Masters & Herceg (No 2)
[2022] FedCFamC1F 341
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Masters & Herceg (No 2) [2022] FedCFamC1F 341
File number(s): SYC 3858 of 2019 Judgment of: SCHONELL J Date of judgment: 11 May 2022 Catchwords: FAMILY LAW – PARENTING – Interim orders – Where final proceedings had commenced – Where the mother sought orders for the father to only spend supervised time with the children – Where the issue at trial was whether there was an unacceptable risk in the father spending unsupervised time with the children – Where the Family Report writer recommended that interim orders be made to allow the father to undertake various courses and for the parties’ to engage in therapy – Where the Family Report writer contended that the matter could only be properly determined through further evidence, making it necessary for interim orders – Interim orders made by consent. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC Division: Division 1 First Instance Number of paragraphs: 34 Date of hearing: 9 – 11 May 2022 Place: Sydney Counsel for the Applicant: Mr Havenstein Solicitor for the Applicant: Swifte Law Counsel for the Respondent: Mr Roberts Solicitor for the Respondent: Sydney Law Group Pty Ltd Counsel for the Independent Children's Lawyer: Ms Rebehy Solicitor for the Independent Children's Lawyer: Shedden & Associates ORDERS
SYC 3858 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MASTERS
Applicant
AND: MS HERCEG
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
11 MAY 2022
THE COURT ORDERS BY CONSENT THAT:
1.By consent and pending further order, orders are made in accordance with paragraphs 1 to 26 of a document titled “ICL Proposed Minute” dated 11 May 2022, marked as Exhibit 13, as set out hereunder:
1. That all previous parenting orders be discharged.
Parental Responsibility
2.That the mother shall have sole parental responsibility for the children [X] born [… 2007]; and [Y] born […] 2016 (“the children”). The mother shall notify the father as soon as practicable, of any long term decisions or medical emergencies affecting the children via the parenting app.
Live With
3. The children shall live with the Mother.
Spend Time & Communicate With
4. The children shall spend time with the father as follows:
a.for up to 4 hours once per calendar month on the third Saturday of each calendar month, from 12.30pm to 4.30pm, or as otherwise arranged by the supervising agency.
b.the children’s time with the father shall be supervised by [D Contact Service];
c.the father shall arrange the visit with the supervising agency and pay for the visit by the 1st day of the month preceding the fathers time with the children, and instruct [D Contact Service] to confirm with [Ms Herceg] the payment has been made. If this is not done, the children shall not be required to spend time with the father for that month.
d.The father is at liberty to send gifts and cards to the children to their home address for their birthdays, Christmas and Easter.
e.The father shall communicate with the children by telephone or video call on each of their birthdays, his birthday, Father’s Day, and Christmas Day by the mother initiating the call to the father’s phone between 5.00pm and 5.30pm on those days.
Communication
6.The parties shall communicate regarding the children using a parenting app such as ‘Our Family Wizard’ and to facilitate this:
a.Within 7 days of the dates of these orders, the father shall set up an account with a parenting communication app and send the mother the details;
b.Within 7 days thereafter, the mother will do all things to set up her account;
c.The father shall pay for the costs of the communication app and keep the app active.
7.That the mother shall be permitted to provide a copy of these orders to the children’s school and providers of extra-curricular activities.
8.That the father has leave to provide a copy of the Family Report of [Ms C] dated 3 February 2022, the transcript of the judgement of [Magistrate F] of the Local Court dated 31 July 2020, and the Orders to any medical practitioner or mental health practitioner treating the father.
9.Both parties must inform the other party of their respective residential address and telephone number, mobile telephone number, and email address (if any), if they have not already done so, within forty-eight (48) hours from the date of making these orders & shall keep the other party advised of such details at all times & advise the other party of any change of such details within twenty-four (24) hours by text message.
Overseas Travel
10.That pursuant to section 65Y of the Family Law Act 1975, the children are permitted to travel internationally including outside the Commonwealth of Australia, with the mother, without the father's consent.
11.That the mother has the sole responsibility for giving consent to making arrangements for the application and issue of an Australian and Country L passport for each of the children.
12.Pursuant to section 11 (1)(b) of the Australian Passports Act 2005 the mother is permitted to apply for and obtain the issue and renewal of Australian passports for the children under the provisions of the Australian Passports Act 2005 and any corresponding Country L legislation without the father’s knowledge or consent.
