Klaasen & Klaasen
[2021] FedCFamC2F 182
•15 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Klaasen & Klaasen [2021] FedCFamC2F 182
File number(s): MLC 13450 of 2020 Judgment of: JUDGE BENDER Date of judgment: 15 September 2021 Catchwords: FAMILY LAW – PARENTING – the Father’s Interim Application for parenting orders regarding the parties’ two children – the Father has spent no time with the children since June 2021 – the Mother raises concerns with respect to the Father’s alcohol use and inability to control his anger in front of the children – the Mother seeks the Father’s time with the children be professionally supervised until further evidence can be placed before the Court – the Mother submits there is no appropriate family member to supervise time
HELD – Independent Children’s Lawyer appointed – children live with the Mother – children spend professionally supervised time with the Father
Legislation: Family Law Act 1975 (Cth), ss 60B, 60B(3), 60CC, 60CC(2), 60CC(3) Cases cited: AMS v AIF (1999) 199 CLR 160
U & U (2002) 211 CLR 238
Division: Division 2 Family Law Number of paragraphs: 17 Date of hearing: 15 September 2021 Place: Melbourne Counsel for the Applicant: Mr Staindl Solicitor for the Applicant: Clancy and Triado Counsel for the Respondent: The Respondent appeared in person ORDERS
MLC 13450 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KLAASEN
Applicant
AND: MS KLAASEN
Respondent
ORDER MADE BY:
JUDGE BENDER
DATE OF ORDER:
15 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The matter be adjourned to 3 November 2021 at 9:30am for interim defended hearing.
2.The parties file and serve any further affidavits they seek to rely upon in relation to interim parenting matters by 4:00pm on 27 October 2021.
3.Pursuant to s.68L(2) of the Family Law Act1975 (Cth), the children of the relationship X born in 2009 (“X”) and Y born in 2016 (“Y”) be independently represented and it is requested that Victoria Legal Aid arrange such independent representation and:
(a)forthwith upon appointment by Victoria Legal Aid or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service;
(b)within 48 hours of notification of such appointment the solicitors for the respective parties provide to the Independent Children’s Lawyer copies of all relevant documents relied upon;
(c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and
(d)the Independent Children’s Lawyer prepare a minute of the orders he/she will recommend be made as final orders.
4.The Independent Children’s Lawyer be granted leave to issue up to 10 subpoenas.
5.No party shall issue a subpoena to the Department of Families, Fairness and Housing without leave of the Court.
6.Pursuant to s.62G of the Family Law Act 1975 (Cth), the parties are directed to attend with 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.
7.Part 1 of the event will occur by video, using Microsoft Teams, on 12 October 2021, with:
(a)the Applicant to attend at 9.00am; and
(b)the Respondent to attend at 10.30am
AND IT IS NOTED that Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
8.Part 2 of the event will occur in person at the Melbourne Registry at 301 William Street, Melbourne unless otherwise advised on the morning of a date to be fixed. Specific details regarding the attendance of the parties, X and Y on this date will be provided to the parties in Part 1 of the event.
9.Each party will do all things necessary to ensure X and Y attend upon the Court Child Expert pursuant to s.62G(3A), unless otherwise determined by the Court Child Expert that s.62G(3B) applies.
10.The parties, X and Y shall continue to attend at such times, dates and places as the Court Child Expert may advise.
11.Not later than 4.00 pm on 5 October 2021 the parties must provide their contact telephone numbers and email addresses to [email protected].
12.Pursuant to order 6 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 views expressed by X and Y (such as X and Y’s maturity or level of understanding) that would affect the weight that the Court should place on those views;
(d)the impact of the issues/dispute before the Court on X and Y;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of X and Y.
13.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.
14.The Court Child Expert will be at liberty to inspect any material filed by the parties.
AND THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
15.X and Y live with the Mother.
