Tavali & Lomu
[2023] FedCFamC2F 1042
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tavali & Lomu [2023] FedCFamC2F 1042
File number(s): PAC 4945 of 2019 Judgment of: JUDGE STREET Date of judgment: 24 August 2023 Catchwords: FAMILY LAW – PARENTING – where parents agreed – ICL identified other issues Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Division: Division 2 Family Law Number of paragraphs: 11 Date of hearing: 3 & 4 May 2023 Place: Sydney Applicant’s Counsel: Mr R Hanrahan Respondent’s Counsel: Mr C Liedermann Respondent’s Representative: Ark Law Lawyers Independent Children’s Lawyer’s Counsel Ms E Windsor Independent Children’s Lawyer: Mahony Family Lawyers ORDERS
PAC 4945 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TAVALI
Applicant
AND: MR LOMU
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
4 MAY 2023
BY CONSENT OF THE PARTIES (AND WITH PARTIES CONSENT OF THE ICL), THE COURT MAKES FINAL ORDERS THAT:
1.All previous parenting orders be discharged.
Parental responsibility
2.That the mother have sole parental responsibility for X, born in 2015.
3.That father have sole parental responsibility for Y and Z, both born in 2012 (the “twins”).
4.That each parent be entitled to attend all events involving the children including but not limited to sports functions, extra-curricular activities as appropriate, school functions as appropriate.
Live with
5.Subject to Order (6):
(a)X shall live with the mother on the making of these orders.
(b)Y and Z shall live with the father on the making of these orders.
6.In the event that the father is incarcerated, orders (3), (5b), and (9) shall be suspended for the period of that incarceration, the twins shall immediately live with the mother and the mother is to have sole parental responsibility for the twins.
7.Upon the conclusion of the father’s incarceration:
(a)The twins shall live with the father,
(b)The father shall have sole parental responsibility for the twins,
(c)The twins shall recommence spending time with the mother pursuant to order (9)
Spend time with
8.X shall spend time with the father as follows:
(a)From 9am Saturday – 5pm Sunday every alternate weekend.
9.The Twins shall spend time with the mother as follows:
(a)For a period of 3 months after the making of these orders:
(i)From 9am Saturday to 5pm Saturday, and
(ii)From 9am Sunday to 5pm Sunday, Every alternate weekend
(b)Thereafter:
(i)From 9am Saturday – 5pm Sunday every alternate weekend.
Changeover
10.That, unless agreed otherwise in writing between the parties, changeover is to occur at Suburb B McDonalds on the corner of C Street and D Street.
Communication
11.That the parents shall communicate by way of the co-parenting app “Our Family Wizard”.
12.Each parent shall ensure that the other parent is kept informed, as soon as it is reasonably practicable, of all matters relating to the children’s health, their residential address and contact telephone number and any other matter relevant to the welfare of the children.
13.This Order operates as authority to any educational facility attended by the children to provide to both parents, at their request, and at their cost, information relating to the children’s education along with copies of the children’s school reports, school photographs and any other documents relating to the children.
Ongoing Therapy
14.The Twins and the Mother are to engage in family therapy with a therapist experienced in addressing parent-child contact problems.
15.The parties are to do all things necessary to ensure that the Mother and the twins attend therapy with the above therapist, and follow all reasonable directions as required by that therapist, for as long as the therapist deems it necessary.
16.The father is to attend domestic violence therapy with an accredited service provider or psychologist.
Restraints
17.Each parent be and is hereby restrained from:
(a)Denigrating the other parent, or speaking in a derogatory or insulting way about the other parent, or any member of the other parent’s family in the children’s hearing;
(b)Allowing the children to remain in the hearing of any third party who is denigrating the other parent, or speaking in a derogatory or insulting way about the other parent, or any member of the other parent’s family.
(c)Discussing the issues in these proceedings and any other aspect of these proceedings with the children.
(d)Showing the children any document prepared during these proceedings and is further restrained from allowing the children to view such documents.
(e)Denigrating or criticising the religion of the other parent.
18.Other than as provided in these orders, the father is injuncted from:
(a)Contacting or approaching within 200m of the mother.
(b)Improperly consuming prescription drugs or consuming any illicit substances in the presence of the children or be in any way affected by them whilst the children are in his care or control.
School events and extra-curricular activities
19.Both parents are entitled to attend the children’s school events such as concerts, carnivals and graduation.
20.Both parents are entitled to attend the children’s extra-curricular events such as sport competitions.
THE COURT ORDERS THAT:
21.The Independent Children’s Lawyer is discharged from the proceedings.
