Tallant and Kelsey - [2015] FamCA 1190

FAMILY COURT OF AUSTRALIA

TALLANT & KELSEY

[2015] FamCA 1190

FAMILY LAW – CHILDREN – Interim parenting – With whom the children spend time – Issue of the extent of the time the children spend with the father.

APPLICANT:

Ms Tallant

RESPONDENT:

Mr Kelsey

INDEPENDENT CHILDREN’S LAWYER:

Ms Warda

FILE NUMBER:

PAC

3364

2013

DATE DELIVERED:

21 December 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

21 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Goodchild

SOLICITOR FOR THE APPLICANT:

Women's Legal Service NSW

COUNSEL FOR THE RESPONDENT:

Mr Morley

SOLICITOR FOR THE RESPONDENT:

PJM Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Beck

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mills Oakley Lawyers

Orders

By consent and until further order the children live with the Mother.
By consent the children spend time with the Father supervised by P Contact Centre or such other supervision service as the parties may agree for a period of three hours on each occasion and the Father is to bear all costs associated with the supervision of the time and that the time is to commence as soon as practicable.
By consent the parties forthwith complete all documents required and do all things required to facilitate the time with the Father commencing.
Such time is to occur once per week on a weekend day or such other day as the parties may agree.
The matter is adjourned to 14 March 2016 at 9:30am for a further consideration of the interim application.

Leave to Approach the List Clerk

Leave is granted to the parties to approach the List Clerk for the allocation of trial dates when appropriate noting that the matter has been estimated to be a five day trial.

Trial Directions

Both parties file and serve any amended application or response and updated financial statement upon which they intend to rely by no later than 28 days before the commencement of the trial.
Each party file and serve one consolidated affidavit of their evidence in chief and one affidavit from each of the witnesses upon which they rely in support of the orders sought by them with such affidavits to be in compliance with rule 15.12 of the Family Law Rules 2004, by no later than 28 days before the commencement of the trial.
Neither party may rely on any documents filed other than in compliance with these orders without leave of the Court and in the event of non-compliance with these filing directions the Court will at its discretion either vacate the trial dates, list other matters with priority or deal with the matter on an undefended basis.

Subpoenas

Each party is at liberty to issue such subpoena as they consider relevant to the issues in these proceedings and such subpoena shall be made returnable no later than 14 days before the commencement of the trial and be inspected prior to the first day of hearing.

Liberty to Re-List

The parties and the Independent Children’s Lawyer have liberty to re-list the proceedings for mention before a Registrar in the event of issues arising in relation to preparation for trial.

Other Court Proceedings

In the event that the affidavits or documents produced on subpoena reveal any relevant court proceedings (in particular in relation to an Apprehended Violence Order or criminal charges against a party or involving the children) the Independent Children’s Lawyer is to request that the Registrar obtain the relevant documents from the relevant court no less than 14 days prior to the commencement of the hearing.

Notice to Report Writer

As it has been indicated by the parties that they wish to cross-examine Family Report writer Mr R at the final hearing, the Independent Children’s Lawyer shall provide written confirmation to the Mr R of the final hearing dates and his requirement to be available for cross-examination within 14 days of the date of allocation of trial dates.
The Independent Children’s Lawyer has liberty to provide to the Family Report writer each of the parties’ affidavits filed for the purposes of hearing and any witnesses affidavits to be relied upon at trial and in the event that the Independent Children’s Lawyer does so that shall occur no later than 7 days before the commencement of trial.

Joint Chronology: Parenting and Property

The Applicant provide to the Respondent not less than 28 days before the commencement of the trial a draft Chronology setting out the Applicant’s contentions as to relevant dates and matters and the Respondent within a further 14 days insert into that Chronology the Respondent’s responses thereto and the relevant dates and matters contended for by the Respondent.
The Respondent is to cause the completed Chronology to be forwarded to the Court for filing not less than 7 days prior to the commencement of the trial.

