FEDERAL CIRCUIT COURT OF AUSTRALIA
| REDLICH & DEMIR | [2020] FCCA 1757 |
| Catchwords: FAMILY LAW – Interim hearing – parenting proceedings – where allegations of family violence – where family violence found – where family violence can be mitigated by appropriate orders – where parental responsibility shared in some aspects only. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 13C 60B, 60CA, 60CC, 61DA, 63C, 65D, 65DAA, 65DAB. |
| Cases cited: M & M (1988) FLC 91-973 A & A & The Child Representative (1998) 22 FamLR 756 |
| Applicant: | MR REDLICH |
| Respondent: | MS DEMIR |
| File Number: | SYC 6160 of 2018 |
| Judgment of: | Judge Morley |
| Hearing date: | 14 August 2019 |
| Date of Last Submission: | 14 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 22 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Snelling |
| Solicitors for the Applicant: | Stamford Law Pty Ltd |
| Solicitors for the Respondent: | Mr Frost of Horizons Family Law Centre Pty Ltd |
| Solicitors for the Independent Children's Lawyer: | Ms Morton of Morton Family Lawyers |
ORDERS
PENDING FURTHER ORDERS THE COURT ORDERS THAT:
That the mother have sole parental responsibility for X born in 2011, Y born in 2014, and Z born in 2016 (“the children”) in relation to matters relating to the children’s health, including hospitalisations, AND OTHERWISE the parents have shared parental responsibility for the children.
That the children live with their Mother.
That the father spend time with X and Y (“the boys”) as follows:
(a)Each Tuesday during school term time from 3.30 PM until 6.30PM;
(b)Until the first due weekend in October 2020, during school term time each alternate weekend from 10.00 AM on Saturday until 7.00 PM on Sunday;
(c)From the first due weekend in October, during school term time each alternate weekend from 3.30 PM on Friday until 7.00 PM on Sunday;
(d)During school holidays at the end of terms 1, 2 and 3, for half of the school holiday period being the first half in even numbered years and the second half in odd numbered years;
(e)During the school holidays at the end of term 4, for half of the school holidays on a week-about basis, the father’s time commencing with the first week of the school holidays commencing in even numbered years and commencing with the second week of the school holidays commencing in odd numbered years;
(f)From 10.00 AM until 4.00 PM on 25 December each year and from 10.00 AM until 7.00 PM on 7 January each year;
(g)At such other times as are agreed between the parents in writing from time to time.
That the father spend time with Z as follows:
(a)Each Tuesday during school term time from 3.30 PM until…
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- REDLICH & DEMIR [2020] FCCA 1757
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- [2020] FCCA 1757
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CaseChat Overview and Summary
The court was required to determine the appropriate interim orders for parental responsibility, the children's living arrangements, and the father's time with the children, taking into account the findings of family violence. The court also needed to consider orders aimed at mitigating the impact of family violence and facilitating co-parenting.
The court applied principles of family law concerning the best interests of the children, particularly in circumstances involving family violence. It found that while family violence had occurred, it could be mitigated by appropriate orders. Consequently, the mother was granted sole parental responsibility for the children's health matters, while parental responsibility for other aspects was shared. The children were ordered to live with the mother, and detailed orders were made regarding the father's time with the children, including specific arrangements for school terms, holidays, and Christmas. Further orders included restraints on derogatory comments about each parent, restrictions on discussing proceedings with the children, and requirements for parenting courses. A compliance check for a final hearing was scheduled for May 2021, and a Family Consultant report was ordered to address various aspects of the children's welfare and the parents' capacities.
Orders
Orders of the court
PENDING FURTHER ORDERS THE COURT ORDERS THAT:
1.
That the mother have sole parental responsibility for X born in 2011, Y born in 2014, and Z born in 2016 (“the children”) in relation to matters relating to the children’s health, including hospitalisations, AND OTHERWISE the parents have shared parental responsibility for the children.
2.
That the children live with their Mother.
3.
