FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marchant & Bethune [2024] FedCFamC2F 1432
File number(s): ADC 1449 of 2024 Judgment of: JUDGE MCGINN Date of judgment: 20 August 2024 Catchwords: FAMILY LAW – CHILDREN – Interim parenting orders sought – Department for Child Protection and South Australia Police reports made by the mother – mother has made historical allegations of sexual abuse against father – allegations of father hurting the child physically – ongoing investigations by South Australia Police – Independent Children’s Lawyer appointed - ex tempore reasons delivered – orders made Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Carter & Wilson [2023] FedCFamC1A 9
Franklin & Franklin [2019] FamCAFC 256
Langley & Tarelli and Anor (No.2) [2020] FamCAFC 126
Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
Re K (1994) FLC 92-461; [1994] FamCA 21
U v U (2002) 211 CLR 238
Division: Division 2 Family Law Number of paragraphs: 140 Date of hearing: 20 August 2024 Place: Adelaide Solicitor for the Applicant: Ms Annells of Annells Lawyers Solicitor for the Respondent: Ms Cunningham of Brite Legal ORDERS
ADC 1449 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MARCHANT
Applicant
AND: MR BETHUNE
Respondent
ORDER MADE BY:
JUDGE MCGINN
DATE OF ORDER:
20 AUGUST 2024
IT IS ORDERED UNTIL FURTHER OR OTHER ORDERS:
1.That the parties do have joint parental responsibility in respect of major long-term issues for the children X born in 2018 and Y born in 2019.
2.That the children do live with their mother.
3.That the children spend time with their father as follows:
(a)for period of six weeks:
(i)on a supervised basis, on one occasion each week for a period not exceeding 2 hours at B Contact Centre, City C, at such times and upon such conditions as the supervisor/director of the Centre may specify; and
(ii)each Saturday or Sunday of each weekend, being the day when time has not taken place at the said Contact Centre pursuant to order 3(a)(i), or if no such day has occurred at the Contact Centre on a weekend then on Sunday, from 10:00 am to 4:00 pm UPON CONDITION that the respondent father’s mother or sister shall have filed and served an undertaking in the usual form that they shall supervise the father’s time with the said children and that one of them having filed and served such undertaking is the person to be present to supervise the father’s time with the children;
(b)after a period of six weeks and UPON CONDITION that the father has applied for the report referred to in order (3)(c) below:
(i)each alternate weekend from conclusion of school Friday (or in the event Friday is a non-school day from 5:00 pm) to commencement of school Monday (or 5:00 pm in the event that Monday is a non-school day) UPON CONDITION…
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- [2024] FedCFamC2F 1432
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CaseChat Overview and Summary
The court, in delivering its ex tempore reasons, considered the welfare and best interests of the children as the paramount concern. The court found that the children should live with their mother while the father’s visitation was to be closely supervised due to the serious nature of the allegations. The court mandated that the father's time with the children should initially be supervised at a contact centre, with his mother or sister supervising him during weekend visits. The court also set out specific conditions for the father's visitation schedule, including obtaining a report on his interactions with the children after four supervised visits and imposing restrictions on alcohol consumption and communication between the parents. The court also ordered the appointment of an Independent Children's Lawyer and a family consultant to prepare a report on the children's welfare and best interests.
The court ordered that the children live with their mother and that the father have supervised visits. The court set out detailed conditions for the father’s visitation, including the requirement for supervision by his mother or sister. The court also imposed restrictions on alcohol consumption by the parents while the children were in their care and prohibited the parents from discussing the proceedings or allegations in the presence of the children. The court further ordered the use of a communication app for the parents and mandated the attendance of the children at a family consultant for a welfare report. The court reserved the question of costs for the trial.
Orders
Orders of the court
ADC 1449 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS MARCHANT
Applicant
AND:
MR BETHUNE
Respondent
ORDER MADE BY:
JUDGE MCGINN
DATE OF ORDER:
20 AUGUST 2024
IT IS ORDERED UNTIL FURTHER OR OTHER ORDERS:
1. That the parties do have joint parental responsibility in respect of major long-term issues for the children X born in 2018 and Y born in 2019.