Outline of Case: Parenting

Each party file and serve an Outline of Case document not less than 7 days prior to the commencement of the trial setting out:
a.    A precise Minute of Orders sought;
b.    A list of documents to be read in their case;
c.    A brief summary of argument touching upon the matters set out in s 60CC of the Act with reference to the relevant evidence relied upon;
d.    A list of authorities to be relied upon.

Joint Trial Balance Sheet

The Applicant provide to the Respondent no later than 28 days before the commencement of trial a draft Joint Trial Balance Sheet setting out the asset pool contended for by the Applicant including assets, liabilities and financial resources and their asserted value and the Respondent within a further 7 days shall insert into that Balance Sheet the Respondent’s contentions as to the asset pool contended for by the Respondent including assets, liabilities and financial resources and their asserted value and return the Joint Trial Balance Sheet to the Applicant no later than 7 days before the commencement of the trial.
In relation to any issue or dispute in the completed Joint Trial Balance Sheet the parties are to footnote their reason for their contention.
The Applicant is to cause the completed Joint Trial Balance Sheet to be forwarded to the Court for filing by no later than 48 hours before the commencement of the trial.

Outline of Case: De Facto

Each party file and serve an Outline of Case document by no later than 7 days before the commencement of trial setting out:
a.A list of documents to be read in their case:
b.A brief summary of argument setting out:
i.The party’s contention as to the percentage contribution based entitlement asserted pursuant to s 90SM(4) and the evidence relied on,
ii.The party’s contention as to any s 90SF(3) percentage adjustment sought, the factors in s 90SF(3) relied on and the evidence relied on;
c. A draft of the order sought to give effect to the overall entitlement asserted; and
d. A list of authorities to be relied upon.

Superannuation/Procedural Fairness

Pursuant to Rule 14.06 of the Family Law Rules 2004 each party seeking a superannuation splitting order binding the Trustee of an eligible superannuation fund shall no later than 28 days before the commencement of trial notify the Trustee in writing of the terms of the order and the date of commencement of the trial.

Readiness Check

The proceedings be listed for a readiness check before a Registrar on a date to be fixed.

Hearing Fee

In the event of any applicable setting down and/or hearing fee not having been reduced on the basis of financial hardship, the Applicant and Respondent shall pay any such fee equally no later than 21 days after the allocation of trial dates by the List Clerk.

Offer of Settlement

Not less than 28 days before the commencement of the trial each party shall serve on the other an offer of settlement pursuant to Rule 10.06 of the Family Law Rules 2004 setting out orders to be sought by each of them at trial.

IT IS NOTED THAT:

A.Pursuant to the consent of all parties, the property proceedings are to be conducted under Division 12A of the Family Law Act 1975.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tallant & Kelsey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3364 of 2013

