Moss & Church
[2021] FedCFamC2F 692
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Moss & Church [2021] FedCFamC2F 692
File number: MLC 13201 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 16 December 2021 Catchwords: FAMILY LAW – Interim parenting – father’s time with the children – whether father’s time should be supervised or unsupervised – hair follicle testing – allegations of family violence – contact centre report. Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 12 Date of hearing: 16 December 2021 Place: Melbourne Solicitor for the Applicant: Hartleys Lawyers Solicitor for the Respondent: Knight Family Lawyers Solicitor for the Independent Children's Lawyer: Creative Family Law Solutions ORDERS
MLC 13201 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MOSS
Applicant
AND: MS CHURCH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
16 DECEMBER 2021
THE COURT ORDERS BY CONSENT THAT:
1.Paragraph 1 of the orders granted on 26 July 2021 be discharged.
THE COURT ORDERS THAT:
2.The Father communicate with and spend time with the children X and Y both born in 2015 as follows:
(a)Each alternate weekend:
(i)On 6 occasions on Saturday from 1.30 pm to 4.00 pm;
(ii)Thereafter on Saturday from 10.00 am to 4.00 pm;
(b)On Tuesday 28 December 2021 from 1.30 pm to 4.00 pm supervised by B Family Services;
(c)On Saturday 18 June, if the children are not otherwise spending time with the Father from 10.00 am to 4.00 pm;
(d)On Father's Day from 10.00 pm to 4.00 pm;
(e)By video call each Tuesday between 5.00 and 5.30 pm;
(f)Otherwise as agreed in writing.
THE COURT ORDERS BY CONSENT THAT:
3.In the event that the Mother cancels any scheduled visit on proper medical grounds, that as far as practicable, makeup time be made available during the following weekend.
4.With the exception of time pursuant to Order 2(b) by default the changeover be facilitated by C Childrens Contact Centre in Suburb D, or at Suburb E Police station from time to time as agreed between the parties in writing.
5.Within 7 days the parties each forward an application to C Childrens Contact Centre for their changeover service, and thereafter follow all directions from the service to complete the intake process.
6.During the time that the Father spends with the children, and for 24 hours prior to spending time with the children, he will be restrained from consuming or being affected by any alcohol or illicit drugs.
7.The Father shall sign all documents and do all thing necessary to complete a supervised hair follicle test at Australian Workplace Drug Testing Services ("AWDTS") or equivalent suitably qualified laboratory on or about 1 April 2022 with such testing to cover a period of 3 months prior to such test and the test to include illicit substances and alcohol, and the results of such testing is to be provided by the Father to the Mother's solicitor and the ICL.
8.The Father:
(a)Continue to engage in the group-based healing and behavioural change program facilitated by Mr F assisting persons of Aboriginal descent
(b)Engage in an assessment by a Drug and Alcohol Counselling and comply with all reasonable recommendations as to ongoing therapy.
THE COURT ORDERS THAT:
9.The parties and the Independent Children's Lawyer have liberty to apply.
Family Report
10.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and X and Y both born in 2015 attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children's Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 1 December 2022 and that the family report address:
(a)any views expressed by the children and any matters (such as the children's maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the children and upon the children's relationship with the Mother if the Court made orders as sought by the Father;
(d)the impact upon the children and upon children's 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.
11.Not later than 4.00 pm on 23 December 2021 the parties must provide their contact telephone numbers and email addresses to [email protected].
12.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.
13.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.
14.The Family Consultant shall be at liberty to inspect any material filed by the parties.
15.Leave is granted to each of the parties and the Independent Children's Lawyer to provide a copy of the Family Report to a convener of any legal dispute resolution conference.
Trial and Directions
16.The proceedings be adjourned to 17 April 2023 at 10:00am for Final Hearing (with an estimated hearing time of 3 days) at the Federal Circuit and Family Court of Australia at Melbourne.
17.The matter may be listed for a compliance mention prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.
18.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
19.No later than 56 days prior to the trial date, the Applicant file and serve:
(a)any Amended Initiating Application setting out with particularity the precise final orders sought;
(b)an updated single consolidated trial affidavit;
(c)other witness affidavits upon which they intend to rely; and
(d)in property proceedings, an updated Financial Statement.
