Read & Pollard
[2021] FedCFamC2F 693
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Read & Pollard [2021] FedCFamC2F 693
File number: MLC 4266 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 17 December 2021 Catchwords: FAMILY LAW – Interim parenting – parental conflict – ruling as to orders made – court recalled that day prior to orders being taken out – further submissions and different orders made for youngest child with special needs. Legislation: Family Law Act 1975 (Cth) Cases cited: Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256
Valda June Kerrison v NSW Technical and Further Education Commission [2007] NSWIRComm 140Division: Division 2 Family Law Number of paragraphs: 32 Date of hearing: 17 December 2021 Place: Melbourne The Applicant: Appeared In Person Counsel for the Respondent: Mr M O’Grady Solicitor for the Respondent: Cantwell Family Lawyers ORDERS
MLC 4266 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS READ
Applicant
AND: MR POLLARD
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
17 DECEMBER 2021
THE COURT ORDERS THAT:
BY CONSENT:
1.All previous parenting order are discharged.
Parental Responsibility
2.The parents shall have equal shared parental responsibility for:
(a)X born in 2004 ("X");
(b)Y born in 2007 ("Y"); and
(c)Z born in 2013 ("Z")
(collectively "the children")
Children's Living Arrangements
3.The children shall live with the mother:
Children's Spend Time Arrangements
4.The children will spend time with the father on a 4 week repeating pattern.
5.X spend time with the respondent:
(a)In Weeks 1 (commencing Saturday 18 December 2021) and Weeks 3 on Saturday at 9:00am until the Sunday that immediately follows it at 6:00pm.
(b)In accordance with the alternating pattern in order 7;
(c)At other times that X wishes; and
(d)Any other times agreed between the parties in writing via TRUCE application.
6.Y spend time with the Father:
(a)In Weeks 1 and 3 Saturday at 9:00am until the Sunday that immediately follows it at 6:00pm.
(b)In accordance with the alternating pattern in order 7; and
(c)Any other times agreed between the parties in writing via TRUCE application.
7.In Week 4 on Sunday;
(a)Commencing with X on his own and then alternating between each child on their own on every time Week 4 occurs;
(b)Between 9:00am to 6:00pm.
BY THE COURT:
8.X and Y will spend further time with the father at Christmas time:
(a)In odd years (commencing with 2021) from 9:00am on 26 December until 9:00am on 2 January in the new year; and
(b)In even years (commencing with 2022) from 9:00am on 26 December to 5:00pm on 27 December and from 5:00pm on 1 January in the new year to 5:00pm on 8 January.
9.Z spend time with the Father:
(a)On Sunday 19 December 2021 from 1.00pm to 6.00pm;
(b)On Sunday 26 December 2021 from 9.00am to 6.00pm;
(c)On Saturday 1 January 2021 from 9.00am to 1.00pm;
(d)On Monday 3 January 2021 from 9.00am to 1.00pm;
(e)On Wednesday 5 January 2021 from 9.00am to 6.00pm;
(f)On Friday 7 January 2021 from 9.00am to 6.00pm on Saturday 8 January 2021;
(g)On 14 January 2021 from 9.00am until 6.00pm on Saturday 15 January 2021;
(h)On Wednesday 19 January 2021 from 9.00am until 6.00pm on Friday 21 January 2021.
10.From the commencement of school term in 2022, Z will spend time with the Father at the same time as Y and in accordance with the provisions of order 7 (the one on one time each four weeks).
BY CONSENT:
11.The children will spend time with each parent at Easter as follows:
(a)With the father in even years (commencing with 2022) from 9:00am on Good Friday to 6:00pm on Easter Monday.
(b)With the mother in odd years (commencing with 2023) from 9:00am on Good Friday to 6:00pm on Easter Monday.
BY THE COURT:
12.The children will spend 2 further weeks with the father during the calendar year during school holidays by agreement. In default of agreement the children will spend time with the father:
(a)From 9:00am on the date 4 weeks after the children's last day of school in December for a period of 7 days and being in January 2022 from 9.00am on 14 January 2022 to 6.00pm on 21 January 2022; and
(b)For 7 continuous days in the second term holiday of the school year commencing at 9:00am on the day after the children finish school.
BY CONSENT:
13.The children will spend Father's Day weekend with the father if they are not to otherwise be in his care from 9:00am on the Saturday preceding Father's Day to 6:00pm on Father's Day.
