Rallis & Eagleson
[2022] FedCFamC2F 1740
Federal Circuit and Family Court of Australia
(DIVISION 2)
Rallis & Eagleson [2022] FedCFamC2F 1740
File number(s): MLC 14311 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 17 November 2022 Catchwords: FAMILY LAW – interim defended hearing - both parties self-represented – Mother seeking to reduce overnight time due to family violence concerns – orders made for additional overnight time. Legislation: Family Law Act 1975 (Cth), ss 62G, 69ZL, 102NA Cases cited: Eaby & Speelman (2015) FLC 93-654
Goode & Goode [2006] FamCA 1346
Division: Division 2 Family Law Number of paragraphs: 13 Date of hearing: 17 November 2022 Place: City B The Applicant: On his own behalf The Respondent: On her own behalf ORDERS
MLC 14311 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RALLIS
Applicant
AND: MS EAGLESON
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
17 NOVEMBER 2022
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Parenting arrangements
1.All extant parenting orders are hereby dismissed.
2.The children X born in 2015 and Y born in 2017 (“the children”) live with the Mother.
3.The children spend time with the Father as follows;
During school term:
(a)Each alternate weekend with the Father from the conclusion of school Friday (or 4.00pm if a non-school day) until the commencement of school Monday (or 10.00am if a non-school day) (or the commencement of school on Tuesday in the event of a public holiday or a pupil free day on a Monday) commencing Thursday 24 November 2022 (“the Father’s weekend”);
(b)Each Thursday from the conclusion of school (or 4.00pm if a non-school day) until the commencement of school Friday (or 10.00am if a non-school day) commencing Thursday 1 December 2022 (noting that on the Thursday before the Father’s weekend the children would be in his care from after school on Thursday until commencement of school on Monday);
During school holidays
(c)For school holidays, excluding December/January holidays, from the conclusion of school until 12pm the middle Saturday with alternate weekends as per order 3(a) to recommence the weekend after school commences;
(d)For the December/January school holidays starting in December 2022 and all even years thereafter from the conclusion of school until 12pm on 26 December (with alternate weekends as per order 3(a) to recommence the weekend after school commences);
(i)For the 2022-2023 December/January school holidays, with the father from 12pm on Monday 16 January 2023 to 12pm on Monday 23 January 2023;
(e)For the December/January school holidays in 2023 and all odd years thereafter from 12pm on 26 December until 12pm on 4 January (with alternate weekends as per order 3(a) to recommence the weekend after school commences); and
(f)At any other time as agreed by the parties in writing.
Special days
4.When Mother’s Day falls during the Father’s time, the children will be returned to the Mother’s care at 10.00am on Mother’s Day.
5.When Father’s Day falls during the Mother’s time, the children will spend time with the Father from 4pm the day before Father’s Day until commencement of school on the Monday after Father’s Day (or 12.00pm if not a school day).
Changeovers
6.Changeovers take place by the parents dropping off at or collecting the children from the children’s school during the school terms and at C Contact Centre for all non-school changeovers at such times as can be facilitated by the contact centre (if there are a range of times available, parties should choose as close to 12.00pm as possible).
Communication
7.The parents communicate with respect to the children as follows:
(a)The parents shall utilise the Talking Parents App to communicate about parenting issues or a mutually agreed similar application directed by any Family Violence Intervention Order.
(b)Each party be restrained by injunction from speaking negatively about the other or any member of his/her household within the hearing or presence of the children or from knowingly permitting another person to do so.
8.In relation to medical matters concerning the children, each of the parties by virtue of these Orders be required to and be at liberty to:
(a)Advise the other immediately in the event either child suffers an illness or injury whilst in their respective care.
(b)The Mother will inform the Father of any appointments or treatment by medical and allied health practitioners within seven days of appointments or treatment occurring
9.In relation to any educational matters pertaining to the children each of the parties by virtue of these Orders be permitted to:
(a)Attend any school function or event to which parents are normally invited including but not limited to sports carnivals, concerts, parent teacher interviews and any other similar occasion;
(b)To receive copies of all documents normally provided by schools to the parents of children including but not limited to reports, newsletters, photographs and any other similar documents; and
(c)Communicate with the children's educators and school staff in relation to the children's educational progress and development.
Section 102NA
10.It is declared that pursuant to section 102NA(1)(a), (b) and (c)(ii) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and both parties are banned from cross examining each other and IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the both parties under the cross-examination scheme.
11.Pursuant to order 10 hereof, the both parties do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable his/her legal representation at Final Hearing.
Appointment of Independent Children’s Lawyer
12.Pursuant to section 68L(2) of the Family Law Act 1975 the children be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:
(a)Forthwith upon appointment by Victoria Legal Aid, the Independent Children’s Lawyer file a Notice of Address for Service; and
(b)Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children’s Lawyer copies of all relevant documents.
Family Report
13.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the children 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 3 April 2023 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.
14.Not later than 4.00 pm on 25 November 2023 the parties must provide their contact telephone numbers and email addresses to [email protected].
15.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.
16.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.
17.The Family Consultant shall be at liberty to inspect any material filed by the parties.
18.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.
Final Hearing
19.The proceedings be adjourned to Tuesday 30 May 2023 at 10.00am for Final Hearing in the May 2023 City B Circuit sittings of the Federal Circuit and Family Court of Australia.
20.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.
21.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.
