Raddack & Gadoury

[2021] FedCFamC2F 461

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Raddack & Gadoury [2021] FedCFamC2F 461

File number:	MLC 2245 of 2021
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	5 November 2021
Catchwords:	FAMILY LAW – Interim parenting orders – neither party to have veto – supervised time to continue – injunction restraining vaccination sought and not made – matter requires further interim hearing – children to be assessed by a paediatrician – notice of material to be relied upon pursuant to section 144 of the Evidence Act 1995 (Cth).
Legislation:	Family Law Act 1975 (Cth), ss.60CC and 69ZL Evidence Act 1995 (Cth), s.144
Division:	Division 2 Family Law
Number of paragraphs:	20
Date of hearing:	5 November 2021
Place:	Melbourne
Counsel for the Applicant:	Ms V Morkos
Solicitor for the Applicant:	Russo & Russo Pty Ltd
Solicitor for the Respondent:	Brendan Rothschild Legal Group

ORDERS

MLC 2245 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR RADDACK

Applicant

AND:

MS GADOURY

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	5 NOVEMBER 2021

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1.Order 2 and Order 4 of the Interim Orders made 28 April 2021 be discharged.

2.Pursuant to s 68L(2) of the Family Law Act 1975 that X and Y both born in 2018 hereinafter referred to as (“the children”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and the parties make application to Victoria Legal Aid requesting that they makes such arrangement as soon and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:

(a)Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.

(b)Within 48 hours of notification of such appointment the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents.

(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published at (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents.

(d)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published at ( and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.

(e)The Independent Children’s Lawyer prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she may recommend be made as final orders as soon as the Independent Children’s Lawyer is able to, and not less than 5 business days before the trial.

3.The children spend time with the Father as follows:

(a)From 6 November 2021 to 20 November 2021 each Saturday for a period of 1 Hour supervised by B Family Services with the father at liberty to have the paternal grandmother attend such supervised time with the Father; and

(b)From 27 November 2021 to 11 December 2021 inclusive each Saturday for a period of 2 hours supervised by B Family Services with the father at liberty to have both the paternal grandfather and grandmother permitted to attend such supervised time with the father noting that the paternal grandfather is not permitted to attend on his own with the father; and

(c)From 18 December 2021 and each alternate Saturday thereafter the father spend time with the children from 11.00am to 3pm; and

(d)From 26 December 2021 and each alternate Sunday thereafter the father spend time with the children from 11.00am to 3.00pm; and

(e)On Christmas Eve, 24 December 2021 for a period of 4 hours by agreement and failing agreement from 12.00pm to 4.00pm; and

(f)On the Children’s Birthday in 2022 by agreement and failing agreement 4.00pm to 6.30pm;

(g)At such further and other times as agreed between the parties in writing (including via email and text message).

4.The supervised time pursuant to order 3 (a) and 3(b) herein be supervised by B Family Services  at such location as determined by the supervision agency as best affords protection to the children.

5.Changeovers to take place inside the McDonald’s at C Street, Suburb D Victoria or as agreed in writing.

6.That the parties immediately download and utilise AppClose parenting application for all parental communications, save in the event of an emergency.

7.That the Mother within 14 days of the date of these orders attend upon the children’s treating General Practitioner (and provide a copy of the supervision report and letter of B Family Services, regarding their observations of the children) and obtain a referral for the children to be cognitively assessed by a paediatrician and to comply with all reasonable directions of the said paediatrician in respect of such assessment.

8.Within 14 days the Mother enrol in, and complete as soon as practical, a Parenting Orders Program.

9.Mother provide a copy of her Mental Health Plan obtained from her GP as reported by her solicitor today but is permitted to redact details relating to the Mother’s medical condition, save that the Doctors details are not to be redacted.

10.The Supervision report of B Family Services is to be provided to any medical practitioner the Mother consults.

11.The Father is at liberty to provide a copy of the observation report to any medical practitioner he consults. 

THE COURT ORDERS BY CONSENT THAT:

12.The Father is to pay the costs of the paediatrician appointments and assessments.

13.The parties provide to each other a list of the children’s treating GP, child maternal health nurse, paediatrician and any specialist that the children have attended or are attending within 14 days and keep the other parent informed of any future appointments.

14.The Mother provide to the Father details of the children’s daily routine and any food intolerances or allergies and dietary requirements.

15.Each parent keep the other informed of changes to the children’s health while the children are in their care and as soon as practicable, notify the other parent of any medical emergency involving the children.

16.Both parents each make available to the other party any medications prescribed for the children to administer when the children are in the care of the other party and the other party shall thereafter administer the medication as prescribed or required.