13.That in the event that the mother intends to travel overseas with the children, or either of them, then the mother shall provide to the father no less than four (4) weeks prior notice of her intention to travel with the children, or either of them, and shall provide to the father with the details of where the children will be staying.
14.That the Father’s time with the children pursuant to Order 4 be suspended during the time the Mother is travelling with the children and intends to travel with the children to Country L during the period mid December 2021 until the end of January 2022.
Restraints
15.Both parties be restrained from denigrating each other in the presence, or hearing, of the children, and both parties are to use their best endeavours to stop any third party from doing so in the presence, or hearing, of the children.
16. The father is restrained from:
a.Discussing with the children spending time with them outside the current arrangements or Court Ordered time
b.Discussing with the children gifts that he intends to purchase or has purchased for them
c.Buying or giving the children gifts during his time with them, unless they are gifts for a special occasion, and except for purchasing activities to engage in with the children during the time that he is spending with them.
17.That without admission by the father unless expressly provided for in these orders, pursuant to s68B of the Family Law Act 1975, the Father, [Mr Masters] shall be and is hereby restrained from contacting or approaching or attempting to contact or approach the mother by any means whatsoever including through any third party and the father is restrained from:
a.Attending or being within 100m of the ordinary place of residence of the mother, and attending or being within 100m of any place of employment of the mother.
b. Harassing, stalking or intimidating the mother.
c.Contacting, or attempting to contact or approach the children [X] born […] 2007; and [Y] born […] 2016 (“the children”) by any means whatsoever, including through any third parties and further the father is restrained from being within 100m of the children's ordinary place of residence or being within 100m of any school or educational institution or extra- curricular activities, without the mother's written consent or as provided by these orders.
d.Consuming alcohol 12 hours prior to spending time with the children or when the children are with the father.
20.Within 24 hours of these orders, the father shall contact and enrol in the [E Program] for perpetrators of domestic violence ([G Services]) and shall undertake and complete the program commencing in August noting the program goes for 12 weeks @ $20 per session, and the father shall provide the mother’s lawyer with a report from the facilitator as to the father’s engagement and completion.
21.That the Father shall undertake an assessment of and treatment for his problematic alcohol use, and engage in a relapse program, and provide a report from the therapist as to the father’s treatment and engagement.
22.The father shall engage in reportable therapy with a suitably qualified Child and Family therapist (‘the Therapist’) as nominated by the ICL, as follows:
i.For the father to accept responsibility of his assault on the mother, and the family violence;
ii. For the father to convey this to the children;
iii.For the children to be supported and have an understanding of the family violence and dynamics;
iv.The mother shall also engage with the process as required by the therapist and shall ensure the children are supported and attend as required.
v.The father shall meet the costs of the therapy and both parties shall make enquiries about partially funding this through a mental health plan.
23.Within 7 days of the date of these Orders, the mother shall do all things necessary to obtain the first available appointment from the children's general practitioner a mental health plan for a Child and Family Therapist for each of the children and thereafter, the mother do all things necessary and provide the children as required by the therapist.
24.The mother be permitted to provide the Therapist and any supervisor with the following documents:
a. [Ms C’s] Family Report dated 3 February 2022; and
b.The transcript of the Judgment of [Magistrate F] of the Local Court dated 31 July 2020; and
c. These Orders.
23.The parties and children shall attend upon the Child Court Expert [Ms C] for the purposes of an updating report in December 2022.
24.It is noted the above and each sub paragraph pursuant to s68B of the Family Law Act are injunctions to which s68C would apply and accordingly any Police officer made aware of these orders and whom on reasonable grounds believes that such orders and injunctions have been breached by the father, may arrest the father without warrant.
ICL
25.That within 14 days from the date of these orders the Independent Children's Lawyer (ICL) shall arrange a conference with the children to explain these orders.
XBOX
26.The father shall returned [X's] X-Box to [X] by delivering the X-Box to the office of the Independent Chidlren’s Lawyer at [H Street, Suburb J].
NOTATION:
A.The paternal grandparents are at liberty to attend the supervised contact visits.
AND THE COURT FURTHER ORDERS THAT:
2.I fix this matter part-heard before me for two days commencing on 16 February 2023.
3.Leave is granted to the parties to approach to re-list the matter on three days’ notice.
