated in Order 4(a) herein, that the Mother be at liberty to communicate with the children via video call on each of the following occasions each year:
(a)Christmas Day;
(b)Easter Sunday;
(c)Each of the children's birthdays;
(d)The Mother's birthday;
(e)Mother's Day.
Drug Testing
15.For the purposes of Order 4 of these Orders, the following shall apply:
(a)The Respondent Mother is to pay for all costs associated with Hair Follicle Testing;
(b)The Respondent Mother is required to maintain her head hair at a length of not less than three (3) centimetres;
(c)The Respondent Mother is restrained from bleaching her head hair from the date of these Orders for a period of two (2) years;
(d)The Hair Follicle Test is to cover the use of all illicit substances, including but not limited to methamphetamines and amphetamines, cannabis, opiates (including heroin and morphine), sedative-type drugs and cocaine;
(e)The tests be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia in accordance with the current Australian Standard for the collection and detection of drug abuse;
(f)That the Respondent Mother is to provide the medical practitioner/pathologist with photographic identification, to be recorded before each test, and the authority to provide the results of each test to the Applicants immediately upon becoming available;
(g)Chain of custody procedure is to be applied to the sample;
(h)The Mother is to otherwise provide the results of the Hair Follicle Testing to the Father within forty-eight, (48) hours of receipt;
(i)The Mother will provide hair samples for testing as directed by the testing laboratory.
15A.That pursuant to s 121 of the Family Law Act 1975, leave is granted to the Mother to show a copy of Order 15 to the testing clinician on each occasion that the Mother goes for drug testing.
16.In the event where the Mother’s time with the child has progressed to unsupervised time as per these Orders, the Father and Mother shall be at liberty to call for the other parent to undertake random urinalysis drug testing, and for such purpose, that the following shall apply:
(a)Such test shall not be called more than once in each three (3) month period;
(b)The Mother and Father are to equally share in all costs associated with the urinalysis drug testing;
(c)The party of which a request is made is required to submit to a urinalysis drug test within forty-eight (48) hours of receiving a request via text message or otherwise in writing from the Father or Mother;
(d)The testing party is to provide the medical practitioner/pathologist with photographic identification, to be recorded before each test, and the authority to provide the results of each test to the Father immediately upon becoming available;
(e)Chain of custody procedure is to be applied to the sample;
(f)That the party who is tested is otherwise to provide the results of the urinalysis drug testing to the other within forty-eight (48) hours of receipt.
Family Dispute Resolution
17.That pending the Mother providing four (4) consecutive Hair Follicle Tests in a 12 month period producing results free of illicit drug consumption, the parties will thereafter attend upon Family Dispute Resolution with a view to determining the child's time progressing with the Mother.
18.For the purposes of these Orders, the parties are to equally share in all costs associated with attending upon Family Dispute Resolution.
Counselling
19.That within fourteen (14) days of these Orders, the Mother shall engage a Counsellor or Psychologist for the purpose of attending drug counselling to assist with her development of relapse prevention and management strategies, including that of adaptive coping mechanisms.
20.That within fourteen (14) days of these Orders, the Mother shall engage a Counsellor or Psychologist for the purpose of addressing her experience of domestic and family violence and supporting her wellbeing moving forward.
21.That the Mother attend upon her treating Counsellors/Psychologists as directed and no less than one (1) appointment per fortnight for a period of six (6) months.
22.That for the purpose of Order 19 and 20 herein, leave be granted for a copy of the Family Reports of Mr F and a copy of these Orders to be provided to the Mother's Counsellors/Psychologists
22A.That should the Mother seek to re-open these proceedings no less than one (1) year from the date of these Orders, the Mother will be required to rely upon consecutive drug tests evidencing abstinence from illicit substance use and attendance upon drug counselling and domestic violence counselling for a minimum period of 12 months at such times and frequencies directed by her counsellor.
23.That within 14 days of the date of these Orders, the Father shall undertake all such acts and things necessary to facilitate the children's ongoing attendance upon a Psychologist so as to obtain therapy and support and for the purpose of this order, leave is granted pursuant to section 121 of the Family Law Act 1975, for copies of the Reports of Mr F to otherwise be disclosed.
24.That within 14 days of the date of this Order, the Father shall ensure, if he has not already done so, that he is engaged in a Circle of Security course and shall thereafter provide the Mother with a Certificate of completion within 12 months.
Travel
25.Pursuant to section 11(1)(a) of the Australian Passports Act 2005, the children are permitted to have or be issued with an Australian travel document.
26.Pursuant to section 11(1)(b)(ii) of the Australian Passports Act 2005 and this Order, the children are permitted to travel outside the Commonwealth of Australia using an Australian travel document.