14.The father's time with the children be suspended if it falls on any of the following:
(a)At 9:00am on the Saturday preceding Mother's Day until 6:00pm on Mother's Day;
(b)6:00pm on 24 December until 9:00am on 26 December;
(c)There shall be no more than 4 additional occasions in total in each calendar year (excluding Mother's Day and Christmas Day) on which time spent in Weeks 1 and 3, above, may be suspended so that the children may have a holiday (out of the Melbourne metropolitan area) with the mother. For the avoidance of doubt that is a total of 4 occasions of Weeks 1 and 3 in any combination of those weeks. On these occasions there shall be make-up time with Weeks 1 and 3 taking place on other dates when the children would not normally spend time with the father under these orders.
Changeover
15.For the purposes of changeover, unless otherwise agreed between the parties in writing (including text message), the applicant will deliver the children to the main entrance of the Bank at B Shopping Centre where the respondent will collect them at the beginning of spend time. At the end of spend time the respondent will deliver the children to the main entrance of the Bank at B Shopping Centre where the applicant will collect them.
Communication
16.Each of the applicant and the respondent facilitate X and Y communicating with the other parent by telephone or video as agreed between them in via TRUCE (using FaceTime or such other technology as the parties may agree upon in writing), and failing agreement, via telephone, at all reasonable times X and Y are in their care respectively, upon the reasonable request of X and Y.
17.Each parent shall allow the other parent to call and communicate with each child at all reasonable times when that child is in their care.
18.The children may call or communicate with each parent when they are not in that parents' care.
19.Unless otherwise agreed in writing, the applicant and the respondent communicate with one another using TRUCE app. The respondent to be responsible for paying for the cost of the subscription.
Non Denigration
20.Each party and their agents are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other, or any member of the other parties' family, to, or in the presence of, or within earshot of, the children and allowing the children to remain in the presence of, or within earshot of, any third party engaging in such behaviour; and
(b)discussing these proceedings, and/or negotiations about parenting matters, with, or in the presence of, or within earshot of, the children and allowing the children to remain in the presence of, or within earshot of, any third party engaging in such behaviour save for explaining living and other arrangements pursuant to these orders.
Intervention Order
21.Pursuant to sections 68P and 68Q of the Family Law Act 1975 (Cth) this order prevails over any family violence order to the extent of any inconsistency AND FURTHER the purpose of these Orders is to promote the best interests of the children and to promote the children having a meaningful relationship with both parents.
Health and Medical
22.The mother and father shall:
(a)forthwith inform the other of any serious illness, injury, accident or emergency in relation to the children;
(b)keep the other informed as to any serious illness, accident, hospitalisation or medical condition with respect to the children while they are in that parent's care and keep the other informed of any recommended treatment and medication to be taken by the children;
(c)forthwith provide the other with copies of any reports or records provided to them respectively by any hospital or medical, dental or other health professional attended by the children;
(d)as soon as reasonably practicable give notice to the other parent of any appointment made for the children of a non-urgent nature;
23.The mother and father both have permission and be and are authorised to obtain from any medical or health professional any report or record concerning the children and these stand as such authority.
24.The mother and father may provide a copy of these orders to any health of medical professional in order to obtain any information, medical record concerning the children.
Schooling
25.(a) The mother and father are permitted to attend all school and extra-curricular events to which a parent would ordinarily be invited (including debutante balls, sporting events and dancing competitions).
(b) Notwithstanding any other provision in these orders, the father be and is restrained from attending the function known as "the debutante ball" where X will partner a friend.
26.The mother and father are permitted to obtain any record and information concerning the children from any school or extra-curricular activity at which the children attend or have attended.
27.The mother and father may provide a copy of these orders to any school or extra-curricular activity provider to obtain copies of reports and records.
Costs:
28.The Fathers costs be reserved.
Dispute Resolution Conference - Parenting
29.Pursuant to Section 13C(1)(b) of the Family Law Act 1975 (Cth), the parties and their legal representatives (if any) shall attend:
(a)Part 1 of the confidential Court-based Family Dispute Resolution (FDR) Conference with a Registrar (as Family Dispute Resolution Practitioner) on a date to be fixed requested to be as soon as possible (before 18 March 2022), with each party to attend separately at times to be advised; and
(b)Part 2 of the confidential Court-based FDR Conference on a date and at a time to be fixed but not later than 7 days after the date referred to in order 28(a).
30.The matter shall be referred to the Executive Director of Dispute Resolution for allocation and listing of the FDR Conference dates.
31.Any party who has not previously provided the Court with an email address must provide the preferred email address (and include details of the file name and Court file number) to [email protected] within 2 days of the making of these orders.
Part 1 of the FDR Conference
32.Part 1 of the confidential FDR Conference shall proceed by telephone and each party must, within 2 days of receiving notification of the dates of each part of the FDR Conference, notify the Court by email of their best contact telephone number (and include details of the file name and Court file number).