That the father spend time with X and Y (“the boys”) as follows:
(a) Each Tuesday during school term time from 3.30 PM until 6.30PM;
(b) Until the first due weekend in October 2020, during school term time each alternate weekend from 10.00 AM on Saturday until 7.00 PM on Sunday;
(c) From the first due weekend in October, during school term time each alternate weekend from 3.30 PM on Friday until 7.00 PM on Sunday;
(d) During school holidays at the end of terms 1, 2 and 3, for half of the school holiday period being the first half in even numbered years and the second half in odd numbered years;
(e) During the school holidays at the end of term 4, for half of the school holidays on a week-about basis, the father’s time commencing with the first week of the school holidays commencing in even numbered years and commencing with the second week of the school holidays commencing in odd numbered years;
(f) From 10.00 AM until 4.00 PM on 25 December each year and from 10.00 AM until 7.00 PM on 7 January each year;
(g) At such other times as are agreed between the parents in writing from time to time.
4.
That the father spend time with Z as follows:
(a) Each Tuesday during school term time from 3.30 PM until 6.30PM;
(b) During school term time, each alternate weekend, being the same weekend on which the boys are spending time with their father, from 10.00 AM until 4.00 PM on Saturday and from 10.00 AM until 4.00 PM on Sunday;
(c) During school holidays from 10.00 AM until 5.00 PM on each day on which the boys are spending time with their father;
(d) From 10.00 AM until 4.00 PM on 25 December each year and from 10.00 AM until 7.00 PM on 7 January each year;
(e) At such other times as are agreed between the parents in writing from time to time.
5.
That notwithstanding any other order herein, the children shall be in the mother’s care from 4.00 PM on 24 December until 10.00 AM on 25 December and from 4.00 PM on 25 December until 4.00 PM on 26 December each year.
6.
That for the purposes of these orders, school holidays commence at 3.30PM on the last day of school attendance and end at 7.00 PM on the day before school attendance resumes, with changeover in the middle (Term 1, 2 and 3 school holidays) and at the end of each week (Term 4 school holidays) occurring at 10.00 AM.
7.
That changeovers at the start of the father’s time with the children will occur by the father collecting the children from the front door of the mother’s home and changeovers at the end of the father’s time with the children will occur by the mother collecting the children from the front door of the father’s home.
8.
That at changeovers at the end of the father’s time with the children, the father must encourage the children to return to their mother’s care quickly and happily and not prolong the farewells.
9.
That each of the parents is restrained from saying or doing anything derogatory of the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or hearing of the children or any of them.
10.
That each of the parents is restrained from allowing the children or any of them to remain in the presence of, or within any of the children’s hearing of, any other person who is saying or doing anything derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household.
11.
That each of the parents is restrained from discussing or commenting on these proceedings in the presence of, or within the hearing of, any of the children and from discussing or commenting on any matter in dispute between the parents in the presence of, or within the hearing of, any of the children.
12.
That the father is restrained from filming any of the children and/or the mother at a changeover occasion.
13.
That the father is restrained from discussing his emotional state or his financial circumstances in the presence of, or within the hearing of, any of the children.
14.
That the father must ensure that while any of the children are in his care each is provided with appropriate food at all mealtimes and that each is dressed appropriately for the prevailing conditions.
15.
That each of the parents is restrained from physically chastising any of the children.
16.
That, unless he has already done so, the father is to enrol in and complete the Triple P Parenting Course and provide a certificate of his completion of the course to the Independent Children’s Lawyer and to the legal representatives for the mother.
17.
That unless they have already done so, each of the parents is to enrol in and complete a Parenting After Separation Course and provide a certificate of completion of the course to the Independent Children’s Lawyer and to the other party.
THE COURT FURTHER ORDERS THAT:
Compliance Check
18.
The matter is listed for a Compliance Check for Final Hearing before Judge Morley on a date and time to be advised in May 2021.
Applications
19.
Direct the Applicant file and serve any Amended Initiating Application by no later than 4:00PM on 17 July 2020.
20.
Direct the Respondent file and serve any Amended Response by no later than 4:00PM on 6 August 2020.
Evidence
21.
The evidence of each witness, including of the parties, is to be contained in one affidavit only by each such witness and multiple affidavits by a witness, including a party, will not be read at trial.
22.
No party may rely on an affidavit sworn or affirmed by them and filed prior to these Compliance Check Directions without leave first being obtained.
23.
