Naparus and Frankham

[2018] FCCA 1384

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAPARUS & FRANKHAM [2018] FCCA 1384

Catchwords:
FAMILY LAW – Parenting – allegations of family violence – father’s time with child – supervision by paternal grandmother – best interests of the child.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA.

Applicant: MS NAPARUS

Respondent: MR FRANKHAM

File Number: MLC 1462 of 2016

Judgment of: Judge Mercuri

Hearing date: 30 April 2018

Date of Last Submission: 30 April 2018

Delivered at: Melbourne

Delivered on: 30 April 2018

REPRESENTATION

Counsel for the Applicant: Ms M Agresta

Solicitors for the Applicant: Perisic Lawyers

Counsel for the Respondent: Mr E Taghdir

Solicitors for the Respondent: Nick Graham Legal

Advocate for the Independent Childrens Lawyer: Ms S Dosanjh

Solicitors for the Independent Childrens Lawyer: Hartleys Lawyers

ORDERS

1. The matter be adjourned to 15 October 2018 at 10:00am for final hearing (with an estimated hearing time of two days).

2. The party responsible for the payment of any fee including a setting down or hearing fee do 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.

3. Pursuant to section 62G(2) of the Family Law Act1975, the parties and the child [X] born 2015 (“the child”) attend upon a family consultant nominated by the Regional Coordinator of Child Dispute Services in the Melbourne Registry of the Federal Circuit Court of Australia for the purposes of the preparation of a family report to be given to the court by 7 September 2018; AND THAT:

   (a)the family report address the matters relevant to ss.60CC, 61DA and 65DAA of the Family Law Act 1975 and any other matters that the Family Consultant considers important to the welfare or best interests of the child, including:

   (i)relocation;

   (ii)residence; and

   (iii)time;

   (b)the parties comply with all reasonable directions of the family consultant; and

   (c)the family consultant have leave to inspect the subpoenaed material produced to the court.

4. The applicant file and serve any further affidavit at least 28 days prior to the final hearing.

5. The respondent file and serve any further affidavit at least 14 days prior to the final hearing.

6. The Independent Children’s Lawyer file and serve any affidavit at least seven days prior to the final hearing.

7. By 4:00pm two working days prior to the final hearing, each parent and the Independent Children’s Lawyer file and serve an outline of case document including the following:

   (a)a list of the documents to be relied upon;

   (b)a brief chronology;

   (c)an outline of contentions with respect to:

   (i)each of the considerations relevant to determining the best interests of the child (section 60CC factors);

   (ii)whether the presumption of equal shared parental responsibility applies (section 61DA);

   (iii)the considerations relevant to equal time and substantial and significant time (section 65DAA);

   (iv)other matters relevant to the decision (such as sections 60CG, 61F, 65DAB, 65DAC, etc); and

   (d)a statement of the precise orders sought.

8. No party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the court.

9. All previous parenting orders concerning the child be and are hereby discharged.

10. The child spend time and communicate with the father as follows:

    (a)on Wednesday 2 May 2018 for a period of 2 hours as agreed but failing agreement from 10:00am to 12:00pm at (play centre omitted) in (suburb omitted) and the paternal grandmother, Ms D shall be in substantial attendance;

    (b)commencing Saturday 19 May 2018, each alternate Saturday thereafter from 11:00am until 5:00pm;

    (c)thereafter, commencing Saturday 14 July 2018 and each alternate Saturday and Sunday thereafter (on the same weekends) from 11:00am until 5:00pm on each day; and

    (d)such further and other times as agreed between the parties in writing / SMS.

11. For the purpose of changeover, within 14 days, the parties shall do all things and sign all documents necessary to register themselves and the child for supervised changeover at (omitted) Contact Service in (suburb omitted).

12. Pending the availability of supervised changeover pursuant to order 11 herein or in the event the contact centre is unavailable to provide changeover service, unless otherwise agreed in writing / SMS, the following arrangements shall apply:

    (a)at the commencement of the child’s time with the father, the parties shall meet at McDonald’s in (suburb omitted); and

    (b)at the conclusion of the child’s time with the father, the parties shall meet at McDonald’s in (suburb omitted).

13. Each of parties shall, as soon as practicable, advise the other parent of:

    (a)any serious illness or medical emergency involving the child whilst in their care, including all details regarding the injury, illness, hospital location, medical practitioners and treatment required; and

    (b)their contact details, including email addresses and mobile numbers (contact by SMS only unless there is an emergency).

14. Save for an emergency where the parties may call each other, each of the parties communicate with each other by SMS and shall ensure the content of all their messages are succinct and focused on the care, welfare and development of the child.