17.These orders provide, and be and are, authority to any doctor or other medical specialist (including dentists and orthodontist and psychologist) upon whom the children may attend to provide to the father and mother all information they may request with respect to the children and copies of any reports arising.

18.Each parent shall immediately:

(a)Inform the other parent of any serious illness or injury sustained by the child whilst in their care, and further, provide particulars of any treatment required or received by the child together with the name and address of the treatment provider and/or location at which the child is a patient.

(b)Inform the other parent in the event the child is required to received medication and advise the details of the prescription and the prescribing medical practitioner.

19.Each parent their servants and/or agents be and are hereby restrained by injunction from:

(a)Abusing, rebuking, denigrating or belittling one another in the presence or hearing of the child or permitting others to do so;

(b)Discussing these proceedings or matters raised within these proceedings in the presence or hearing of the child or permitting others to do so.

(c)Enrolling the child, or allowing the child to continue to be enrolled, in any activities or making any appointments for the child, which take place within the time the child spends with the other parent, without the express written consent of the other parent.

(d)Using any form of corporal or physical punishment or discipline upon the child or threatening to do so or permitting any other person to do so.

20.Liberty to apply on short notice is reserved to the parties.

THE COURT ORDERS THAT:

21.The matter be adjourned to 7 February 2022 at 9:30am for Interim Defended Hearing at the Federal Circuit and Family Court of Australia.

22.On or before 7 January 2022 each party provide to the other a list of such material they seek to refer to on the issue of vaccinations.

23.Any further affidavit material to be relied upon to be filed on or before 31 January 2022.

24.Order transcript of proceedings on 4 and 5 November 2021 be provided to the parties and ICL.

25.The proceedings be adjourned to 30 January 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.

26.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.

27.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.

28.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.

29.No later than 28 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.

30.No later than 21 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.

31.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.

32.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.

33.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.

34.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.

35.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and X and Y both born in 2018 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 31 October 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.

36.Not later than 4.00 pm on 12 November 2021 the parties must provide their contact telephone numbers and email addresses to [email protected].

37.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.

38.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.

39.The Family Consultant shall be at liberty to inspect any material filed by the parties.

40.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.

AND THE COURT NOTES THAT:

A.The Father’s time with the children from 18 December 2021 onwards is unsupervised.

B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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.

C.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.

D.Affected unrepresented parties may apply 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.

E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

F.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 Raddack & Gadoury has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are my short form ex tempore reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”). This matter was listed before me yesterday after being transferred from the docket of Judge Riethmuller (as his Honour then was), and in the circumstances of a family emergency of one of the lawyers, was rolled over to today. The matter involves the children of the relationship, X and Y both born in 2018 (“the children”) who live with the mother, Ms Gadoury (“the Mother”), and what time the father, Mr Raddack (“the Father”), should spend with the children.

2. My decision is that for the next six weeks, the Father’s time should be supervised for one hour for the next three visits and two hours for the following three visits, but after the next six visits, which would be up to and concluding on the weekend of 11 and 12 December 2021, thereafter, the time should be unsupervised and it should be for four hours.  For the first three visits, the Father is at liberty to attend with only the Paternal Grandmother.  Thereafter, after those three visits, the Father is at liberty to attend to have the Paternal Grandmother and the Paternal Grandfather if he wishes, but not the Paternal Grandfather alone.  The time will then move to four hours without supervision. 

3. The order for Christmas Eve should be for four hours not six: 12:00pm to 4:00pm.  I am cognisant that there is a very significant period of travel time here. 

4. The supervised time will be as directed by the service in accordance with the supervision agency.  It will be as determined by the supervision agency as best affords the welfare and safety of the children.  In other words, neither parent has the veto of where that facility is to be.  I am not delegating that decision to the supervision service, but I do not have the information to choose which facility it should be at, but it should be determined with the assistance of that facility.

5. I note the Mother's communication today via her solicitor that it is her firm and considered intention to cooperate with the supervision service.  I am going to appoint an Independent Children's Lawyer (“ICL”) in the circumstances where there are allegations of child abuse.  As to the birthday time, that will be as specified at 3(e) on the children's birthday by agreement and, failing agreement 4:00pm to 6.30pm.  Otherwise, the time will be from when the supervision ends on (the last session of supervised time will be in that week of 11 and 12 December), unsupervised.  The time will then be alternating, it will be each weekend, but a Saturday one weekend and a Sunday one weekend. 

6. The changeover point will be the Suburb D McDonald's halfway between the parties' homes.  I have pondered whether the Father should do all of the travel, but, in the circumstances where I am limiting the time to only four hours, the parties must share the travel.  The matter will return before me on 7 February 2022 at 9.30am. 