Direct the Applicant and Respondent file and serve all affidavit material on which they intend to rely at trial by no later than 4:00PM on 30 April 2021.
24.
Direct that any exhibits to affidavits being impractical to annex to trial affidavits under Rule 15.28 of the Federal Circuit Court Rules 2001 (Cth) must be delivered in hard copy and in a form in compliance with Rule 15.28(5) to the Sydney Registry of the Federal Circuit Court and addressed to the Chambers of Judge Morley and must arrive at the Registry no less than seven (7) working days prior to the date for Compliance Check.
Expert Evidence
25.
In the event that either party seeks to call evidence by any medical practitioner, family consultant, or expert (‘expert’), then they shall give notice of such intention to the other party/ies not less than 28 days prior to the date for Compliance Check, with such notice to include:
(a) The name of the expert;
(b) The name of the organisation with which the expert is employed/the name of the expert’s workplace; and
(c) The nature of the expert’s expertise.
26.
In the event that any party wishes to cross examine an expert, that person is to give notice of such intention at least 14 days prior to the Compliance Check, and in that circumstance, the question of costs with respect to the expert’s appearance is reserved to the Hearing.
Subpoenas
27.
Leave is granted to each party to issue more than five subpoenas.
Terms of Settlement
28.
Leave is granted to the parties in the event that the matter is resolved and Terms of Settlement prepared and signed to forward those Terms to my Chambers for the purpose of orders being made in Chambers and Hearing dates vacated.
THE COURT NOTES THAT:
(a) The matter has been giving a mention date on 28 January 2021. This is an administrative date and will be relisted upon the settlement of the 2021 Judicial Calendar.
(b) Consideration will be given to allocating a trial date/s at the Compliance Check, provided that (inter alia) the parties have complied with these directions.
(c) Non-compliance with these directions may result in the matter not being allocated a trial date/s and referred to family dispute resolution.
(d) If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
(e) 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.
(f) Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
(g) If section 102NA applies and a party becomes unrepresented after these directions were made, that party is required to promptly advise the Court.
THE COURT FURTHER ORDERS THAT:
29.
Pursuant to section 62G a report is to be prepared for the Court by a Family Consultant nominated by the Manager of Child Dispute Services.
30.
The Report writer is requested to consider and comment upon the following:
(a) The nature of the relationship of the children with each of the children's parents; and other persons (including any grandparent, partner of a parent or other relative of the children or other person’s living within either parent’s household;
(b) The likely effect of any changes in the children 's circumstances, including the likely effect on the children of any separation from either of his or her parents or any other children, or other person (including any grandparent or other relative of the children or member of either parent’s household), with whom he or she has been living or spending time on a regular basis;
(c) The practical difficulty and expense of a children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis and, if so, what arrangements might be made to seek to address such affects;
(d) The capacity of each of the children’s parents and any other person (including any grandparent or other relative of the children or member of the parent’s household) to provide for the needs of the children, including physical, emotional and intellectual needs;
(e) The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents and/or members of a parents household or other care givers;
(f) Any allegations of family violence involving the children, or a member of the children’s family and the impact of those allegations and/or of any exposure of the children to family violence upon the children’s relationship with either parent and upon future parenting arrangements;
(g) The parents' current and future capacity to communicate with each other and resolve difficulties that might arise and with respect to same;
(h) any specific course, program or counselling service that might be of assistance in supporting, encouraging and/or assisting the parents (jointly and/or severally) in addressing any such difficulties as are apparent; and
(i) the impact upon future parenting arrangements (including the allocation of parental responsibility) of such apparent difficulties (if not addressed) and/or upon the children;
(j) Such other matters as the Report Writer considers relevant.
31.
The Report writer is requested to complete the report not less than four weeks before the adjourned date.
32.
The parties shall attend all appointments with the Report Writer and shall ensure that any other member of their household or other relative (as the Report Writer may request) as well as the subject children attend all appointments with the Report Writer, as requested by the Report Writer.
33.
The report writer may read the following documents and any document on the Court file, including but not limited to:
(a) The most recent Application or Response filed by each party;
(b) Any Notices of Risk filed in the proceedings;
(c) All Affidavits filed by each party;
(d) Any material produced on subpoena.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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