Stalworth & Stalworth
[2023] FedCFamC1F 205
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Stalworth & Stalworth [2023] FedCFamC1F 205
File number(s): BRC 14917 of 2020 Judgment of: HOGAN J Date of judgment: 22 March 2023 Catchwords: FAMILY LAW – CHILDREN – Where the matter is part-heard – Where the parties consent to interim orders for the father to spend time with the children – Where the Court makes an order pursuant to s 65L of the Family Law Act 1975 (Cth) for the orders to be explained to the children. Legislation: Family Law Act 1975 (Cth) Division: First Instance Number of paragraphs: 11 Date of hearing: 20, 21 & 22 March 2023 Place: Brisbane Counsel for the Applicant: Mr Cameron of Counsel Solicitor for the Applicant: Melrose Keys Lawyers Counsel for the Respondent: Mr Coe of Counsel Solicitor for the Respondent: Raiti Lawyers Counsel for the Independent Children's Lawyer: Mr McGregor of Counsel Solicitor for the Independent Children's Lawyer: Wallace Perkins Family Law ORDERS
BRC 14917 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR STALWORTH
Applicant
AND: MS STALWORTH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOGAN J
DATE OF ORDER:
22 MARCH 2023
THE COURT ORDERS THAT:
1.The part-heard final hearing of this matter listed to re-commence at 10.00 am on 23 March 2023 is vacated.
2.The part-heard final hearing of this matter is now listed to re-commence at 10.00 am on 3 July 2023 before Justice Hogan commencing in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
3.All parties attend the part-heard final hearing of this matter in person.
4.By 4.00 pm on 28 June 2023: the parties file and serve any updating affidavits intended to be relied upon at the part-heard final hearing of this matter.
5.The Independent Children’s Lawyer has leave to provide Ms B with a copy of the affidavits filed by the parents pursuant to Order 4 of this Order.
6.The original Minute of Order signed by the parties be placed and kept on the Court file.
IT IS ORDERED BY CONSENT BY WAY OF INTERIM ORDER THAT:
Living Arrangements
7.The children, X born 2011 and Y born 2013, live with the mother.
Meeting with the Children
8.Pursuant to s11F of Family Law Act 1975 (Cth) the mother attend at Level 3, Court Children’s Service, Brisbane Registry, at 10.00 am on Thursday, 30 March 2023 for an appointment with a Family Consultant as nominated by the Manager, Court Children’s Service.
9.Pursuant to s11F of Family Law Act 1975 (Cth) the mother arrange for the children, X born 2011 and Y born 2013 to attend at Level 3, Court Children’s Service, Brisbane Registry, for an appointment with a Family Consultant as nominated by the Manager, Court Children’s Service, at 10.00 am on Thursday, 30 March 2023.
10.Pursuant to s11F of Family Law Act 1975 (Cth) the father attend at Level 3, Court Children’s Service, Brisbane Registry, for an appointment with a Family Consultant as nominated by the Manager, Court Children’s Service, at no time before 11.00 am on Thursday, 30 March 2023, unless otherwise advised by the Family Consultant in writing.
11.Pursuant to s 65L of the Family Law Act 1975 (Cth), the Family Consultant nominated by the Manager, Court Children’s Service, Brisbane Registry of the Court, together with the Independent Children’s Lawyer, shall assist the parties in relation to compliance with, and the carrying out of, the Orders made today by:
(a)explaining the terms of the Orders to the children, X born 2011 and Y born 2013, including that they are orders that are made with the agreement of their parents; and
(b)for the mother to explain with the assistance of the Family Consultant that the children have her permission to spend time with and see their father and to communicate with him; and
(c)for the mother to indicate to the children that she wants the children to have a relationship with their father, and to spend time with him; and
(d)for the mother to explain that she and the father have agreed that it is important and in the best interests of the children that they are to have a meaningful relationship with their father and to know him; and
(e)for the mother to explain to the children that she believes they will be safe spending time with their father and that he does not represent a risk to them and that they actually will be safe spending time with their father; and
(f)for the mother to explain that the children need to see and spend time with their father; and
(g)that the father shall be available to attend for the purposes of being introduced to the children with the assistance of the Family Consultant.