27.That upon issue, the Father will retain the children's passports.
28.The parties will do all acts and things and sign all documents necessary, within seven (7) days of a written request received from the other parent, to make an application to the Australia Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005) to enable the children to be issued (and if requested, re-issued) with an Australian travel document, with the requesting party to be responsible for the costs of the issue/re-issue of the children's passports .
29.If either party refuses or neglects to sign any document necessary to issue the children with an Australian travel document being issued, such refusal will constitute sufficient special circumstances for a party to seek that the Minister administering the Australian Passports Act 2005 give consideration to issuing an Australian travel document pursuant to section 11 (2)(a) of the Australian Passports Act 2005.
30.That unless otherwise agreed to in writing between the parents, the Father is at liberty to remove the children from the Commonwealth of Australia for the purpose of an overseas holiday with the children provided that:
(a)That if the travel occurs during time that the Mother is scheduled to spend time with the children in accordance with these Orders, that the Father will thereafter upon returning to Australia arrange for the Mother to spend make-up time with the children;
(b)The travelling parent gives six (6) weeks written notice to the other parent of their intention to travel overseas with the children;
(c)The travelling parent does not take the children to a country where the Australian travel advice on srnarttraveller.gov.au (or any other government website that replaces smarttraveller.gov.au) is 'Level 4 - Do not travel' or 'Level 3 - Reconsider your need to travel' (or any similar levels of travel warning if smarttraveller.gov.au is replaced); and
(d)At least 4 weeks prior to departure, the travelling parent provides the other parent the following:
(i)a general itinerary setting out the travel arrangements for the parent and the children which must include details of the intended destination/s, accommodation, departure and return dates;
(ii)copies of the pre-paid return tickets for travel or other evidence of the pre-paid tickets;
(iii)copy of the children's travel insurance; and
(iv)telephone numbers on which the child may be contacted during the period the children will be overseas.
Injunctions
31.That the Father be restrained from relocating more than 25km from the children's school, being C School, without agreement in writing from the Mother.
32.That the parents are hereby restrained from using illicit substances or being under the influence of illicit substances whilst the children are in their care and are hereby restrained and injuncted form consuming same, 48 hours prior to spending time with the children.
33.That the parents are hereby restrained from the following:
(a)Denigrating the other or family members in the presence or hearing of the child, and will use their best endeavours to ensure others do not denigrate the other or that party’s family in the presence or hearing of the child and shall remove the child from the presence of any such person/s who are doing so; and
(b)Discussing family law matters or issues of adult conflict to or within the hearing of the child, and will use their best endeavours to ensure other persons do not do so.
Provision of Information
34.That the parents shall otherwise keep the other party informed at all times of their mobile phone numbers and residential addresses and advise of any changes thereto within forty-eight (48) hours of such change.
35.That the Father shall inform the Mother within forty-eight (48) hours and otherwise keep the Father informed at all times of the school and before/after-school care facility the children attend and advise of any changes thereto within forty-eight (48) hours of such change.
36.That the Father shall inform the Mother within forty-eight (48) hours and otherwise keep the Father informed at all times of the names and addresses of any treating medical or other health practitioner who treats the children
37.The parties shall inform the other parent as soon as reasonably practicable or within 24 hours of any medical condition, significant health issue or illness suffered by the children, save in the case of an emergency or serious accident or illness when notice will be given as soon as possible or within two (2) hours by telephone call, or if the telephone call is not answered, by text message to the other party.
38.That in the event the children are prescribed medication or a particular form of treatment which is required to continue into a period when the other parent will be caring for the child, any medication or materials required for treatment shall be sent with the children along with a description of the condition for which it is required and the appropriate dosage or method of treatment.
39.Pursuant to section 121 of the Family Law Act 1975 (as amended), leave is granted to the parties and their legal representatives to provide a copy of the orders to:
(a)any school, education institution or care provider attended/consulted by the child;
(b)any treating medical practitioner, hospital or health care professional attended/consulted by the child
(c)the drug testing laboratory;
(d)the Child Support Agency.
Authorities
40.Both parties are entitled to attend any school or extracurricular activity to which parents are usually invited, including but not limited to parent assemblies, excursions, concerts and sports days, save for the Mother is restrained and injuncted from any such attendance should her time with the children be supervised pursuant to these orders.
41.This Order is an authority for both parents to obtain from the child'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.
42.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.
Discharge of ICL
43.That the Independent Children’s Lawyer be discharged.