1. The Mother must provide a copy of the mental health plan obtained from a general practitioner (as reported by her solicitor this day) to the Father and the ICL, but redacted of any details relating to the Mother’s medical condition save that that redaction shall not include redaction of the general practitioner’s name and address.  Now, that does not mean everything can be redacted, but I am leaving it to the Mother as to what should be redacted given the extreme private nature of such a document.

2. I decline to make the injunction that the parties be refrained from vaccinating the children in the circumstances where there is no risk that the Father will somehow get the children vaccinated in the limited time he is going to have available with the children.  I will note in the orders that the issue of vaccination, as well as time, will be alive on 7 February 2022.  

3. There will be a direction that on or before 7 January 2022, each party provide to the other a list of such materials as they will seek to refer to on the issue of vaccination, including any to be referred to pursuant to section 144 of the Evidence Act 1995 (Cth) on 7 February 2022. In other words, no one is to be ambushed by saying, “I want you to read this document or that document or refer to this website or that website.” Further, any further material to be relied upon by either party is to be filed on or before Monday, 31 January 2022. I really mean that. No more late filing of material. It is not just difficult for the Judge, it is really difficult for the other party.

4. I may be able to deal with the vaccination dispute on the return and the parties should be alert that one way of dealing with a vaccination dispute is that one or other parent should have sole responsibility for the issue of vaccination, and that could be the Mother or it could be the Father, as opposed to me determining what is in the best interests of the children.  It may be that I leave that as a parental decision. 

5. I take into account all of the evidence.  In particular, I take into account the chronology of supervised time as discussed with the parties’ lawyers.  I take into account the best interests of the children.  I do not find on this interim hearing that there is an unacceptable risk of harm to the children from the Father’s care and attention to them or in regard to his grandparents’ care and attention.  The primary reason of continuing supervision is to assist the Mother deal with what I regard as her obvious anxiety of having been the sole carer of these children, now for a number of years and being anxious and concerned about the extent to which the Father can cope.  I am heartened by his ability to cope in the very difficult circumstances of the supervision being in an open public place and the manner in which he calmly dealt with that. 

6. I reject the argument that it is necessary for the Father to have his Mother (the Paternal Grandmother) present because he cannot cope, because of the common ground position that these children are not easy for a stranger to look after.  They may well be much easier for the Mother to look after in her home, however in my view, the Mother has not appreciated how difficult it would be for the Father, who is effectively getting to know these children, to care for them in an open public place like a park as she has insisted on to date.

7. I take into account the best interests of the children and the primary considerations of section 60CC of the Act , both of them, and I give greater weight to the safety aspect of those primary considerations and I take into account the additional considerations of section 60CC(3)(a) through to (m). I do not apply the presumption of equal shared parental responsibility. It is not appropriate to apply that presumption at this interim hearing.

8. I have determined that this very restricted time in the unfortunate circumstances that the children have effectively only met their Father twice in recent times and in the circumstances of the dynamics of their unusual behaviour as described in the report it is in the children’s best interests that that time be limited at this stage.  That is very limited time in the circumstances of the additional travel.  I am aware of that.

9. Regarding communication between the parents, that will be via the free app.  My reasons for that is it is free and one of the parents has hitherto rejected the Wizard app but seeks its use, notwithstanding the court order.  It is not up to either parent to take it on themselves to determine these arrangements by themselves.  Because they cannot work it out the Court is imposing these matters on them.  That should be absolutely clear to both parents.

10. I also take into account the Mother’s allegations of a history of family violence and generally appalling comments from the Father.  There can be no doubt about the text message relating to breastfeeding that was made some three and a half years ago, and that does concern me.  I take into account the other allegations that the Mother makes in regard to the Father’s greeting to the children, which is denied, and I do not have the context surrounding that in any event and I do not have the context surrounding either communication, but I do not disregard them. 

11. We will set the matter down for final hearing as a three-day matter, 30 January 2023.  We will order a family report to be available.  I will also order a transcript of the proceedings yesterday and this day to be available to the parties, including the ICL. 

12. I also will direct that the observation report be provided to any medical practitioner concerned with the Mother, particularly in regard to her mental health plan, so that any medical practitioner has that information.  In the event that the Father consults any medical practitioner himself, he is at liberty to provide that supervision report to such medical practitioner. 

13. Within 14 days, the Mother enrol in a parenting orders program and complete that as soon as possible. 

14. There will be liberty to apply in the event there is further trouble, but I make it clear neither parent has a veto in regard to these arrangements.  These arrangements that I am ordering are far from what the Father wants, but he is not entitled to take it into his own hands and determine that he will keep the children, as he would have liked to.  The Mother is not entitled to take it into her own hands and either veto or limit time as she would like. 

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:  

Dated:       30 November 2021