FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Smits & Thorp [2025] FedCFamC2F 103
File number(s): NCC 1008 of 2022 Judgment of: JUDGE CARTY Date of judgment: 31 January 2025 Catchwords: FAMILY LAW – PARENTING – SPEND TIME ARRANGEMENTS – Applicant father seeks order that the three-year-old child spend supervised time with him – Child has spent limited time with father since parental separation three years – Consideration of matters under Part VII Family Law Act 1975 (Cth) – Consideration of the safety of the child and mother –Where father has perpetrated family violence –Where father has conviction for drug offences – Where father has not accepted full responsibility for his harmful conduct – Where father has not taken action to change his pattern of harmful behaviour – Whether there is a benefit to the child of being able to have a relationship with both parents – Consideration of what arrangements will promote the safety of the child – Where supervision of the child’s time with the father will ameliorate identified risks – Whether order for supervised time will promote the child’s safety and meet the child’s developmental, psychological, emotional and cultural needs – Whether mother’s capacity to provide for the child’s needs is preserved if there is an order for supervised time for the child with the father – Where an order for supervised time for the child is in the best interests of the child-Where order for supervised time will meet the child’s psychological and cultural needs – Where order for supervised time will not expose the child or the mother to an unacceptable risk of family violence – Order for supervised time for child with father six times each year – ALLOCATION OF DECISION MAKING – Where it is in the best interests of the child for the mother to have sole decision-making for all major long-term issues relating to the child-RESTRAINTS-COSTS – Independent Children’s Lawyer seeks an order that father pay a proportion of the costs of the Independent Children’s Lawyer – order for costs will create hardship for father – application refused Legislation: Evidence Act 1995 (Cth) s128
Family Law Act 1975 (Cth) ss 60CC, 60CE, 60CG, 61CA, 61F, 64B, 65D, 68B, 68C, 102NA, 117, Pt VII
Family Law Amendment Act 2023 (No. 87, 2023)
Cases cited: Isles & Nelissen [2022] FedCFamC1A 97
M v M (1988) FLC 91-979
Prantage & Prantage [2014] FamCA 541
Sedgley & Sedgley [1995] FamCA 154
Division: Division 2 Family Law Number of paragraphs: 237 Date of last submission/s: 30 May 2024 Date of hearing: 29 & 30 May 2024 Place: Newcastle Counsel for the Applicant: Mr Flanigan Solicitor for the Applicant: Grant & Co Solicitors & Attorneys Counsel for the Respondent: Ms Meares Solicitor for the Respondent: Legal Aid NSW Counsel for the Independent Children's Lawyer: Mr Murray
Solicitor for the Independent Children's Lawyer: Coast Law
ORDERS
NCC 1008 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SMITS
Applicant
AND: MS THORP
Respondent
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CaseChat Overview and Summary
The court had to determine whether supervised time with the father would be in the child's best interests, considering the father's past behavior and the potential risks involved. The court considered the statutory factors under the Family Law Act 1975 (Cth), particularly the child's safety and the preservation of the mother's capacity to provide for the child's needs. The court concluded that supervised time could be arranged in a manner that would not expose the child or the mother to an unacceptable risk of family violence, and that such arrangements would meet the child's developmental, psychological, emotional, and cultural needs.
The court ordered that the child would live with the mother and that the mother would have sole responsibility for making decisions about all major long-term issues relating to the child. The father was granted six occasions of supervised time with the child each year, to be arranged by a Children's Contact Centre. The mother was required to deliver and collect the child from the Centre, and the father was to pay the reasonable fees for the supervised time. The father was also restrained from engaging in violent or threatening behavior towards the mother or the child, and from contacting the child except as permitted by the court's orders. The application by the Independent Children's Lawyer for the father to pay a proportion of the costs of the lawyer was dismissed due to the potential hardship it would cause the father.
Orders
Orders of the court
NCC 1008 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR SMITS
Applicant
AND:
MS THORP
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE CARTY
DATE OF ORDER:
31 JANUARY 2025
THE COURT ORDERS BY CONSENT THAT:
1. The child X born in 2021 (“the child”) will live with the mother.
THE COURT FURTHER ORDERS THAT:
2. The mother will have sole responsibility for making decisions about all major long-term issues relating to the child.
3. The mother will provide to the father by email a copy of any written medical report she receives which relates to the child PROVIDED THAT the mother is at liberty to redact from such report any information which might identify her residential address.
4. For the purposes of Order 3 hereto each parent will keep the other parent informed of their current email address and notify the other parent of any change to their email address within 72 hours of such change.
5. The parents must do all acts and things required to arrange for the child to spend supervised time with the father on six (6) occasions in each calendar year for up to two (2) hours on each occasion.
6. Within 28 days of these Orders, the mother must nominate in writing by email to the father the Children’s Contact Centre which she proposes will provide supervised time for the child with the father pursuant to Order 5 hereto.
7. Each parent must:
(a) Contact the Children’s Contact Centre within 7 days of the mother’s written nomination and arrange an appointment for assessment of suitability for supervision of time pursuant to Order 5 hereto.
(b) Attend the assessment.
(c) Comply with any arrangements made by the Children’s Contact Centre for the child to spend supervised time with the father pursuant to these Orders.
(d) Comply with all reasonable rules of the Children’s Contact Centre.
(e) Comply with all reasonable requests or directions made by the staff of the Children’s Contact Centre.
8. If after the assessment referred to in Order 7 (b) hereto the Children’s Contact Centre is able to provide supervised time for the child with the father, the child X born in 2021 will spend time with the father on six (6) occasions each year for up to two (2) hours on each occasion at the times nominated by the Children’s Contact Centre, and if possible at the following times of the year:
(a) During the week that the child’s birthday falls.
(b) During the week that the child’s paternal half-sibling’s birthday falls.
(c) During the last week of each New South Wales Public School Term 1, 2, 3 and 4.
9. The mother must deliver the child to and collect the child from the Children’s Contact Centre at the times specified by the Children’s Contact Centre.
10. If the Children’s Contact Centre offers supervised time at times which are less regular than specified in Order 8 hereto then supervised time for the child with the father will occur at the times offered by the Children’s Contact Centre.
11. The father must pay the reasonable fees charged by the Children’s Contact Centre for each occasion of supervised time pursuant to these Orders.
12. The father must not attend the Children’s Contact Centre or the immediate vicinity before the supervised time with the child is to start and he must promptly leave the Children’s Contact Centre and the immediate vicinity when the supervised time with the child is to end.
13. The supervised time provided in these orders may vary by reason of the closure of the Children’s Contact Centre during school holidays and public holiday periods, and in such event, supervised time will occur when the Children’s Contact Centre can provide supervision.
14. Subject to the requirements of the Children’s Contact Centre, the father is at liberty to attend supervised time accompanied by the child’s paternal half-sibling B.
15. Pursuant to s 68B of the Family Law Act 1975 (Cth) (‘the Act’) the father will be and is hereby restrained by injunction from:
(a) Contacting or communicating with the mother except by way of email sent to the email address nominated by the mother pursuant to Order 4 hereto.
(b) Engaging in any violent, threatening or other behaviour towards the mother or the child or any member of the child’s family which causes the mother or the child to be fearful.
(c) Removing or attempting to remove the child from any school, day care centre, extra-curricular activity, or the care of any person with whom the mother has placed the child.
(d) Initiating contact or communication with the child by any means, including but not limited to telephone, digital, electronic or social media, except in accordance with these Orders, or with the written consent of the mother.
16. The application by the Independent Children’s Lawyer that the father pay costs in the sum of $3,707.50 is dismissed.
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.
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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