33.Unless otherwise directed by the Registrar conducting the FDR Conference, the Independent Children's Lawyer's appearance shall be excused from Part 1 of the FDR Conference.
34.Not later than 4.00 pm 7 days prior to Part 1 of the FDR Conference, each party must:
(a)ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 have been exchanged;
(b)ensure that any private expert report that is relevant to the proceedings has been filed;
(c)provide to the Court by email and to the other party a single collated bundle of documents comprising:
(i)a Confidential Outline of Case (Dispute Resolution);
(ii)a detailed minute of Orders Sought;
(iii)details of any previous or current family violence orders; and
(iv)a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted).
FDR Conference
35.The parties and the shall otherwise comply with any other necessary order, direction or request made by the Registrar to facilitate the FDR Conference.
36.The Registrar may vacate the FDR Conference in the event:
(a)of non-attendance by either party at Part 1 of the Conference; or
(b)that pursuant to Regulation 29 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008, the Registrar is no longer satisfied that the conference is appropriate.
Family Report
37.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the children X born in 2004, Y born in 2007 and Z born in 2013 ('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 29 July 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.
38.Not later than 4.00 pm on 24 December 2021 the parties must provide their contact telephone numbers and email addresses to [email protected].
39.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.
40.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.
41.The Family Consultant shall be at liberty to inspect any material filed by the parties.
42.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:
43.The proceedings be adjourned to 26 September 2022 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.
44.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.
45.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.
46.No later than 21 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.
47.No later than 14 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.
48.No later than 7 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
49.No later than 2 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;
50.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.
51.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.
52.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.
53.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.
54.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.Unless it is agreed between the parties, it is too early in the resumption of time to make special arrangements for birthdays.
B.The Executive Director Dispute Resolution shall have regard to the following when fixing a date for the FDR Conference:
(a)this matter requires a full day conference;
(b)this matter requires the involvement of a Court Child Expert (as Family Counsellor) in the FDR Conference.
C.The dates and times fixed for all parts of the FDR Conference will be emailed to the parties and their legal practitioners, including any Independent Children's Lawyer, at the email address noted on the Court file or provided in compliance with these orders.
D.Documents required to be provided to the Court pursuant to these orders must be emailed to the Court via the email address for the Registrar's Case Manager as indicated in the email confirming the FDR Conference dates and times.
E.Not later than 4.00pm 7 days before the FDR Conference date, the lawyer for each party must give the party for whom they act a written notice of:
(a)the party's actual costs, both paid and owing, up to and including the Family Dispute Resolution Conference; and
(b)the estimated future costs of the party up to and including each future court event, including trial; and
(c)any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of the expenses.
F.For the purposes of the Family Dispute Resolution Conference, the parties are referred to s 131 of the Evidence Act 1995 (Cth) and ss 10J and 10H of the Family Law Act 1975 (Cth) and to the Court's Family Dispute Resolution Fact Sheet.
G.The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the FDR Conference only. It is not to be filed or relied upon after the conclusion of the conference.
H.Part 1 of the FDR Conference is the first part of the Conference and is confidential. The other party will not be in attendance.
I.The FDR Conference is an opportunity for the parties to make a genuine effort to resolve their parenting dispute in a confidential, child focussed setting. The parties are to be resolution focussed and respectful during negotiations, and to be mindful of the financial and emotional costs associated with prolonged litigation.
J.The structure and duration of the FDR Conference will be at the discretion of the Registrar and will vary depending on the nature of the issues for consideration. Unless otherwise advised:
(a)parties and their legal representatives in half day conferences are expected to be available until at least 1.00pm and at the specific times requested by the Registrar; and
(b)parties and their legal representatives in full day conferences are expected to be available for the entirety of the day and at the specific times requested by the Registrar.
K.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.
L.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.
M.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.
N.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
O.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 Read & Pollard 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 mother is Ms Read (‘the Mother’) and the respondent father is Mr Pollard (‘the Father’). This matter comes before me on an interim hearing, and it is now nearly quarter to 4 on a Friday afternoon, I must determine what time the children, X, Y and Z (‘the children’), spend with their father. The parents commenced to live together in about 2003 and separated at some time later.
X is 17. He has been diagnosed with high functioning autism and X regards himself as a "normal bloke" who wants to finish this year at school and then undertake a trades course at C College. Hopefully, as X gets older his own opinion of himself becomes more and more correct. Y is 14 and Z is only eight. Z also has been assessed as being on the autism spectrum disorder. Z's verbal abilities were such that she was unable to be interviewed for the purpose of the section 11F child inclusive conference memorandum (‘the child inclusive memorandum’) that I will address later. The child inclusive memorandum was undertaken via Microsoft Teams, as was this hearing, we being in COVID-19 times.