16.The parties forthwith do all things and sign all documents to agree to and engage a professional supervisor from a contact service and complete all necessary intake procedures to enable X and Y to spend time with the Father commencing as soon as possible.
17.X and Y spend time and communicate with the Father as follows:
(a)for up to 3 hours each week (or each fortnight, subject to what the Father can afford) on a Saturday or Sunday at such times as can be accommodated by the contact service; and
(b)by telephone or FaceTime each Tuesday between 6.00pm and 6.30pm with the Father to call X’s mobile phone and the Father is restrained from drinking alcohol or smoking during such calls; and
(c)as otherwise agreed between the parties in writing.
18.For the purposes of the time X and Y spend with the Father:
(a)the time is to be professionally supervised by the contact service;
(b)the professional supervision is to be at the expense of the Father; and
(c)it is requested the Father obtain and file a report from the contact service if he can afford to do so.
19.The parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of X and/or Y and from permitting any other person from doing so.
AND THE COURT NOTES THAT:
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
E.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
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 Klaasen & Klaasen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BENDER
INTRODUCTION:
This is a parenting matter concerning the interim living and spend time arrangements for the children X born in 2009 (“X”) and Y born in 2016 (“Y”). X and Y have not spent time with their Father following an altercation between the parties at changeover in June 2021.
I am not able to make any findings at this time in relation to what occurred at changeover. However it was clearly unpleasant and distressing for X and Y and is indicative of the deteriorating relationship between the parties.
The Mother raises concerns in relation to the Father’s alcohol consumption and in particular his anger management and inability to contain his anger in front of X and Y particularly when he is affected by alcohol. The Mother is also concerned about the Father’s inability to refrain from making inappropriate comments about her and her new partner to or in the presence of X and Y.
The Mother questions the Father’s ability to follow Court orders or obey the law and notes he has had many convictions for breaches of the law.
The Mother deposes in her affidavit sworn 24 August 2021 that X in particular has been exposed to and understands her Father’s inappropriate behaviour and is now genuinely concerned about spending time with him.
The Father denies much of what is alleged by the Mother, albeit even he cannot deny that he was recently heard to say by the girls that he “hates their fucking Mother”. Such a comment in front of X and Y is most inappropriate and raises real questions about the Father’s capacity to shield X and Y from his negative views of the Mother and his lack of insight about how this impacts the girls.
The Mother argues that, pending further enquiries and a Child Impact Report, the time between X and Y and their Father should be professionally supervised. The Mother proposes professional supervision in circumstances were there are no family members who are in a position to give X and Y a sense of comfort as they return to spending time with their Father.
THE LAW
Best interests of the child
Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine what is in the best interests of the child, the Court must consider the matters set out in s.60CC(2) and s.60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties proposals or such other arrangements as the Court determines given the Court is not bound by the parties’ proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.
As this is currently only a determination on an interim basis, I do not intend to go through each of the relevant sections in detail.
The orders I will make on an interim basis until the evidence can be more fully heard must address the primary concern under s.60CC, which is to ensure that X and Y are not exposed to any risk of physical or emotional harm.
Further it is very important that any orders I make set the family on a path that will result in X and Y having an ongoing meaningful relationship with both their parents.
CONCLUSION
X and Y have now not seen their Father for three months following an incident between the parties in 2021.
There has been some limited telephone contact which sometimes has gone well and other times has not gone so well. I think part of that could be just because Y is five and she does not want to talk on the phone.
Having considered all submissions made at this time, I am persuaded that for at least the next seven weeks until this matter returns to Court, time between X and Y and their Father should be professionally supervised.
I am of the view this order will ensure X and Y can be reintroduced to their Father in a way that is secure and safe. It will ensure the Father is not accused of inappropriate behaviours. It will provide the parties and the Court with a report of the interactions between the Father, X and Y and their relationship. It will also hopefully be the first step towards X and Y rebuilding their meaningful relationship with their Father.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender. Dated: 14 October 2021
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