4.Pursuant to s 65DA(2) and s 62B 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, and details of who can assist parties adjust to and comply with an order, are set out in the Fact Sheet 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 the pseudonym Masters & Herceg has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings for final parenting orders in relation to the parties’ two children who are aged 14 and 6. The proceedings were listed for three days commencing on Monday of this week.
The mother sought final orders as contained in her Amended Response, which summarised, are orders for sole parental responsibility, that the children live with her, and that the father spend time with the children on a supervised basis each alternate Sunday from 10.00 am until 2.00 pm and on other specific occasions during the year.
The father sought orders that are more particularised in his Outline of Case Document but can be generally described as orders for equal shared parental responsibility, that the children live with their mother, and that he spend time with the children during school terms from after school Friday until Monday and in the event of a long weekend until Tuesday, and for half of each school holidays. Commencing in 2024, he sought time with the children from the conclusion of school Thursday to the commencement of school Monday.
The Independent Children’s Lawyer (“ICL”) had reserved her position subject to hearing the evidence of the parties.
It is clear from the orders as proposed by each parent that they each contended that it was important that the children have a meaningful relationship with the other parent. They just differed as to how that could be achieved.
Parenting proceedings are governed by Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA of the Act provides that the Court is to regard the best interests of the children as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
In applying the primary considerations, the benefit to the child of having a meaningful relationship with both parents is subservient to the need to protect the child from the risks and harms identified in the subsection.
As I said, both parties consider it important that the children have a meaningful relationship with the other parent. They just differed as to how it can occur.
I am, however, required when applying the primary considerations to give greater weight to the need to protect the children from risk and harm than to the benefit to the children of having a meaningful relationship with both parents.
Exhibit 11 in the proceedings was a List of Issues as identified by the parties through their respective counsel. However, for my part, the central issue in the case was one of risk: did the father pose an unacceptable risk to the children such that the time with the children should be supervised and, if so, for how long?
The Family Report writer identified the risks as contended for by the mother. In her Report, the writer observed as follows:
53.The mother’s key concern for the safety of the children in the father’s care is that he drinks until he is heavily intoxicated and then becomes verbally abusive and nasty. She said she holds concerns that if she was not present the father may become physically violent toward the children, reporting there was one incident where the father roughly pulled [X] from the car by his elbow. …
…
55.The mother’s view is that the children need protection from the father’s drinking, aggression, and his demanding personality. She feared that without supervised time the father would manipulate the children and undermine her relationship with them. She said the father has once told [X] that people who go against him get cancer. The father denied ever saying this.
…
68.The mother reported a history verbal, psychological, and physical violence which she alleged the father perpetrated against her throughout their relationship. The last incident of violence resulted in the father being convicted of assaulting her and was the catalyst for her to end their relationship.
The Family Report writer also recorded further concerns of the mother as follows:
82.The mother said her primary concern for the children related to his excessive alcohol consumption and that he failed to acknowledge that his drinking caused his violent and abusive behaviour which impacted detrimentally on the children as well has herself. She said he still does not understand or acknowledge that his excessive drinking has caused her to ask that his time with the children be supervised.
…
84.The mother said that she has always been the target of the father’s abusive and violent behaviour and said that she was more worried since separation that if the father had unsupervised time and he was drinking, then he may turn his aggression onto the children. …
The father’s position in so far as risk was concerned was identified, where the Family Report writer recorded:
44.The father believes that his proposal is the best interests of the children because he does not accept the mother’s allegations that he has problematic alcohol consumption, nor that he is violent, and indicated he poses no risk of harm to the children. …
And the Family Report writer observed:
45.If the father’s proposal were successful, and the mother’s allegations are true, it could be expected the children would be exposed to the father’s drinking and associated mood changes when intoxicated. …
There is no issue in the proceedings that the father was convicted of assaulting the mother in the presence of the children in April 2019 and a two-year ADVO was made protecting the mother, which will expire in July of this year.
The parties separated on 23 May 2019 and the first time that the children had with their father commenced in or about September 2019, initially weekly and then in November 2019, it moved to fortnightly time. Time ceased in March 2020 but resumed in or about January of this year and in 2022, there have been three or four occasions when the children have spent time with the father on a supervised basis.