I should say further, the parents make allegations of violence against each other. On an interim I am prohibited as a matter of law of making judgments on which is more likely to have occurred than the other. I am required as a matter of law to take allegations of family violence very seriously, and I do.
The orders that the Father seeks are:
Previous Parenting Orders
1. All previous parenting order are discharged.
Parental responsibility
2. The parents shall have equal parental responsibility for:
(a) X born in 2004 (“X”);
(b) Y born in 2007 (“Y”); and
(c) Z born in 2013 (“Z”)
(collectively “the children”)
Children’s living arrangements
3. The children shall live with the mother:
Children’s spend time arrangements
4. The children will spend time with the father on a 4 week repeating pattern.
5. X spend time with the respondent:
(a)In Weeks 1 and 3 on Saturday at 9:00am until the Sunday that immediately follows it at 6:00pm.
(b) In accordance with the alternating pattern in order 7;
(c) At other times that X wishes; and
(d)Any other times agreed between the parties in writing via TRUCE application.
6. Y and Z spend time with the respondent:
(a)In Weeks 1 and 3 Saturday at 9:00am until the Sunday that immediately follows it at 6:00pm.
(b) In accordance with the alternating pattern in order 7; and
(c)Any other times agreed between the parties in writing via TRUCE application.
7. In Week 4 on Sunday;
(a)Commencing with X on his own and then alternating between each child on their own on every time Week 4 occurs;
(b) Between 9:00am to 6:00pm.
8. The children will spend further time with the father at Christmas time:
(a)In odd years (commencing with 2021) from 9:00am on 26 December until 9:00am on 2 January in the new year; and
(b)In even years (commencing with 2022) from 9:00am on 26 December to 5:00pm on 27 December and from 5:00pm on 1 January in the new year to 5:00pm on 8 January.
9. The children will spend time with each parent on each of the children’s birthday, if they are not otherwise with that parent under these orders as follows:
(a) If the birthday falls on a school day between 5:30pm and 8:30pm; and
(b) If the birthday falls on a non-school day between 12 noon and 5:00pm.
10. The children will spend time with each parent at Easter as follows:
(a)With the father in even years (commencing with 2022) from 9:00am on Good Friday to 6:00pm on Easter Monday.
(b)With the mother in odd years (commencing with 2023) from 9:00am on Good Friday to 6:00pm on Easter Monday.
11.The children will spend 2 further weeks with the father during the calendar year during school holidays by agreement. In default of agreement the children will spend time with the father:
(a)From 9:00am on the date 4 weeks after the children’s last day of school in December for a period of 7 days; and
(b)For 7 continuous days in the second term holiday of the school year commencing at 9:00am on the day after the children finish school.
12.The children will spend Father’s Day weekend with the father if they are not to otherwise be in his care from 9:00am on the Saturday preceding Father’s Day to 6:00pm on Father’s Day.
13.The father’s time with the children be suspended if it falls on any of the following:
(a)At 9:00am on the Saturday preceding Mother’s Day until 6:00pm on Mother’s Day;
(b) 6:00pm on 24 December until 9:00am on 26 December;
(c)There shall be no more than 4 additional occasions in total in each calendar year (excluding Mother’s Day and Christmas Day) on which time spent in Weeks 1 and 3, above, may be suspended so that the children may have a holiday with the mother. For the avoidance of doubt that is a total of 4 occasions of Weeks 1 and 3 in any combination of those weeks. On these occasions there shall be make-up time with Weeks 1 and 3 taking place on other dates when the children would not normally spend time with the father under these orders.
THE COURT FURTHER ORDERS THAT:
Changeover
14.For the purposes of changeover, unless otherwise agreed between the parties in writing (including text message), the applicant will deliver the children to the main entrance of the Bank at B Shopping Centre where the respondent will collect them at the beginning of spend time. At the end of spend time the respondent will deliver the children to the main entrance of the Bank at B Shopping Centre where the applicant will collect them.
Communication
15.Each of the applicant and the respondent facilitate X and Y communicating with the other parent by telephone or video as agreed between them in via Our Family Wizard (using FaceTime or such other technology as the parties may agree upon in writing), and failing agreement, via telephone, at all reasonable times X and Y are in their care respectively, upon the reasonable request of X and Y.
16.Each parent shall allow the other parent to call and communicate with each child at all reasonable times when that child is in their care.
17.The children may call or communicate with each parent when they are not in that parents’ care.
18.Unless otherwise agreed in writing, the applicant and the respondent communicate with one another using TRUCE app. The respondent to be responsible for paying for the cost of the subscription.