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 the pseudonym Janney & Cobbe has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOWARD J:
A. These reasons were delivered ex tempore on 30 May 2023 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matter before the Court involves two children: X, born 2017, and Y, born 2018. They are the children of the applicant mother, Ms Janney, and the respondent father, Mr Cobbe. The mother was born in 1985 and the father was born 1980. The parties commenced cohabitation in about late 2013. The parties separated on a final basis some time in 2018.
Proceedings were commenced in the Family Law jurisdiction on 25 September 2018. In October of 2018, an order was made for the children to live with the father at the residence of the paternal grandmother and spend supervised time with the mother.
There have been a number of Family Reports prepared by Mr F in this case. The latest family report is annexed to an affidavit filed on 24 May 2023. Various risk issues have been identified in the evidence, including, especially in relation to the mother, the use of illicit drugs.
The parties came along this morning to commence a three-day parenting trial. To their credit, they have agreed on a large number of issues, but some matters remain in dispute. The first matter that remains in dispute relates to proposed paragraph 4(b)(i)(b). The father is opposed to the inclusion of 4(b)(i)(b). The text of that subparagraph is contained in exhibit 1, which is the draft order. The proposed subparagraph reads:
“4.That the children shall live with the Father and spend time with the Mother as agreed, but failing agreement, as follows:
…
b. Unsupervised time
i.That upon the Mother providing two (2) consecutive Hair Follicle Tests in a six month period producing results free of illicit drug consumption, then the children shall spend unsupervised time with the Mother:
…
(b) Each Wednesday from 3pm to 5pm.”
The father, by his counsel Mr Larsen, drew my attention to the father’s affidavit, in particular, between paragraphs 151 and 256, and also, then, annexures that relate to those paragraphs. It is submitted that those paragraphs show a long history of unreliability on the part of the mother. I’m not certain whether or not any or all of those paragraphs are admitted by the mother. There was no cross-examination in the matter, because the parties, in essence, requested the Court to decide any remaining issues after hearing submissions only. So I’m not actually in a position to make any particular findings about those allegations.
However, what I would note is that there is, contained in exhibit 1 in the draft paragraph 4(b)(i), the following safety mechanism so far as the children are concerned, especially in relation to this question of unreliability. The unsupervised time will not even begin until the mother provides two consecutive hair follicle tests in a six month period producing results free of illicit drugs. Then the children are ordered to spend unsupervised time with the mother, firstly, each Sunday from 11.30am to 3.30pm. The mother and the ICL seek an additional period of time each Wednesday from 3pm till 5pm.
But, I must say, I do think that the wording in 4(b)(i) in the first three lines is a sufficient safeguard in the circumstances of this case. Even if I were to accept, for the sake of argument, that paragraphs 151 to 256 in the father’s trial affidavit, filed 9 May 2023, are absolutely accurate, the reality is that the drug testing regime that is going to be put in place and the preliminary provision that must be complied with by the mother before the time moves from supervised to unsupervised is, in my judgment, sufficient to ameliorate any risk to the children, and sufficient to ameliorate concerns on unreliability.
The very large inference that is available to me and which I draw is that, during those periods of time referred to in paragraphs 151 to 256 of the father’s affidavit, it seems clear enough that the mother was using illicit drugs. Now a situation has been put in place whereby this unsupervised time will not even commence until there have been two consecutive hair follicle tests in a six month period that produce results free of illicit drugs. My view is that it is in the best interests of the children to see their mother as often as possible. Two relatively brief occasions each week will, in my view, be beneficial to these children, noting some of the positive comments to which my attention was drawn by Mr Todman of counsel on behalf of the mother. Some of the positive comments appear in the most recent report of Mr F concerning the children and their mother.
4(b)(i)(b), as contained in exhibit 1, will remain in the final order.
The next matter in dispute was paragraph 15 concerning the drug testing. And the father was happy for paragraph 15 to stay as it is – provided there was another order which required or requires the mother to use any drug testing laboratory other than the drug testing laboratory situated at Suburb G which apparently has the name H Drug Testing Facility. The father maintained that particular laboratory is not reliable, however, there is no evidence to support the contention.
The proposed paragraph 15(e) says that the test be conducted at a laboratory accredited by the national association of testing authorities. In those circumstances, that is a sufficient safeguard in respect of this particular drug testing regime. In addition, I agree with the submissions made by Mr McGregor, counsel on behalf of the ICL, that paragraph 15(i) is sufficient when dealing with the length of hair that will be required for testing, and which site on the body the hair should come from. Paragraph 15(i) will read:
“The mother will provide hair samples for testing as directed by the testing laboratory.”
