Jepsen & Marcell (No 2)
[2024] FedCFamC2F 1357
•27 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jepsen & Marcell (No 2) [2024] FedCFamC2F 1357
File number(s): BRC 9904 of 2023 Judgment of: JUDGE STREET Date of judgment: 27 September 2024 Catchwords: FAMILY LAW – PARENTING – supervised time – alternate weekends Legislation: Family Law Act 1975 (Cth) Cases cited: Kapoor & Kapoor [2024] FedCFamC2F 605 Division: Division 2 Family Law Number of paragraphs: 12 Date of hearing: 27 September 2024 Place: Sydney Solicitor for the Applicant: Ms A Porras of Agp Lawyers Solicitor for the Respondent: Ms J Ebser of Stolar Law Pty Ltd Solicitor for the Independent Children's Lawyer: Ms T Geysen of Tlg Law ORDERS
BRC 9940 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR JEPSEN
Applicant
AND: MS MARCELL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
27 SEPTEMBER 2024
THE COURT ORDERS THAT:
Parenting Order
1.Order 3 made on 29 August 2023 is varied to read as follows “The child spend supervised time with the father commencing this Sunday and alternating the following weekend on Saturday and then on the same cycle between 9:00am and 3:00pm with the supervisor being [Ms B]”.
Trial Orders
2.The matter is fixed for final parenting hearing commencing at 10:00am on 1 May 2025 continuing on till 2 May 2025 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court Australia Act 2021 (Cth).
3.The applicant is directed to file and serve a consolidated trial affidavit and any further affidavit evidence that the applicant wishes to rely on, on or before 1 March 2025.
4.The respondent is directed to file and serve a consolidated trial affidavit any affidavit evidence that the respondent wishes to rely on or before 29 March 2025.
5.The applicant is directed to file and serve a case outline including a chronology and a list of objections on or before 5 April 2025.
6.The respondent is directed to file and serve a case outline including a chronology and a list of objections on or before 12 April 2025.
7.The ICL is directed to file and serve a case outline including a chronology and a list of objections on or before 24 April 2024.
8.Leave is granted to the parties, including the ICL, to issue more than five (5) subpoenas.
9.Leave is granted to the parties, including the ICL, to have photocopying access to the material produced under subpoena, subject to any proper notice of objection.
10.Leave is granted to the parties, including the ICL to provide any tender bundle via email or USB seven (7) days prior the hearing.
11.Leave is granted to the parties, including the ICL, to provide consent orders to be made in chambers, if appropriate.
12.Pursuant to s 102NA of the Family Law Act 1975 (Cth) if either party becomes unrepresented, neither party can cross examine the other.
THE COURT NOTES THAT:
A.The parties are entitled to Legal Aid representation from Commonwealth funding in respect of cross examination.
B.If either party become unrepresented the final hearing may proceed unless the Court otherwise determines.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These are parenting proceedings that were commenced on 30 July 2023 in relation to the child, X, born in 2016, shortly about to turn eight.
The matter came before the Court this morning for directions for the purpose of fixing it for hearing. There are existing orders in place made on 29 August 2023 that have provided for supervised time between the child and the applicant father (“the father”) every Sunday between 10 am and 12 pm. In the course of fixing the matter for a final hearing, the father's representative identified that given the hearing date will not be until May 2025, the father was keen to try and ensure an increase in time.
There is a child expert report of 11 March 2014 by Ms C, and in it, it contains recommendations, relevantly, in paragraph 132 and 133 which are as follows:
132. Although I do not have the benefit of health records, I am willing at this stage to recommend visits every second weekend from Saturday morning to Sunday afternoon.
133. I recommend this on condition that the support worker or [Mr E] spends some transition time with [Mr Jepsen] and [X] both at the beginning and end of visits to ensure that all is happening smoothly.
Ms Porras, on behalf of the father, asked for the time to be increased by two hours. The Court was informed by Ms Ebser, on behalf of the respondent mother (“the mother”), that she would agree to alternate weekends of six hours, either between 8 am and 2 pm, or between 9 am and 3 pm. The Court raised with the ICL whether a Sunday alternate 9 am to 3 pm and then the following Saturday 9 am to 3 pm, would be supported by the ICL on the assumption that the supervisor can attend. The ICL indicated that the ICL supported that proposal.
The Court has taken into account the objects in s 60B of pt 7 of the Family Law Act 1975 (Cth) (“the Act”), the principles in s 69ZN of the Act and in Kapoor & Kapoor [2024] FedCFamC2F 605. The paramount consideration of the best interests of the child and, in particular, the importance of the safety of the child, emphasised in the mandatory considerations in respect of best interests.
The identification by the mother of a willingness to permit a six-hour period, albeit on alternate weekends, identifies that there is no real safety issue in respect of the child, if the supervisor is present and no other issue of safety has been suggested by the ICL, provided that the supervisor is able to attend.
The ICL identified that it was in the child's best interest to be spending more time with the father, given his age of almost 8. It is apparent that increasing the father's time is in the child's best interests, provided it can be done safely. The supervisor has been willing to cooperate with ensuring the increase of meaningful time, and the ICL supported the increase on alternate Sundays and Saturdays, from 9 am to 3 pm, provided the supervisor is able to attend.
Ms Ebser identified that the mother objected to an increase in time beyond the proposal of six hours every alternate weekend and identified that the mother has been taking steps to independently agree to additional time with the father. The Court heartily congratulates the parties in relation to agreeing to additional time. It is very much in the best interests of the child that they do so. In particular, coming up is the child's birthday, and the Court would expect that the parties would agree to arrangements that ensure that the child spends at least three hours, if the supervisor is available, with his father, and, likewise, on Christmas Day, to spend at least three hours with his father, if the supervisor is available.
The Court does not propose to make orders about those special occasions, given the position indicated that the mother has been cooperating by agreeing with the father upon additional time. The failure to agree in relation to additional time in respect to the special occasions would be a relevant consideration to be taken into account at the final hearing. It is for that reason the Court does not propose at this stage to make actual orders in that regard but expects the parties to reach an agreement in relation to that additional time, particularly given the Court has been informed of the level of cooperation that has occurred in terms of the mother agreeing to additional time.
The Court is satisfied that it is in the best interests of the child to increase the time between the father and the child, provided the supervisor, Ms B, is able to attend to a period of 9 am to 3 pm on the first Sunday, being this weekend, and then the next weekend 9 am to 3 pm on Saturday, and continuing alternate cycle thereafter.
The supervisor has been keeping a relevant record in relation to the time spent under the orders that were earlier made on 29 August 2023, and the Court is satisfied that the proposed increase in time is not one that exposes the child to any unacceptable risk. The Court is also satisfied that the increased time is in the best interests for the emotional, psychological and intellectual development of the child by being able to spend additional time with his father, albeit the subject of supervision.
It is for these reasons the Court makes the above orders.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 2 October 2024
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