Non-Disparagement and Intervention Order
19. Each party and their agents are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other, or any member of the other parties’ family, to, or in the presence of, or within earshot of, the children and allowing the children to remain in the presence of, or within earshot of, any third party engaging in such behaviour; and
(b)discussing these proceedings, and/or negotiations about parenting matters, with, or in the presence of, or within earshot of, the children and allowing the children to remain in the presence of, or within earshot of, any third party engaging in such behaviour save for explaining living and other arrangements pursuant to these orders.
20.All and any communication between the mother and father and the father and the children further to the terms of these orders and any meeting between the mother and father and father and children further to the terms of these orders is to take precedence over any order of a State Court prohibiting such communication and meeting.
Health and Medical
21. The mother and father shall:
(a)forthwith inform the other of any serious illness, injury, accident or emergency in relation to the children;
(b)keep the other informed as to any serious illness, accident, hospitalisation or medical condition with respect to the children while they are in that parent’s care and keep the other informed of any recommended treatment and medication to be taken by the children;
(c)forthwith provide the other with copies of any reports or records provided to them respectively by any hospital or medical, dental or other health professional attended by the children;
(d)as soon as reasonably practicable give notice to the other parent of any appointment made for the children of a non-urgent nature;
22.The mother and father both have permission to obtain from any medical or health professional any report or record concerning the children.
23.The mother and father may provide a copy of these orders to any health of medical professional in order to obtain any medical record.
Schooling
24.The mother and father are permitted to attend all school and extra-curricular events to which a parent would ordinarily be invited (including debutante balls, sporting events and dancing competitions).
25.The mother and father are permitted to obtain any record and information concerning the children from any school or extra-curricular activity at which the children attend or have attended.
26.The mother and father may provide a copy of these orders to any school or extra-curricular activity provider to obtain copies of reports and records.
Procedural
27. Insert
Obligations, consequences of contravention and assistance with orders
28.Pursuant to s.65DA(2) and s.62B of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The dispute between the parties at this point in time comes down to whether or not Z should attend with X and Y on the alternate weekend time with them and whether Z should attend the, what I will call special or one-on-one time that the Father seeks, on one in four of what would otherwise be the Mother's uninterrupted weekend.
The orders the Mother seeks in regard to Z is that the regime for X and Y, which is agreed, should continue for a further three fortnights or approximately six weeks, and then following a period of consultation and conferral between the Mother and the Father that then the parties attempt to reach agreement about the extent to which Z should be engaged with her siblings in time with the Father. I assisted the Mother with some drafting and it would appear the effect of the orders that she seeks is more or less as follows.
After a further three occasions of the time for Y and Z, as provided in these orders, then the parties confer as to the extent to which Z should participate in these orders, and then following those discussions, in the event that the Mother advises the Father that she is satisfied that he has a better understanding of Z, then that time commenced for Z on a non-overnight basis, daytime only from 9am to 6pm.
The further dispute between the parties is whether or not the Father should be permitted to attend X's special occasion when he partners his girlfriend in what is expected to be her debutante ball. That parties' positions, of course, assume that the teenage affection that X and the teenager described as his girlfriend remains on foot sufficient for that partnering to occur. I have already indicated in discussion with the Mother that she did not need to address me further, as given the range of matters that the parties are in disagreement about, I am not satisfied that the parents should be in the same room at such an intimate function. The information about the proposed debutante ball of X's friend is limited and, on one view, it may be only a very private function with one debutante being only X's friend. It's not clear to me that that necessarily will be the case, but I am satisfied that both parents cannot be present. I acknowledge Mr O'Grady's articulate submissions on behalf of the Father that this is the sort of event that would be important for X to share with his Father.
The tragedy of these children's lives is such is the antipathy between them that there is a dispute as to whether they can be in the same room at the deb ball. I have a hope that the parties will be able to, in the words of the well-known radio show, have a good hard look at themselves and comprehend the grief that they will bestow upon their children by the continued disagreement about such matters. The deb ball will be only one of many such events.
There will be school graduations, extracurricular activities, special days, housewarming parties, engagement parties and possibly weddings. What we do not yet know is whether these children will have to forego such public occasions because of the grief and trouble of trying to organise, “Where do we put Mum? Where do we put Dad? Can we have them in the same room at the same function?” That is going to stretch out over these children's lives for something like the next 10 to 20 years. There may be then naming ceremonies or baptisms, but at the moment, it bodes poorly for the happiness of those children, because they are going to have to make on each and every occasion the decision, “Will we have mum here or will we have dad or will we even tell the other side of the family”, (that is the in-laws), “Will I even tell them about the unhappy situation in my family that is so bad that I cannot invite both of them to whatever the event is”.