That is agreed to on behalf of the mother, and it is appropriate, in my view. For the reasons stated, I can see no problem with paragraph 15 as it is contained in exhibit 1. In exhibit 1, of course, it does have the handwritten subparagraph (i). At one stage, a submission was made that the clinician at the laboratory should be shown order 15. I am going to come back to that. I actually have no problem with that, but I do not know whether I heard from Mr Todman. I will come back to that. As to paragraphs 19 to 21, the father seeks an order that if those paragraphs, which relate to counselling for the mother, are not complied with, then the mother's time is to return to supervised time. The ICL does not support the making of that order, and the mother does not seek that order. If the mother does not comply with those counselling orders, there is going to be an issue, because I apprehend the father will bring the matter back to the Court, and it seems to me that a Court may well act in those circumstances.
But I do not see any need, at this stage, to make it a self-executing order in that regard for a number of reasons, including because – who is to determine whether 19 to 21 have been complied with? It is not a good situation, for instance, for the father to be in a position that he decides if 19 to 21 have been complied with. They are matters for the Court. So what I am saying is this, if it transpires that the father holds the view that paragraphs 19, 20 and 21, or one of them have not been complied with, then he will be perfectly entitled, of course, to bring this back to the Court by way of some form of application, whether it be for contravention or otherwise.
There is a proposed order 22A which was formally notation A. As it currently appears in exhibit 1, it reads:
“22A.That should the Mother seek to re-open these proceedings no less than one (1) year from the date of these Orders, the Mother will be required to rely upon consecutive drug tests evidencing abstinence from illicit substance use and attendance upon drug counselling and domestic violence counselling for a minimum period of 12 months at such times and frequencies directed by her counsellor.”
So that notation made with the consent of all parties, as I understand it, becomes Order 22A.
As to paragraph 23, I do think that there are benefits to the children in undertaking counselling within 14 days. That is, all it would require, it seems to me at this stage, is the father goes to his GP on Medicare, the father gets a mental health plan for the children through Medicare, and the children can see a psychologist and there ought not be any out of pocket expense if the father approaches the right psychologist. I can see no reason to delay such counselling. It seems to me the provision of the reports of Mr F to the counsellor is a good thing. Any extra support these children can receive is a good thing, and it is in their beat interests, so I cannot see any reason to delay it.
I read into the record earlier 4A, which both the mother and the father consent to, and the ICL has no issue with, and does not oppose it. For the record, again, 4A reads that:
“4A.During the time that the children spend with the mother in accordance with order 4, the mother shall not bring the children into contact with [Mr B] or any member of [Mr B’s] family.”
It should say:
“…and nor shall the mother bring the children into contact with any member of [Mr B’s] family.”
To make it clear there are two separate obligations on the mother there.
There is another issue that the father was not happy with – and that is paragraph 4(a)(iii). There are two issues with 4(a)(iii). Firstly, prior to lunch, when I went through the orders that were consented to, everyone consented to that order, and I pronounced the order. So it is in existence. But I would say this – whether it was argued at the time or whether it was consented to at the time, my view is it would not have made any difference. My view is that it is a better outcome if they do equally share in these costs. It will do a number of things. Firstly, they can both find out what is the cheapest one they can get to conveniently. Secondly, it will ensure both of them have a stake in the process. I note that the father stood up personally and made some oral submissions to the Court, and I have listened to what he had to say. I am aware, of course, it is not actually evidence, but he wanted to tell me and I let him tell me.
But the reality is that by these orders, these little children will slowly but surely, be building their relationship with their mother. Despite the difficulties the mother has had in the past, the evidence currently before me is still strong enough to suggest that there is a benefit to these children of having a meaningful relationship with their mother. Even if the order had not been agreed to, my view is that I would have ordered it anyway, because it is a better outcome if both parents share equally the costs of supervision. My very sincere hope is that the need for supervised time in the contact centre will cease in the not too distant future. That is the hope. In which case the parents will both be relieved of the payment.
It seems to me that the last thing this family needs is to be back in Court, squabbling over a number of kilometres between a house and a contact centre. Section 60CC(3)(l) requires the Court, when making a parenting order, to consider making an order that is least likely to lead to the institution of further proceedings. It seems to me that leaving a bit of leeway with paragraph 4(a)(i) is sensible and is in the best interests of the children if it is least likely to lead to the institution of further proceedings. In those circumstances, I will increase 4(a)(i) to 35 kilometres.
I have had close regard to all of the provisions in Part VII in the Act. It is not necessary for the Court to specifically refer to each of the subsections in s 60CC(3). I have taken all of the relevant provisions into account. In any event, the hearing today has been conducted, with the consent of the parties, in a circumscribed way. The orders that have been made are in the best interests of the children.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 9 June 2023
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