2. That the children do live with their mother.
3. That the children spend time with their father as follows:
(a) for period of six weeks:
(i) on a supervised basis, on one occasion each week for a period not exceeding 2 hours at B Contact Centre, City C, at such times and upon such conditions as the supervisor/director of the Centre may specify; and
(ii) each Saturday or Sunday of each weekend, being the day when time has not taken place at the said Contact Centre pursuant to order 3(a)(i), or if no such day has occurred at the Contact Centre on a weekend then on Sunday, from 10:00 am to 4:00 pm UPON CONDITION that the respondent father’s mother or sister shall have filed and served an undertaking in the usual form that they shall supervise the father’s time with the said children and that one of them having filed and served such undertaking is the person to be present to supervise the father’s time with the children;
(b) after a period of six weeks and UPON CONDITION that the father has applied for the report referred to in order (3)(c) below:
(i) each alternate weekend from conclusion of school Friday (or in the event Friday is a non-school day from 5:00 pm) to commencement of school Monday (or 5:00 pm in the event that Monday is a non-school day) UPON CONDITION that the father resides with his mother during all such periods and that his mother is in residence with the father during such periods; and
(ii) each Wednesday from conclusion of school (or 5:00 pm) to 7:30 pm; and
(c) that after 4 occasions of attendance at the Children’s Contact Centre:
(i) the father do seek and obtain at his expense a report as to his interaction with the said children at the said Contact Centre; and
(ii) notify the wife and the Independent Children’s Lawyer in writing of the application for the said report; and
(iii) do file and serve an affidavit annexing a copy of the report and written request on each of the mother and the Independent Children’s Lawyer.
4. The time that the children shall live with the mother and/or spend time with the father shall stand suspended and the children shall live with their mother and spend time with their father for special occasions as follows:
(a) for Christmas, in even-numbered years, with their father from 10:00 am Christmas Eve until 5:00 pm Boxing Day, and, in odd numbered years, with their mother from 10:00 am Christmas Eve until 5:00 pm Boxing Day;
(b) for Easter, in odd numbered years, with their father from 9:00 am Good Friday until 5:00 pm Easter Monday and, in even-numbered years, with their mother from 9:00 am Good Friday to 5:00 pm Easter Monday;
(c) for Father’s Day commencing in 2025, with their father 9:00 am to 7:00 pm and on Mother’s Day with their mother from 9:00 am to 7:00 pm; and
(d) for Father’s Day 2024, from 10:00 am to 4:00 pm subject to and UPON CONDITION of the supervision identified in order 3(a)(ii);
(e) on the occasion of each of the children’s birthdays and each of the parents’ birthdays from 3:00 pm to 7:30 pm with the parent with whom the children are not then living or spending time on the morning of that birthday, the father’s time with the children on X’s Birthday in 2024 to be subject to and UPON CONDITION of the supervision identified in order 3(a)(ii).
5. That for the purposes of clarity, the father’s time with the children is to be supervised by his mother and/or his sister.
6. That the father have telephone/video contact with the children each Tuesday at 5:00 pm for a period not exceeding 15 minutes in total, or at such other time as the parties agree in writing, by the father telephoning the children on a number nominated by the mother in writing;
7. It be a condition of the children living with their mother and father spending time with the children that:
(a) each parent shall facilitate the children’s attendance at any periodic extracurricular activity (including training and end of season events) that occurs in the time that the children spend with/live with them UPON CONDITION that the other parent shall not attend such activity that falls within the other parent’s time UNLESS prior written consent has been first had and obtained; and
(b) all handovers occur at the Children’s Contact Centre, school or early education centre where the father’s time with the children commences or concludes at a Contact Centre, school or childcare centre and otherwise, unless the parties have agreed previously in writing, at D Venue, E Street.
8. That the parties be restrained and an injunction be granted restraining each of them from:
(a) abusing, belittling, rebuking, insulting or denigrating the other or the other’s partner in the presence of or within the hearing the hearing of the children or allowing any other person to do so;
(b) discussing these proceedings or any allegations made in them in the presence of or within the hearing the hearing of the children or allowing any other person to do so SAVE AND EXCEPT for the purposes of any interview with police or the Department for Child Protection or its officers;
(c) posting any information on any social media platform regarding the other partner, the other parent’s partner , the other parent’s family, these proceedings or any allegations made in these proceedings or allowing any other person to do so; and
(d) consuming more than two standard alcoholic drinks whilst the children are in their care in any 24-hour period commencing at 12:00 am each day.