22.The parties are permitted to rely on documents already filed provided they tell the other parties and the Court they are going to and which documents they will rely upon.
23.The Applicant may file and serve any Amended Application and a trial affidavit and, if relevant, an updated Financial Statement, upon which he seeks to rely by no later than 28 days prior to the Final Hearing.
24.The Respondent may file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which she seeks to rely by no later than 21 days prior to the Final Hearing.
25.The Independent Children's Lawyer file and serve any material on which they seek to rely by no later than 14 days prior to the Final Hearing.
26.Each of the parties be at liberty to file a short affidavit in reply by no later than 14 days prior to the Final Hearing.
27.Each party file and serve a case outline no later than 7 days prior to the Final Hearing and provide a copy in Word format to the associate with the case outline to include:
(a)A list of the application/response and all affidavits to be relied upon including the dates of filing;
(b)A brief chronology of relevant events;
(c)A precise minute of the orders the party is seeking; and
(d)A list of authorities to be relied upon, if any.
AND THE COURT NOTES THAT:
A.After the hearing, parties were emailed as to the issue of an order for the appointment of an ICL and asked if there were any objections to making such an order. The Mother emailed Chambers and indicated that she had no objection to such an order and the Father did not reply. The Court finds that it is appropriate to make such an order.
B.This matter was listed on Monday 14 November 2022 and rolled over to Wednesday 17 November with no orders made as a part of the November City B Circuit..
C.The relevant application referred to in order 10 hereof is available to the parties at 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.
E.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.
F.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.
G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
H.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 Rallis & Eagleson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a short judgment, delivered ex tempore, pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical and repetition errors have been corrected, citations added and an attempt has been made to make the orally delivered reasons easier to read but the substance is unchanged.
The matter comes before me on 17 November 2022 at the City B Circuit sittings of this Court. The parties made submissions regarding a dispute about continuing parenting arrangements, largely over the operation of Thursday night. The Father is 43 years old and works as a factory worker. The Mother is 39 years old and is a health care worker. The parties have two children, aged 7 years old and 5 years old (‘the children’). Both parties represented themselves before me today.
The parties consented to interim orders in February 2022 which provided for the children to live with the Mother and spend alternate weekends with the Father, Friday to Monday, with school to school pickup. There is additional Thursday time, complicated as after school until 6pm, with the children picked up by the Mother from the Father’s home in Town D. The Mother lives in City B, approximately 35 minutes away from the Father.
The Mother alleges an incident of quite significant violence that occurred on 10 June 2022 and following that she was uncomfortable to have changeovers face-to-face with the Father. Following that, it was agreed that changeovers would be at the Town D police station. However, that is not a 24-hour police station and there may or may not be a policeman there and, from the Mother’s perspective, the changeovers are then in the street.
The Father denies all allegations of family violence. Text messages demonstrate an, at times, antagonistic tone from the Father. The Mother’s primary position is that the Thursday night should be scrapped altogether because of the trouble that it causes and that it exposes the children to conflict. The Father says that the answer is to change the Thursday from Thursday after school until Friday before school.
The Mother puts the alternative proposal of the Thursday being added to the weekend. On the basis of the children having spent weekly time with their Father since February 2022, I am of the view that that frequency of time should continue. The parties have been able to demonstrate that the school to school arrangement works and limits conflict between them. The Mother is concerned about the children being unsettled when they come back from the Father’s home and would much prefer that that be only of a Monday once per fortnight.
Balancing all of those things and taking everything into account, I have determined that the children should spend time with the Father from after school on the Thursday until before school on the Friday morning each week, mainly to keep the parents apart.
The law that I must apply in this matter on an interim hearing is set out, and I have to indicate that I will apply all of Part VII of the Act, and I will not recite the sections, but I must apply the pathway of Goode & Goode [2006] FamCA 1346. The pathway is set out as follows:
72.In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children's lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Those principles are qualified by the observation of the Full Court in Eaby & Speelman (2015) FLC 93-654 as follows:
18.…It is true that in Goode & Goode, at [68], the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. Rather, the proper approach to contentious matters of fact in the determination of interim hearings is as explained in Marvel v Marvel, at [122] and [123], as follows:
[122]In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Hence, I am unable of this interim hearing to resolve the dispute and make a factual finding about the incident on 10 June 2022, but I do not ignore it or find that it did not occur.
I will make an order that section 102NA of the Act applies, fix the matter for final hearing in May 2022 at the City B Circuit and order a Family Report pursuant to section 62G of the Act. I will also make orders for special occasions and school holiday times as sought by the Mother, which the Father did not oppose. I will make orders in terms of paragraph 3 of her final orders as interim orders. All of these orders are until further order. There will also be the additional school holiday time with the Father from Monday, 16 January 2024 to Monday, 23 January 2024.
I will make the further order that both parents do all things to immediately enrol at a contact service for changeovers of non-school changeovers and I will also need to fix a time for the changeovers of those non-school changeovers. It is going to be at a time that is convenient to the contact service and, alternatively, if there is arranged times, it should be at 12:00pm (noon) on those changeover days. The reason I am doing that is because I am concerned at the risk of the children being exposed to conflict and violence between the parents in a situation where each makes allegations against the other and I cannot determine which one of them is correct or whether they both are, and because that conflict is my major concern at the moment. I accept and appreciate that that will involve the Father in doing more travel than the Mother on those rare occasions of school holiday changeovers.
Those are my reasons.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 20 December 2022
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