15. Each of the parties attend upon a psychiatrist nominated by the Independent Children’s Lawyer for the purpose of a psychiatric assessment and report.

16. For the purpose of payment IT IS REQUESTED that Victoria Legal Aid fund the parties to pay for the cost of the same.

17. Liberty be reserved to the parties and the Independent Children’s Lawyer to mention this matter before me, by arrangement with my associate by telephone on (omitted) or by email to [email protected].

18. There be interim parenting orders in terms of the minute of proposed consent orders dated 30 April 2018 and signed by or on behalf of the parties (“the minute”) and:

    (a)the minute be placed on the court file and marked “Exhibit A”;

    (b)the solicitors for the respondent engross the minute and deliver a clean, certified, electronic copy (in Word format) of the minute (“the copy”) to [email protected] within seven days; and

    (c)upon delivery of the copy to the court, the orders within be extracted and the copy be attached hereto.

19. Pursuant to section 65DA(2) 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 Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A)In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:

(a)the filing of documents; or

(b)any other procedural issues,

the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the party in default or their solicitor may be ordered to pay the costs of the other parties wasted as a result of the default.

(B)To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an associate or deputy associate of the trial judge, or by another appropriate court officer, shortly prior to the final hearing date.

(C)Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(D)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

EXHIBIT A

IT IS ORDERED BY CONSENT THAT:

1. The child [X] born 2015 (“the child”) live with the mother.

2. The paternal grandmother, Ms D will effect changeover on behalf of the father.

3. Each of the parties and their servants shall be and are hereby restrained from:

   (a)abusing, belittling or denigrating any other party in the presence or hearing of the child while in their care;

   (b)involving the child in any discussion which involves a dispute between either party;

   (c)discussing these proceedings or any related documents with the child;

   (d)consuming, ingesting or being under the influence of illicit drugs or non-prescribed prescription medication 48 hours prior to or during the time the child is in their care; and

   (e)allowing the child to be in the presence or hearing of any other person doing what is prohibited by the restraints in this order.

4. The father be restrained from allowing the child to come into contact with his brother, Mr M.

AND THE COURT NOTES THAT:

(A)The father consents to these orders without admitting the necessity for restraint on bringing the child into contact with his brother Mr M.

(B)The father has indicated that the child’s time with him will be spent substantially in the (suburb omitted) area at the residence of Ms D, with her being in substantial attendance.

IT IS NOTED that publication of this judgment under the pseudonym Naparus & Frankham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1462 of 2016

MS NAPARUS

Applicant

And

MR FRANKHAM

Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for interim parenting orders in relation to the child [X] born 2015. 

3. By way of background, certain interim orders were made when the matter was last before this Court on 31 January 2018, which provided for the child to spend some time with her father at various play centres, to be supervised by the paternal grandmother. 

4. The father now seeks orders which allow for additional time with the child and for that time to proceed on an unsupervised basis.  That application is opposed by the mother, who seeks for supervised time at the (omitted) Children's Contact Centre, or in the alternative, for supervised time to continue at various play centres. 

5. Having regard to the section 11F child inclusive conference memorandum which was prepared in this matter, I am satisfied that it is appropriate and in the child’s best interests to progress time to an unsupervised basis. 

6. In particular, I have had regard to the fact that there are no reports of any concerns arising from the time spent so far between the father and the child with the paternal grandmother in substantial attendance.  It is of note that even in the mother’s most recent affidavit, she concedes that that time has been progressing without incident, although she does allege that in her view, the child does not have a bond with her father. 

7. The section 11F report writer also makes the comment that the child needs to be provided with an opportunity to continue to build her relationship with her father in a safe environment. 

8. To that end, I am satisfied that the orders which have been proposed by the father are in the best interests of the child and appropriately balance the risks and the concerns expressed by the mother. 

9. I note that in this case, there have been allegations of family violence made by the mother against the father.  I also note that the father denies those allegations and makes his own allegations against the mother.  In those circumstances, and given that this is an interim hearing, the best evidence before the Court as to the child’s relationship with the father is that of which is contained in the section 11F memorandum. I have had regard to that section 11F memorandum.

10. The only change that I propose making to the orders which have been submitted on behalf of the father, and which have been submitted with the support of the Independent Children's Lawyer, is that I do not propose making order 3(d), which relates to Christmas at this stage.  I simply do not have sufficient information before me at this stage to be making that order.

11. Also, in relation to changeover, having regard to the concession made by the father that he is content for changeover to be effected by the paternal grandmother and that he will not be present at changeover, order 6 will be amended such that it will read, “the paternal grandmother, Ms D, will effect changeover on behalf of the father”.  Other than that, I will list the matter for a final hearing.

12. I will also make the orders as per the orders and directions sheet that has been handed up.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:     29 May 2018