12.The father shall attend at Level 3, Court Children’s Service at such time and on such dates as directed by a Family Consultant as nominated by the Manager, Court Children’s Service.
13.The mother shall attend and shall cause the children to attend at Level 3, Court Children’s Service at such time and on such dates as directed by a Family Consultant as nominated by the Manager, Court Children’s Service.
Spending Time Arrangement
14.On 1 April 2023, 15 April 2023 and 22 April 2023, the father:
(a)shall attend the children’s extracurricular activity at C Street, Suburb D commencing at 12 noon each Saturday morning; and
(b)on these occasions the father shall attend at the children’s extracurricular activity aforesaid with Ms E, or such other person as nominated by the Independent Children’s Lawyer, to assist the children to spend time with the father until 3.00 pm, and the mother shall not be present and leave the location whilst the father is spending time with the children as provided herein.
15.On Saturday, 8 April 2023:
(a)the father shall attend with Ms E at F Venue in order to spend time there with the children between noon and 3.00 pm; and
(b)the mother shall ensure that the children attend at F Venue commencing at 12 noon and the mother shall then leave the location whilst the father is spending time there with the children and shall collect the children from F Venue at 3.00 pm; and
(c)the father shall spend time with the children at F Venue with Ms E, or such other person as nominated by the Independent Children’s Lawyer to assist the children to spend time with the father between noon and 3.00 pm.
From and starting on Saturday, 29 April 2023:
16.The father shall spend time with the children from 9.00 am until 5.00 pm on Saturdays, for a period of four (4) weeks.
From and starting on Saturday, 27 May 2023:
17.The father shall spend time with the children every alternate weekend from 9.00 am until 5.00 pm on Saturday, and from 9.00 am until 5.00 pm on Sunday.
School Holidays
18.The above arrangements shall continue during school holidays.
Special Occasions
19.Notwithstanding any other provision of this Order, the children shall spend time with the mother from 9.00 am until 5.00 pm on Mother’s Day in each year.
20.Notwithstanding any other provision of this Order, the children shall spend time with the father from 9.00 am until 5.00 pm on Father’s Day in each year.
Communication Between Parents
21.Except in an emergency, the parties communicate as regards all issues relating to the care, welfare and development of, and parenting arrangements for, the child/ren by way of the My Parenting App.
Changeovers
22.Changeovers shall occur for the first four (4) weeks at the children’s extracurricular activities, and thereafter at G Services, Suburb H and from once the children are spending time with the father from after school or to before school, then at the children’s school.
Non-Denigration
23.The mother and father are hereby restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the child/ren or any of them, and from permitting any other person so to do.
24.The mother and father are hereby restrained from discussing any issue in dispute between them, including these proceedings, with or in the presence or hearing of the child/ren or any of them and from permitting any other person so to do.
Discipline
25.Neither parent shall be at liberty to physically discipline the children.
Psychologist Appointments
26.The mother shall do forthwith to all things necessary to:
(a)engage and attend upon a registered psychologist, for the purpose of therapeutic counselling and to assist the mother in supporting the children’s relationship with their father and developing strategies to support the children’s relationship with their father; and
(b)within seven (7) days of engaging the psychologist must provide the name and contact details of the psychologist to the Independent Children’s Lawyer.
27.The father shall do forthwith to all things necessary to:
(a)engage and attend upon a registered psychologist, for the purpose of therapeutic counselling and to assist the father in supporting the children’s relationship with their mother and developing strategies to support the children’s relationship with their mother; and
(b)within seven (7) days of engaging the psychologist must provide the name and contact details of the psychologist to the Independent Children’s Lawyer
28.The Independent Children’s Lawyer has leave to provide the psychologist engaged by each of the parents with a copy of the affidavits of the Independent Children’s Lawyer’s witnesses as specified in the Independent Children’s Lawyer’s Case Outline Document.
29.The Independent Children’s Lawyer and the father have liberty to apply to have the matter relisted before her Honour Justice Hogan on the giving of two (2) days notice.