20.No later than 42 days prior to the trial date, the Respondent file and serve:
(a)any Amended Response setting out with particularity the precise final orders sought;
(b)an updated single consolidated trial affidavit;
(c)other witness affidavits upon which they intend to rely; and
(d)in property proceedings, an updated Financial Statement.
21.No later than 28 days prior to the trial date:
(a)the Applicant file and serve any affidavit(s) in reply addressing only the evidence presented in the Respondent(s)' affidavits; and
(b)the Independent Children's Lawyer file and serve any affidavits relied upon.
22.No later than 7 days prior to the trial date, all parties are to file and serve a case outline document in the approved form which shall not, without leave, exceed 5 pages in respect of parenting issues and 5 pages in respect of financial issues and shall include:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events that are relevant to the issues to be determined by the Court;
(c)in a parenting case, a summary of contentions as to section 60CC factors relied upon to satisfy the Court that it is the best interests of the child(ren) to make the orders sought;
(d)in a property case, a table listing all of the assets, liabilities and financial resources claimed to be relevant to the dispute, with the values contended for by each party and the main contentions on disputes as to:
•the assets and liabilities available for division;
•the value of items where the value is in dispute;
•contributions claimed or contended for and the percentage-based adjustment on contributions contended for;
•relevant s 75(2) / 90SF(3) factors and the percentage-based adjustment contended for; and
•any further factors relevant to determining a 'just and equitable' division of property.
23.Lists of authorities which Counsel intend to cite to the Court during the presentation of any argument, together with copies of any unreported decisions to which it is intended that reference shall be made, should be filed and served not later than two days prior to the hearing.
24.Each party will be permitted to rely on one consolidated trial affidavit and one affidavit in reply (if applicable) only. Reliance on earlier or additional affidavits will not be permitted.
25.All documents required to be filed and all other documents sought to be relied upon (including any court books) must be filed or provided (as applicable) in electronic format to the Court and to each other party.
26.For face to face final hearings, parties are directed to have multiple copies of the paginated documents they seek to tender or cross examine upon (a judge's working copy, a copy for each counsel and solicitor and a witness copy that will become the exhibit) and have a copy of documents available to witnesses including the witness' own affidavit.
27.No later than 3 days prior to trial, the legal representatives (and the parties themselves if self represented) jointly prepare a trial plan outlining any witnesses for cross-examination and an indication of the time they anticipate required for cross-examination of each witness.
AND THE COURT NOTES THAT:
A.C Childrens Contact Service in Suburb D has confirmed that there is no waiting list for their changeover service, but that the service can commence assisting the family as soon as the parties forward their enrolment forms and complete the intake process which will take approximately 1 month.
B.The Independent Children's Lawyer will arrange a Victoria Legal Aid Family Dispute Resolution Service Conference prior to the Final Hearing.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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 Annexure A and these particulars are included in these orders.
D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
E.Affected unrepresented parties may apply to the court and then 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.
F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 Moss & Church has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPOREJUDGE O’SHANNESSY
These are settled reasons of a judgment delivered ex tempore. The applicant father is Mr Moss (‘the Father’) and the respondent Mother is Ms Church (‘the Mother’). The proceedings concern the children, X and Y who are both aged 6 (‘the children’). The third party to the proceedings is the Independent Children’s Lawyer. The question is whether or not the Father’s time with the children should now move to unsupervised time.
My decision is that I will adopt the proposal of the Independent Children’s Lawyer and the Father to move to unsupervised time at this point. I will adopt the Mother's position of the changeovers being at the Suburb D Centre provided that the delay is no more than at Suburb G. I am not going to take out those orders until you get some information back to me about that because I think Mr Knight's reasoning on that is reasonable, but it may not be. For all we know, there could be a three-month delay at Suburb D, in which case it will be Suburb G. The reason I am making it Suburb D and not Suburb G is:
(1)Mr Moss does not disagree with that; but also
(2)The Mother has a number of children to look after and she has got to get from Suburb H to Suburb G; and
(3)It will be easier for the Father to get to Suburb D notwithstanding he does not have a driver's licence.