The parties commenced litigation in April 2021. The matter came before a registrar on 17 June 2021. A child-inclusive conference pursuant to section 11F of the Family Law Act 1975 (Cth) (‘the Act’) was ordered and the matter was adjourned to 12 November 2021. In addition to that, the parties were ordered to attend a conciliation conference, and they did on 1 September 2021 and the property dispute that they had resolved and the parties made consent orders.
The parties attended the child-inclusive conference on 8 October 2021 and there is a memorandum prepared about that. Following that child-inclusive memorandum, on 12 November 2021 the matter came on for mention and the parties reached consent orders in regard to the time that X and Y should spend with the Father on the basis of a holding provision until the matter could come before me for defended hearing.
The Father has sworn a further affidavit on 7 December 2021, but before I come to that I want to go to the Mother's affidavit of 15 July 2021. The Mother deposed at paragraph 5 that following separation the children, in April 2019, that the children continue to live with her and, occasionally, had time with the Father. In regard to Z, the Mother deposed that in the past, Z required extra attention and care, as she was non-verbal until the age of four years. Z requires visual schedules for all activities during the day, for an example, when it is time for dinner, “I need to have the card with a kitchen set in to show her”. The Mother claims in her affidavit that she took fully responsibility for all decisions relating to Z.
The Mother claims that the Father was financially controlling during the relationship and following. She also claims at paragraph 19 that the Father's violent behaviour escalated towards her following separation. The Mother described incidents of significant family violence. The Father denies them and, indeed, accuses the Mother of having assaulted him causing a black eye. The Mother, however, deposes at paragraph 25:
25.After separation I tried to get Mr Pollard to commit to having the children regularly instead of when it suited him, but this has led to continuous arguments whenever he would agree to spend time with the children however not show up. I encouraged Mr Pollard to come over and have dinner with the family however when he would arrive he would cause an argument and shortly leave.
She also deposes that she was worried about the risk to the children of further aggression from the Father. In paragraph 31 she describes, in September 2020, that the children did spent several nights with the Father just prior to the time of great sadness to her of her father's death, and he being in palliative care at the time. The bottom line is that the children, and Z, in particular, have not spent time with the Father since February of 2021.
The Mother complains at paragraph 34 of her affidavit that earlier in the year the children have told her on several occasions that they have texted the Father to visit him; however, he has responded that he was at work and that they seemed disappointed from not being able to spend time with him.
The Mother also deposes at paragraph 41 that she accepts that the Father should be meaningfully involved in the children's lives; however, she worries that he does not understand the children's emotions, especially X and Z, because they must be addressed in a sensitive way.
The Mother also deposes that she would like the children's time to be more flexible by agreement between the Father and her, but after they have made efforts through post-separation counselling. The Mother also deposes that she has tried to encourage the children to maintain contact with their Father; however, this has been difficult because they have been expecting to see him and then the plans are cancelled at the last minute by the Father. The Father denies such allegations.
At this point of my ex tempore reasons I told the Father that:
He does not assist me in my decision by gesturing on the camera. You would not do it in the courtroom. Do not do it when I am providing the privilege of having you appear via video-link.
The Father has then deposed in a further affidavit, essentially, denying each and every allegation. He also demonstrates some sensitivity to the children's individual needs and he deposes at paragraph 23 and 24 as to those matters and those paragraphs are recited below:
23.I do not accept that I played any favourites with the children. I love all my children and I accept all their own idiosyncratic qualities. I cherish them all and only want them to be part of my life again and enjoy and restore the relationship that we once all had together.
24.I say that when both X and Z were initially diagnosed I did grieve and also irrationally blamed myself but this was only an initial reaction but in no way diluted my love and affection for my children. I have made enquiries of Autism Victoria to participate in their program "Raising Children" to learn more about parenting children on the autism spectrum and enrol in the program. I have also made enquiries about the Parenting Orders Program and intend to enrol in the D Family Centre program at Suburb E.
The Father tells me, and I cannot contradict that those courses that he intends to attend, he cannot get into them until 2022. The section 11F report by Court Child Expert F, is a significant information and assists me in this matter. Relevant paragraphs of the section 11F report include:
25.Ms Read presented with anger and resentment towards the father that the children have had reduced opportunity for basic essentials, extracurricular activities and health/dental care due to his limited financial support. Mr Pollard denied that this was intentional and due to his own financial limitations.
26.Of strength is that both parents presented at interview as respectful of the other, with a child focus and some capacity for parental reflection. Mr Pollard agreed to engage with parenting programs and engage with support services at the advice of the Court.