AND IT IS FURTHER ORDERED THAT:
30.The Family Consultant as nominated by the Manager, Court Children’s Service be provided with a copy of the following:
(a)the affidavits of Ms B sealed 24 January 2022 and sealed 28 February 2023; and
(b)the affidavit of Ms J sealed 24 January 2023; and
(c)the affidavit of Dr K sealed 6 February 2023: and
(d)the affidavit of Ms L sealed 7 February 2023.
AND IT IS FURTHER ORDERED THAT:
31.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS NOTED THAT:
A.The parents and the Independent Children’s Lawyer agreed that the listing on 3 July 2023 is with a view to the Court then making final Parenting Orders, to the following effect:
(a)the children shall live with the mother and the children shall spend time with the father as follows:
(i)for a period of six (6) weeks each alternate weekend the children shall spend time with the father from 9.00 am to 5.00 pm on Saturday, and 9.00 am to 5.00 pm Sunday;
(ii)following this for a period of 12 weeks, each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday;
(iii)following this for a period of 12 weeks, each alternate weekend from after school Friday to 5.00 pm Sunday; and
(iv)from the commencement of 2024 and in each year thereafter, each alternate weekend from after school Thursday until before school Monday, and one half all school holidays.
AND IT IS FURTHER NOTED THAT
B.The Court today has advised the parties that in the event that the Independent Children’s Lawyer exercises the liberty to apply clause and seeks to have the matter re-listed, the matter will be listed on Tuesday, 2 May 2023.
C.In the event that the listing on Tuesday, 2 May 2023 is no longer required, the Independent Children’s Lawyer give notice in writing by 18 April 2023.
D.The Court has today informed the parties that in the event that the matter does not conclude by 4.00 pm on Monday, 3 July 2023 it is the Court’s intention to sit to conclude the matter on 7 July 2023.
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 the pseudonym Stalworth & Stalworth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOGAN J:
I intend to make orders in terms of the Minute that has been the subject of discussion, taking into account, though, the amendments that I have raised with Counsel.
I do so noting the stage at which this trial has reached, namely: that each of the parents and the witnesses in their respective cases who have been required for cross-examination, have been cross-examined; and that all of the witnesses required for cross-examination in the case of the Independent Children’s Lawyer (other than Ms B, who has authored two reports for the assistance of the Court) have been cross-examined.
The orders that the parents seek I make arise in circumstances where the evidence makes clear that the children have not spent time with their father since about October 2020.
The evidence also establishes clearly that there have been efforts made to facilitate the children spending time with their father, both at a Contact Centre and via the intervention of Dr K, an experienced practitioner, who was engaged to facilitate the children resuming spending time with their father.
The fact that the children’s parents have today sought that the Court make these orders on an interim basis sends, I think, a clear message that both of them wish for their children to have the opportunity to spend time with both of their parents; that both of them say to the Court that they intend to support the orders.
In particular, consistent with the mother’s evidence that she does not consider the father to present a risk of harm to the children, the orders sought to be made (and that I intend to make) will have the mother tell the children that, in the supportive presence of a Family Consultant and the Independent Children’s Lawyer.
The decision to utilise a Family Consultant in this process, pursuant to an order made under s 65L of the Family Law Act 1975 (Cth), is to ensure that the children have the benefit of the support that such person, with their experience, can provide. It is also intended to ensure that the children, in a sense, start this process – that their parents ask that they commence – with a clean slate and unburdened by a view that they have been, in some way, tricked into the process. The orders will require the parents to attend upon the Family Consultant, not only on Thursday of next week, but potentially, also, for one other occasion if the Family Consultant, in the exercise of their professional discretion, considers that to be the appropriate course.
The purpose of the orders that the parents ask the Court to make is, I think, clear – namely, to ensure that these children are afforded the opportunity: to spend time with both of their parents; to engage in activities with both of their parents; to receive the benefit of input from both of their parents, and, in essence, over time, to be parented by both of their parents.
That the parents seek the order is something that I have no doubt a Family Consultant will assist the children to understand and appreciate.
For those reasons then, delivered in the context of this matter, noting that it remains part-heard before me, I intend to make orders, as adverted to, because I am easily persuaded that they are in the children’s best interests.
The orders will issue in the terms I have outlined.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 22 March 2023
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