Osment & Novak
[2023] FedCFamC2F 1707
•22 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Osment & Novak [2023] FedCFamC2F 1707
File number(s): PAC 5551 of 2012 Judgment of: JUDGE STREET Date of judgment: 22 November 2023 Catchwords: FAMILY LAW – PARENTING – adjournment final hearing – refusal to vary supervised orders Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth).
Division: Division 2 Family Law Number of paragraphs: 6 Date of hearing: 22 November 2023 Place: Sydney Solicitor for the Applicant: Mr P McCann of Apex Legal Solicitor for the Respondent: Appeared in person Independent Children’s Lawyer: Mr S Nasti of S P Nasti & Co Solicitors ORDERS
PAC 5551 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR OSMENT
Applicant
AND: MS NOVAK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
22 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The final hearing commencing 23 & 24 November 2023 is vacated.
2.The matter is listed for a final hearing commencing at 10AM on 22, 23 & 24 April 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3.Time is extended for the respondent to file and serve a consolidated trial affidavit on or before 24 April 2024.
4.The respondent is directed to file and serve a case outline on or before 17 March 2024.
5.Leave is granted to the applicant and ICL to file an updated case outline if desired to do so.
6.Leave is granted to the parties, including the ICL, to provide any proposed tender bundle material seven (7) days prior to the hearing via email or USB.
7.The oral application for variation of the orders dated 22 December 2021 is dismissed.
THE COURT NOTES THAT:
A.The respondent has attended the hearing and has told the Court that she intends to obtain Legal Aid representation and put on affidavit evidence. If the respondent fails to obtain legal representation or comply with the Court’s above orders, the Court may refuse to grant any adjournment on the next occasion.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These proceedings were fixed for a final parenting hearing to commence tomorrow as a result of orders made on 17 May 2023. The respondent mother has not complied with the orders in relation to order 4 putting on her consolidating trial affidavit or order 6 in relation to her case outline. The respondent mother informed the Court orally that she had approached Legal Aid about a week ago. The mother’s explanation for the failure to comply with the Court’s orders is entirely unsatisfactory. However, this is a matter where there is a serious contest in relation to the contact time that might be ordered in respect of the applicant father. It is unnecessary to go through the history that has been identified in the case outlines filed by the applicant and by the ICL, but suffice to say, that it is, on one view, a no time or identity contact only case, and there are issues that will need to be determined in relation to the explanations being advanced for the failure to comply with the orders that were made on December 2021 by Judge Myers that permitted supervised time through a specified contact centre that still exists.
The explanation advanced to the Court is that it has been too expensive. The applicant father may or may not be the subject of challenge in relation to that factual contention. A failure to take advantage of existing parenting orders is a relevant consideration in relation to the final parenting orders, and, in this case, is a serious issue that should be determined at trial. Mr McCann, the solicitor for the applicant, made an oral application to vary the orders of Judge Myers so as to facilitate some other supervised contact centre based on the contention that it was too expensive for his client. That is an issue that will have to be determined at the trial.
The orders of Judge Myers are still in place. It is one where if the father takes the steps required in relation to a supervised contact centre, he is still entitled to exercise that supervised time with the children, and his ongoing failure to do so will be a relevant consideration in relation to the final parenting orders. Mr Nasti, solicitor for the ICL, did identify that it would be of benefit to have the interaction that might have taken place, albeit that both children have expressed the view to the ICL that they do not wish to spend time with the father, including supervised time. The father has the benefit of those orders and his failure to have exercised it to date is a factor that the Court has taken into account, notwithstanding the explanation of cost and the incarceration for some period of time by the applicant.
The Court is not satisfied that it is in the best interests of the children to vary the order, in circumstances where that order has been in place since December 2021. The Court is also conscious of the view that the mother has submitted, that there is a prospect of the children being retraumatised through a supervised contact regime. That regime has, in fact, been in place and still remains in place. If the father fails to take steps in accordance with the existing order by Judge Myers as the Court has indicated, the Court will take it into account at the time of the final hearing. If the Court is persuaded that the father has been financially unable to afford it, it may well be a compelling and reasonable explanation, which will also impact on the orders that the Court may make in a final hearing.
The Court has taken into account the primary considerations in s 60CC of the Family Law Act 1975 (Cth) and is of the view that the refusal of the oral application is in accordance with the consideration to avoid family violence in respect of the primary considerations, which must be given greater weight than the meaningful relationship. In the circumstances of this case in respect of that explanation and the history of the matter, the Court is not persuaded that it is appropriate to vary the order made by Judge Myers. The Court has also given regard to the additional considerations in s 60CC(2), and, in that regard, the children are at an age where their views can be given some weight and the Court has done so in declining to vary the existing orders. The Court has also taken into account the principles in s 60B and s 69ZN and is satisfied that the above orders are in the best interests of the children.
Accordingly, the Court makes the above orders.
I certify that the preceding six (6) numbered paragraphs are a true copy of the published oral reasons for Judgment of Judge Street. Associate:
Dated: 20 February 2024
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