Rossi & Hardwicke (No 2)
[2024] FedCFamC1F 821
•29 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rossi & Hardwicke (No 2) [2024] FedCFamC1F 821
File number(s): CAC 1225 of 2022 Judgment of: GILL J Date of judgment: 29 November 2024 Catchwords: FAMILY LAW – PARENTING – Where consent terms were provided by the parties on the fifth day of final hearing – Where the proposed orders appropriately ameliorate the risks associated with both parties’ parenting – Final orders made by consent Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 25-29 November 2024 Place: Canberra Counsel for the Applicant: Mr Friedlander (25-28 November 2024) Solicitor for the Applicant: Ms Pagan, Bevan & Co Counsel for the Respondent: Mr Whitfield Solicitor for the Respondent: JS Family Lawyers Solicitor for the Independent Children's Lawyer: Ms Shavaiz, Infinity Legal ORDERS
CAC 1225 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ROSSI
Applicant
AND: MS HARDWICKE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
29 NOVEMBER 2024
THE COURT ORDERS, BY CONSENT:
1.That the Mother have sole long term decision making and parental responsibility for the children Y born 2014 and X born 2014;
2.That the children live with the Mother;
3.That the children spend no time with or communicate with the Father unless in accordance with the Children’s wishes and in the event the Children express a wish to spend time with or communicate with their Father, the Mother shall facilitate same;
4.That the Father is at liberty to send letters, cards and gifts to the children, at the Mother’s residential address as follows:
(a)The letters, cards or gifts are to be age appropriate;
(b)The letters, cards or gifts are to be sent on no more than four occasions per year including Christmas/the Children’s birthdays and Easter;
(c)The Mother is at liberty to inspect the letters, cards or gifts prior to giving them to the Children; and
(d)If the Mother considers, on reasonable grounds, that the letters, cards or gifts are not appropriate, she is able to destroy said letters, cards or gifts but will, otherwise, provide the letters, cards or gifts to the children.
5.That, in the event the address changes, the Mother is to inform the Father of the new address, via email, within 48 hours of it occurring;
6.That the Father is at liberty to receive information from the Children’s school or other educational provider and the Mother shall, within seven days, provide the school with the Father’s details to enable the contact to occur AND IT IS NOTED that the Father shall not contact or attend the Children’s school unless as agreed between the parties.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym, Rossi & Hardwicke, has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J:
On day five of a contested trial the parties have presented to the Court consent terms for the parenting arrangements for their children, Y and X, born 2014. Those terms are consistent with the issues raised by the single expert in the case.
The conduct of the case has been predicated on contested assertions of risk presented by each of the parents. Those contested assertions of risk meant that the parents have adopted polarised positions wherein the mother sought orders that would mean that the father would have no ongoing relationship, or prospect of such, with Y or X and the father sought orders that the children would live with him and that there would be a hiatus in their time with the mother for a period of six months, thereafter being supervised time. Each of these proposals was predicated upon risks that the parties advanced to the Court.
The principal risk asserted by the father was as to an ongoing emotional and psychological developmental risk posed by the mother, constituted by the proposition that the mother would fail to promote a relationship between X and Y and the father.
The risks alleged by the mother include allegations as to ongoing, for the currency of the relationship, allegations of family violence perpetrated by the father to which the children were exposed, in particular, allegations of serious physical violence perpetrated by the father upon the mother.
A further issue arose on the evidence in the proceedings as to the capacity of the mother to provide appropriate support for the children.
The parties have now presented to the Court, with the support of the Independent Children’s Lawyer, a set of consent terms which are marked as Exhibit C1. Those terms provide for the mother to have sole long-term decision-making parental responsibility for the children, the children to live with her and to spend no time with, or communicate with, the father unless in accordance with their wishes and, that in the event that the children express a wish to spend time or communicate with the father that the mother would facilitate such. Provision is also made for some ongoing contact on the part of the father by means of provision of letters, cards and gifts to the children, vetted by the mother, and for the mother to provide relevant authority such that the father may be able to know what the children’s schooling and educational arrangements are.
The orders proposed by the parties constitute an amelioration from the position either of them brought before the Court. They are protective of the risks identified as against the father, consistent with the general scheme proposed by the single expert, consistent also with a current lack of relationship between the children and the father, consistent with views expressed by the children to the single expert. They, however, ameliorate the position by providing a mechanism by which the children might still understand the father’s interest in their lives and interest in them and by which the father may still have an understanding of how the children are going. While, as indicated above, issues were raised as to the capacity of the mother to provide adequate care for the children, over an extensive period of cross-examination of the mother and in the context of the affidavit material presented by the mother there should be confidence that, despite the various difficulties that the mother labours under, she has adequate capacity and support to care appropriately for the children.
Given that the orders adequately deal with the safety issues that have been raised in respect of the children and on consideration of the evidence more broadly, even observing the incomplete nature of that evidence, I consider that the orders as proposed by the parties, and as supported by the Independent Children’s Lawyer, adequately represent the children’s best interests and should be made.
I make orders in accordance with Exhibit C1.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 4 December 2024
0
0
0