9. That each party shall communicate with the other for the purposes of giving effect to these orders by the use of the application “AppClose” and each party shall forthwith acquire such application if not already possessed of the same;
10. That each party shall keep the other informed of their current residential address, mobile telephone number and email address and advise of any changes to the same within 24 hours;
11. That each parent notify the other as soon as reasonably practicable by text message in the event of any serious childhood illness or medical emergency affecting either child whilst in his or her care;
12. That each party do all things and execute all documents necessary to:
(a) authorise the other to liaise with, obtain information from, provide information to and attend separate appointments with any medical specialist, general practitioner, dental practitioner, allied health professional, psychologist, counsellor and/or therapist the children might consult from time to time; and
(b) other than in case of emergency, provide 14 days’ notice of any appointment that either child is to have with any person referred to in order 12(a).
13. That each party do all things and execute all documents to authorise the other to obtain at their own expense information from the said children’s school/childcare as is usually provided to parents, including but not limited to, newsletters, reports and photographs and to attend separately functions and events which parents are normally invited to attend including, but not limited to, school concerts, school assemblies, sports day, and parent/teacher interviews UPON CONDITION:
(a) neither party approach or remain within 5 metres of the other; and
(b) each party do provide to the other with at least 48 hours written notice of their intention to attend any such school or childcare function.
14. That pursuant to section 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer be appointed to represent the interests of X and Y.
15. That to facilitate the appointment referred to in order 14 the parties and/or their respective solicitors do forward all relevant documents to the Legal Services Commission of South Australia within seven days of today’s date.
16. That the parties forthwith provide to the Independent Children’s Lawyer the names and addresses of any medical practitioners, counsellors or other professional people or agencies they have attended within the last 12 months together with the names and addresses of all medical practitioners, schools, day care centres and/or agencies whom the children may have seen or attended in the last 12 months and provide the Independent Children’s Lawyer with authorities for the release of information concerning themselves and the said children from any such person or agency as Independent Children’s Lawyer may request from time to time;
17. Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and X and Y are to attend upon a Court Child Expert (practising under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (which are all of referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 30 October 2024 and that the family report address:
(a) any views expressed by X and/or Y;
(b) the matters set out in ss 60CC, 61D, 61DAA of the Family Law Act 1975 (Cth);
(c) the impact upon the children and upon their relationship with the mother if the Court made orders as sought by the father;
(d) the impact upon the children and upon their relationship with the father if the Court made orders as sought by the mother;
(e) any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the children.
18. Not later than 4.00 pm on 28 August 2024 the parties must provide their contact telephone numbers and email addresses to […[@[…].
19. Each party will do all things necessary to ensure the children attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
20. The parties and the children shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
21. The Family Consultant shall be at liberty to inspect any material filed by the parties or the Independent Children’s Lawyer, and otherwise the following:
(a) any material that has been:
(i) produced to the Court pursuant to any order made pursuant to s67ZBD and s 67ZBE and is not marked confidential; and
(ii) that has by order been made available to the parties or their legal representatives for inspection and/or copying and is not marked confidential;
(b) the exhibits in these proceedings.
22. Upon the family report being provided to the Court, the Court may release the report and provide a copy to each party (or if represented, the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
23. Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may (if the Court is requested to do so for a purpose related to the care, welfare or development of the children) be provided to the following:
(a) a Children’s Court;
(b) a child protection authority;
(c) a State or Territory legal aid authority; and/or
(d) a convener of any legal dispute resolution conference.
24. Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.
IT IS FURTHER ORDERED:
25. That all interim applications do otherwise stand dismissed.
26. That this matter be listed before Judge McGinn on at 10:00 am on 18 November 2024 for trial directions in City C.
27. That the hearing of 11:30 am on 21 October 2024 before Judicial Registrar Derewlany be vacated.
28. That the question of costs of each party (including those claims sought on an indemnity basis) be reserved to trial.
29. That this matter be listed for trial at 10:00 am on 18 February 2025 (3 days allowed) in City C.
30. That correspondence produced to the Court by the South Australia Police pursuant to order made 1 July 2024 be admitted into evidence as Exhibit 1.
31. That correspondence produced to the Court by the Department for Child Protection pursuant to order made 1 July 2024 be admitted into evidence as Exhibit 2.
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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