Ms Tallant

Applicant

And

Mr Kelsey

Respondent

REASONS FOR JUDGMENT

This is an application for interim parenting orders with respect to the parties’ two children who are aged 13 and four and a half. In this matter the father has not seen or spent any time with the children for a period of 14 months. The circumstances in which they ceased spending time with their father were that the mother made an allegation of an issue of sexual assault and also physical assault respectively in relation to each of the children. That matter has been investigated. The mother maintains that there is, at the very least, an unacceptable risk of harm that would arise to the children with respect to that matter and she also has some other concerns about the father’s parenting capacity more broadly.
The father’s position is that he vehemently denies the sexual abuse allegation and that it has caused him significant stress. His position broadly is that he does not have significant problems with his parenting. As far as I understand it, whilst he concedes his parenting might not be perfect, it certainly does not give rise to an unacceptable risk of harm, so they are quite diametrically opposed positions and, indeed, will be fixed for a hearing as soon as that date can be allocated.
The application arises in circumstances where in June this year the parties were assessed by a family consultant who prepared a report dated 6 July which was subsequently released to the parties. That family consultant made recommendations in his opinion that the children immediately start to spend time with their father, that it be initially supervised for a short period for three weeks, that following that period there be unsupervised time, that time subsequently be extended and then commence to move to overnight time.
The father’s proposal on an interim basis was almost identical, if not identical, to the family consultant’s recommendation. It was certainly that there only be three weeks of supervised time of two hours each week, then move to a more lengthy unsupervised full day and then move to the regime of weekend and overnight time. The mother’s proposal was that – and I use the past tense because the parties came to Court today reasonably far apart and for both parties it has been quite a compromise in what they have been able to achieve – the time be one hour per fortnight, supervised for a period of two months and then move to two hours supervised per fortnight thereafter, essentially until the case is heard. So, as I say, for both of the parties there is a significant compromise.
The mother maintains that she has real concerns about the father’s parenting and the father, as I say, vehemently denies the allegations which have been made against him. It is good to see that the parties were able to achieve some form of common ground. That common ground includes that the father has a close relationship with the children and that both parties support that that relationship needs to be fostered, but that the issues of risk are to be managed by the time being supervised time. Ultimately, the only issue in dispute between the parties is the frequency with which that time with the father should occur for a two-month period.
It is the mother’s proposal that that frequency be limited for that two-month period to every fortnight and it is the father’s proposal that it immediately be every fortnight and that there, essentially, does not need to be any form of slow re-introduction or form of caution. The Independent Children’s Lawyer supports the father’s position. It is interesting, because the grounds that each of the parties rely upon in support for their respective position is exactly the same. That is, that there has been a lengthy period of time in which the children have not seen their father, the fact that the younger child is only four and a half years old, the fact that their older child’s views should be given some significant weight, the fact that it is going to have to be up to the parents to a large extent to make it work, so what they are comfortable with is obviously important.
Each of the parents really relies on exactly the same matters and submits that the Court should draw different inferences from those matters. If what was being proposed were anything more lengthy in terms of the actual time to be spent together than three hours on each occasion then their positions would, in fact, be further apart because what is the centre of this dispute is whether the recommencement of the time between the children and their father needs to have any lead time. The mother proposes that, given the circumstances, given the nature of the allegations and the children’s age and their views, that the Court should exercise great caution. The father says that because such a long period of time has gone, it is in the children’s best interests and he is certainly eager for the time to begin that there is absolutely no reason for it to be slow.
In my view, at the end of the day, the graduated increase is actually a matter that is more about the mother’s comfort than about being the best interests of the children. The mother, from her perspective, is obviously finding the idea of the children having much more than a very small amount of time with their father confronting and difficult in the sense that she only proposed in her order that for the next two months that time be one hour every second week. For her it is, in a sense, something that is more difficult in terms of comfort.
For the father, the issue is simply that he just wants to spend as much time as possible with the children and is of the view that that will benefit them. There is an issue of the father’s comfort too in that he clearly does find it confronting for the suggestion to be made that he represents a risk, but he has accepted that supervision is the way to go. He is also prepared to pay for the cost of it. It is going to clearly be a costly exercise.
At the end of the day, in my view, despite the circumstances and the age of the children and the views that are expressed, it is not a matter that the best interests of the children require a slow introduction. Some of the views expressed by the older child are as much consistent with the father’s position as with the mother’s. The younger child’s views are not something that are to be given enormous weight to. Given the close involvement that the father had in the upbringing of the children, I cannot have regard to the very serious allegations that the mother makes about domestic violence between the parties, simply because that is a highly contested matter. I am unable in these circumstances to draw anything more than conclusions that it requires supervision, which is something that the parties agree to in any event.
In my view, it is in the best interests of these children for the compromise orders, as proposed by the father, to be made and I make the following orders.
I say in passing that the Court is not, in these circumstances, in a position to be able to determine issues of parental responsibility and sole parental responsibility and matters of the like. At the moment, in the absence of orders of parental responsibility, the parties simply continue the position at law, but the reality is that there is really insufficient information to be making a decision in relation to parental responsibility at this interim stage.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered 21 December 2015.

Legal Associate:

Date: 13 January 2016