CHILDREN:
27.X was diagnosed with high functioning autism and sensory processing disorder in 2014 at the age of 10. Ms Read advised that X has had National Disability Insurance Scheme (NDIS) funding for many years however he has struggled with his diagnosis and has been resistant to therapeutic support. Ms Read advised that X and Z are eligible for psychology and occupational therapy however are on waiting lists via NDIS.
28.X described himself as a ‘normal bloke’ who is in year eleven and plans to finish the year and then study at C College. X reported that he was shocked when his parents decided to separate permanently even though they argued often. X advised that he does not see his father currently as his mother did not want them having any contact. He thought that that may have been because his mother felt as though the contact was impacting on his mental health. X advised awareness of the parental and financial/property disputes and advised his opinion that the recent property settlement was unfair on his mother.
29.X advised that both of his parents did not react well to the loss of the relationship and both tried to talk bad about each other is using “snarky” comments about each other. X advised that his relationship was strained with his father as his father did not understood him and showed favouritism towards Y. X suggested parenting course may help his father communicate better with him and Z. X advised that he would like to reconnect with his father, starting off with text messages and then if he shows that he can put in effort to get to know him, understand him and to prioritise him then he is agreeable to spend time starting again.
…
31.Y advised that she wishes to see her father again as soon as possible and that she is not currently seeing him as her mother thinks she should wait until her father “gets help”. Y was clear that she feels safe with her father and has a close relationship with him and she advised that not seeing him has been upsetting and she did not believe that he had done or said anything the meant she should not see him.
…
33.Based on the children’s narratives, both parents are likely to have involved the children in their narratives of grief and loss issues related to the separation and property/financial matters. Given X and Y’s ages, and ability to seek out information, it has likely been challenging for the parents to protect them from awareness of the adult matters. Regardless, awareness of the disputes has impacted on their wellbeing and sense of security and the children require protection from this moving forward otherwise it will likely eventually lead to significant issues within both parent child relationships.
…
36.Although the children acknowledge times in the past where their father’s frustration and response to them has caused them to feel a reduced sense of safety, this does not appear to be a situation where X and Y are resisting or refusing spend time. Instead they have respected their mother’s wishes for them to cease contact.
…
38.X presented as highly insightful and he will benefit from being afforded the opportunity to attend spend time according to his views.
39.Given her views and emotional impact experiences by not seeing her father, Y is likely to benefit from spend time resuming as soon as possible.
(emphasis added)
In regard to Z, the situation is more difficult. I do not have any reliable information about what Z's wishes are and she is only eight. The Mother has told me today, and I accept, that Z has a good relationship with X and Y, although there is the potential for conflict between X and Z because of their different personalities, and she demonstrates a very insightful and sensitive view of the personalities of X and Z.
The report writer opined that it is likely that Z will benefit from having the opportunity to maintain a meaningful relationship with the Father via predictable spend time arrangements. The Mother agreed to that concept when I asked her about that paragraph in the section 11F report; however, the Mother seeks that the Father have a better understanding of Z's individual circumstances, and that she is concerned that he does not understand and follows the steps that she finds assists her deal with Z.
There is an irony in the Mother's case that despite stating that she wishes the Father to have a role in the children's lives, she has been unable to work out how to promote that. I then have the statements that X, in particular, has made and that Y has made in regard to their Mother's attitude to them spending time with the Father. In regard to X's personality, I am going to call it personality, because he regards himself as a normal bloke and I want to respect that. Because of X's personality, it is clear, and Y and Z's circumstances, that it has been necessary for the Mother to have a very strong role within that household and within their lives. The consequence of that, on the face of the section 11F report, is that it is clear that the Mother’s strong role in the children's lives has meant that the children are very sensitive to her views of the Father. Whether it is due to the ages of the children or each of the parents, or either or both of them, sharing more information about the parental dispute with the children than what is in the children's interests, X, Y and I expect Z are aware that the Mother does not want them to spend time with the Father on the same terms that the Father does. Regardless of how that situation has come about, that is what the children have reported to the section 11F report writer.
The family is in a logjam and simply does not know how to move forward. Balancing all of the matters of Part VII of the Act and all of the evidence, but placing the most weight of any of the evidence I have on the section 11F report it is, save for the issue of the debutante ball, which I have already dealt with, it is my determination that the orders should be made in the form of the orders as sought by the Father. That is save for this circumstance. It is Friday afternoon. The Father's weekend, in the ordinary rotation is this weekend. I am not satisfied that it is in Z's interest that that time starts tomorrow morning without the Mother having the opportunity to prepare Z for that time.