I am taking into account all of the materials that the parties ask me to read, including the section 11F child inclusive conference memorandum and including the B Family Services report. This is a tragic case where the Mother has endured some really serious violence that will always have an impact upon her. Whilst not removing the impact of that upon her and the children, in this case I have from the Father what is a refreshing and surprising unequivocal acknowledgement of the harm that he has caused. Sadly such acknowledgments are rare.
Relevant paragraphs of the section 11F child inclusive conference memorandum include:
6.Mr Moss provided an account consistent with Ms Church and acknowledged the seriousness of his past violent behaviours which he associated with his substance use at the time. Mr Moss was remorseful of his behaviours and advised that he will benefit from a Men’s Behavioural Change Program, however due to waiting lists cannot complete until 2022.
12.Mr Moss reported no concerns for the children in the care of Ms Church however was concerned for their emotional wellbeing as they are not being supported to have a relationship with him. However, Mr Moss acknowledged Ms Church’s concerns and advised that he believed that they were understandable based on his previous behaviours.
26.Mr Moss’s provided an insightful narrative with regard to the impacts of his past behaviours on the co-parenting relationship. Mr Moss provided a commitment to having respectful and safe communication with Ms Church.
The Father has undertaken a Men’s Behavioural Change Program.
The further matter that warrants comment is at the time of the July hearing before me, the Father had a recent hair follicle test that shows he was clean of illicit substances but that he had excessive alcohol consumption.
He had candidly described having a few cans after work. A can is one and a third standard alcohol drinks. I suspect that Mr Moss was surprised to find that his alcohol consumption was regarded as excessive; most people who drink too much do not think they do. What is then very significant is that the next test that was undertaken in November records a test of 2.7 PG per mg, which is just over the margin of total abstinence. Total abstinence is regarded as being below 1.9, so the Father’s alcohol consumption over that three-month period may be to have abstained totally or to have been in the latter parts of the test or to have had very moderate consumption.
Christmas is coming up and it is a time unfortunately of rampant alcohol abuse throughout the community, and we will have all the applications before this Court and the family violence Courts in January, February, March and April following what should be the joy of Christmas but with alcohol added to it turns out to be a violent, miserable time. The Father has done a very significant job in acknowledging his past behaviour, staying off illicit substances, and dramatically reducing his alcohol consumption. It would be very sensible for him to abstain from alcohol altogether. However, that is not in the orders, but he must abstain from alcohol as is required in the orders.
I am not ordering the police station changeover when the supervision centre is available because I am not concerned about the Father's care of the children; it is to assist the Mother with the anxieties that she must have from the past. The fact that the Father has candidly come to grips with the past does not mean that it is no longer in the Mother's mind and, indeed, the Father has acknowledged that.
The ICL referred me to three examples in the supervisors report of the Father being child focused and appropriate:
1.3:15pm I asked X what was wrong. X told me he wanted Mum. I relayed this to Dad who then went to the car to get the children’s birthday presents. Dad bought in a racing track for the children to share, a stunt bike toy each, some shoes, and jackets. The shoes were too small so Dad advised he would bring them back next visit, after exchanging them for a bigger size. Dad advised that he would leave early so the children could be collected as X was wanting Mum.
3:20pm Dad gave both children a cuddle telling them he would see them soon. Dad left the center with both children going to the window to wait for Mum.
(see page 23 of 29 of the affidavit filed 6 December 2021)
2.This game quickly became a competition between the children. Y became angry telling Dad that X makes it to hard and he can’t win. Dad calmed Y down and made the children take turns, so it was not a competition. This game continued for the rest of the visit.
(see page 26 of 29 of the affidavit filed 6 December 2021)
3.3:30pm It was time for Dad to leave the venue. Y asked Dad why he had to go. Dad explained that he would see him very soon, and spend some more time with him. Dad gave X a kiss and cuddle also. Dad gave both children their Lego boxes and $5 to take home. Dad left the venue and both children and I went outside.
(see page 28 of 29 of the affidavit filed 6 December 2021)
The report shows that:
·The father is attentive to the children's needs.
·That he has planned for the visits (sandwiches, fruit, toys).
·Manages the interaction with the children well.
·Is child focused and appropriate.
In all these circumstances I find that the orders sought by the ICL are in the children’s best interests.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Dated: 14 February 2022
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