The report writer summarised the contents of various supervision reports and a specific enquiry was made by the Court with the mother’s counsel as to whether or not she accepted what had been reported by the Family Report writer. In particular, the mother agreed with the observations of the Family Report writer, where she records:
42.… The reports appeared quite detailed and conveyed a strong relationship between the children and their father and paternal grandparents. The contact reports indicated he was able to meet all their needs during the visits and was always appropriate with the children.
At paragraph 87 of the Report, it was agreed that the Family Report writer had accurately recorded the following:
87.… These reports indicate that the father was observed to be competent, warm, affectionate, and fully engaged with the children during visitation. The children were observed to thoroughly enjoy their time with the father and paternal grandparents. There were no concerns of significance raised by supervisors in the father’s engagement or management of the children. …
And the Family Report writer further recorded, again agreed to by the mother, that it was:
129.… common ground that prior to separation, the father had a close and caring relationship with both children. This was evidenced in collateral material from [M Contact Service] reports which raised no concerns regarding the father's parenting or interaction with the children. The reports indicate he was prepared for visitation and remained focused on the children's needs, sharing enjoyment and affection with them. It was recorded that the children at times were reluctant and sad to say goodbye to the father at the end of visitation. …
Whilst these observations are largely made in the context of supervision, it is clear that the father has a lot to offer these children. It is clear that the children will benefit from having a relationship with him.
The Family Report writer records the following:
133.Whilst [Y] was not able to express her views about her relationship with the father, [X] did, and indicated he missed his father and paternal family and was worried that he may be losing connection with them. …
The Family Report writer also records the following:
116.[X] was asked what he thought about seeing his father and he replied he did not know. He looked saddened and confused. He said he was OK to see his father and OK to not see his father, which this Family Consultant understood to mean that if he is ‘made’ to see his father he will not say no, and probably be secretly happy about [it]. …
Returning to the question of risk. The Family Report writer observes as follows:
134.… the father does not appear to have taken the opportunity to extend his knowledge regarding alcohol use and safe alcohol consumption, which would demonstrate his commitment to ensure he spends time with the children. He reports continued alcohol consumption that is above the levels recommended for safe daily consumption.
…
136.… During the family interview the father minimised the assault upon the mother and there appears to have been no action taken by him to address his violence or to demonstrate to the mother and children that he has taken responsibility for his violent behaviour and is willing to try and make amends. Such actions would offer an appropriate model to [X] as a young man entering the stage if life when he begins to explore respectful relationships with peers. …
The Family Report writer was cross-examined today. She was asked about her recommendations that the father needed to undertake various courses. She indicated that completion of the courses was a necessary precursor to a movement to unsupervised time but that the father would need to accept responsibility, recognise the problems, and there would need to be an improvement in communication. It was explored with the Family Report writer how the Court would become aware whether the father had gained the necessary insight into the impact of his behaviour. It became apparent that the Family Report writer was of the view that that matter could only properly be determined through the prism of further evidence and that by necessity that involved making today interim orders.
The Family Report writer recommended that the parties engage in a form of therapy albeit that it only need be limited to about six sessions and it was apparent that it did not involve the mother and father necessarily being in the same room. It also became clear that there would need to be some feedback from the facilitators of the courses that the father was to engage in to ensure that there was some oversight of the father’s progress. It was also discussed with the Family Report writer about the necessity for an updated Report.
Following the expert evidence, the parties have engaged in some discussions and have produced a Minute of Order. I propose to make the orders as sought in that Minute.
I note, however, the Family Report writer seemed to infer that this was a chance for the father to prove himself. I note with some concern the observations contained in Exhibit 2, which is the Child Responsive Program Memorandum dated 29 November 2019, which records as follows:
●If the Court considers that [Mr Masters] has perpetrated family violence, then it may be appropriate for him to successfully complete a men’s behaviour change program.
They were prescient words and one wonders if the father had engaged at that stage with that recommendation whether we would be here today.
Be that as it may, the father needs to be pro-active. Now is his chance for the benefit of his children to take an opportunity.
I propose to make Orders 1 to 25 contained in the ICL’s Proposed Minute and note the Order in relation to the Xbox, which I think is a very sensible order.
(Recorded: not transcribed)
I fix this matter part-heard before me for two days commencing on 16 February 2023.
(Recorded: not transcribed)
Leave is granted to the parties to approach to re-list the matter on three days’ notice.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 2 June 2022
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