These orders are not negotiable and the Mother needs to understand that the obligation on the Father is that he is not going to turn up for these orders when it suits him, but he is to turn up for these orders on each and every occasion. From what he has told me he has every intention to do so. Neither parent has, pursuant to these orders, the ability to impose upon the other party their view of whether the order happens or not.
I am concerned that the Mother’s allegations that the Father has been inconsistent in turning up. It is a very valid point that all of the children's time, but particularly for X and Z, must be consistent.
I have indicated to the parties the orders that I would make including the orders concerning Z. Before those orders were taken out, and a few minutes later, I looked again at the section 11F report recommendations concerning Z and was concerned that I had not adequately considered those recommendations. I recalled the parties and the hearing continued. The following passage of comment and submissions occurred:
His Honour: Thank you. Thank you for coming onboard. I apologise to the parties for this inconvenience. However, I have been looking at – I haven’t actually made the orders yet. In terms of the orders that I advised you that I intended to make, I’m revisiting the 11F report. I’m concerned that I haven’t given sufficient attention to paragraph 43(c) of the 11F report that relates to Z. And I will just read that out for you, because I don’t expect you to remember it. Paragraph 43 says:
Consideration be given to spend time arrangements resuming
Y, X, and then (c):
Z to resume spend time gradually with small amounts of time initially progressing to a consistent spend time schedule. Given Z’s individual needs and younger age, she may require different spend time arrangements to her siblings.
(see: line 31-46 of p. 2 of the extract of transcript of 17 December 2021)
The Father opposed the gradual time recommendation for Z and made the following submission:
Mr O’Grady: Well, my submission is the recommendation is qualified by the limitations of the report-writer’s interactions with Z. The report-writer hasn’t even met Z, spoken to her. It’s not apparent that the recommendation is based on anything other than what has been reported by the mother. And in my submission, there aren’t barriers, actual barriers, other than the hypothesis within the report that would prevent spend time being successful, as your Honour has already contemplated. There is no – essentially there is no – it is a hypothesis that that is the case. There isn’t actually anything which that hypothesis hangs itself on other than that Y has autism, she has communication issues
…
Mr O’Grady: There are communication issues so far as the relationship with the father is concerned. That’s likely to be a successful one, and in my submission she will – she will adapt to it in the presence of her siblings.
(see: line 15-35 of p. 3 of the extract of transcript of 17 December 2021)
I asked the Mother for submissions about the gradual re-introduction of time for Z and she told me: “I don’t know” (and went on to complain about the Father’s accommodation). I then made the following ruling:
His Honour: Yes, thank you. All right. I just want to give you the opportunity to deal with this, and you might need to take further instructions. And one of the difficulties, Ms Read supports the concept of gradual that’s in the orders; Mr Pollard opposes it. They’re each entitled to have that position. But Ms Read does not give me precise orders, so I – because I’m bound to act in the best interests of the children, I will need to make my own proposal. But I don’t want to impose it on Mr Pollard without him having the opportunity for limited reflection, given that it’s five past 5, and I don’t want to have him going to the expense of having to come back on another day.
(see: line 42 of p. 7 to line 3 of p. 8 of the extract of transcript of 17 December 2021)
The Father’s counsel and the Mother made further submissions as to my proposal and refined practical issues as to change over times. I then made orders.
In these settled reasons I add a short comment on the power to reopen orders that has been pronounced but not “perfected” or “entered” or “taken out”. At common law a court had power to correct or alter judgement or orders before that judgement was entered perfected. See a useful summary in Valda June Kerrison v NSW Technical and Further Education Commission [2007] NSWIRComm 140 relying on Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 265 per Brennan, Dawson, Toohey and Gaudron JJ and Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 per Brennan J at 308, per Dawson J at 317, per Gaudron J at 322. Such an event is “extremely rare”. There is a public interest in the finality of litigation and hence the power to re-open to enable a rehearing or further submissions will be exercised with great caution. Where a judgment or order has been formally entered or “perfected”, or in the practice of this court “taken out” the only avenue is an appeal or whatever other statutory provision may apply.
In the circumstances where my Associate was still typing the order pronounced I was satisfied the orders had not been perfected or entered or taken out and hence provided there was good and substantial reason, like important evidence being overlooked by the Judge or not referred to at all by the parties, I had the power to reopen the case. Further the evidence that had been overlooked and/or not referred to was significant and the overarching command of the Act is to make such orders as are in the best interests of the children. The overlooked or not referred to evidence was significant as to the best interests of the child Z and I determined in that circumstance that I should reopen the case to seek submissions on that evidence and I did there and then. I made different orders that were taken out and emailed to the parties soon after.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 16 February 2022
0
4
0