THE COURT NOTES THAT:
A.Each party is to pay their respective legal costs in these proceedings.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
These parenting proceedings were commenced on 9 October 2019 in relation to three children, Y AND Z born in 2012, and X born in 2015. The proceedings have an unfortunate and protracted history and this is the fourth final hearing that the Court has sought to fix in relation to the parenting proceedings. The applicant and the respondent have agreed to proposed consent orders that have been marked exhibit F. The ICL has identified the agreement with a number of the orders, but not those in relation to the twins living with their father or time being spent by X with her father and other procedural orders that it is not necessary to set out. The ICLs proposal for drug testing and joinder of the Department of Communities and Justice has been raised for the first time in the proposed exhibit G. The Court is very mindful of the nature of these proceedings and the principles identified in s 43, and the principles applicable to these proceedings under s 69ZN and the applicable law in relation to Part VII and, in particular, the primary considerations and the greater weight consideration in relation to section 60CC(2)(b), the definition of family violence and abuse in the Act and the additional considerations as well as the provisions in rule 10.05 and 10.15A.
The Court is satisfied that the exhibits and evidence before the Court have discharged the obligations of the parties under rule 10.05. The proposed consent orders by the parties in exhibit F are ones that have been reached on the second day of the hearing after the assistance of the legal representatives of the parties and the ICL in relation to the issues that appear to have concerned the parties. This is a case where the presumption of equal shared parental responsibility was readily displaced on the evidence before the Court in relation to the matters identified in the ICLs case outline that have already come to pass, and it would meet the definition of family violence and displace the presumption. It is of importance in that regard that the ICLs position was for the three children to live with their mother and for the mother to have sole parental responsibility. It is the case that the Court is required to disregard the earlier parenting orders.
The Court cannot, however, disregard the fact that the twins have for the last almost three and a half years been living with their father and there is an obvious and very real psychological and emotional impact that would occur if the Court were to make orders requiring the twins to change their living arrangements. The Court is very mindful in that regard that an assessment by a case worker of the department, albeit not concerned with the statutory criteria that this Court is required to apply, did not identify any unacceptable risk of neglect in relation to the twins, then living with their father after particular conduct was the subject of police intervention. The Court is also mindful of the fact that the applicant father is currently on bail and has serious charges the subject of a hearing apparently later this year. It is not the case that the Court is able to form any view as to whether they will give rise to a custodial sentence, but there is a risk of the same. In relation to the primary considerations the Court it satisfied that the proposed consent orders do provide for the three children to have a meaningful relationship with both parents.
The greatest concern in the present case for which the Court must give greater weight is the considerations in relation to physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence. The ICL has properly drawn the Court’s attention to a number of particular references in the two of three tender bundles that the ICL has had marked as exhibits. Those tender bundles include not just the case worker risk assessment, but also the criminal history of the applicant and identify relatively recent police blood tests identifying the use of cannabis and illicit drugs by the applicant. The Court has taken into account the evidence identifying a level of participation by the applicant, at least at some stage, in the milieu of criminal activity. It is, however, the case that the case worker’s assessment did not identify that the children had been neglected or were the subject of a risk assessment of the kind carried out by the case worker justifying intervention in respect of the twins then living with the father. That assessment was performed approximately a year ago.
The Court has taken into account the risk of neglect because of the potential impact of drugs by the father that must be weighed against the reality that, on the evidence before the Court, the children have been effectively and competently parented by the father, taking into account the case worker’s evidence, and that the twins appear to be satisfactorily progressing in their education. The Court has also taken into account in relation to the risk of neglect the insight that the consent orders show by both parents in relation to putting first and foremost the best interests of the children.
The Court has also weighed in relation to that risk of neglect, the fact that the twins expressed to the ICL yesterday a preference to continue living with their father. That is a state of affairs that has continued now for almost three years. On the evidence before the Court, the Court does not regard the magnitude of the risk of neglect as sufficiently high to give rise to an unacceptable risk in respect of the proposed consent orders. In relation to the risk of psychological and emotional harm from being exposed to criminal activity, it is not apparent to the Court on the evidence, in particular taking into account the case worker’s report, that that has occurred to date. The Court has also taken into account the insight as earlier referred to of both parents in relation to their consenting to these orders as prioritising the best interests of the children, and the views of the children, and is not satisfied that the magnitude of the risk of emotional or psychological harm from being exposed to criminal activities is real and finds that it does not give rise to an unacceptable risk in the circumstances of this case.
In relation to the views of the children, it is of importance in that regard that the views of the twins have remained the same over a period since the family report writer’s report of almost three years, and the same position pertains in relation to the youngest child, X, who prefers and expresses the view that she wishes to live with her mother. The family report writer identified that weight should be given to the view of the youngest child. The youngest child is now more mature and the Court is satisfied that considerable weight should be given now to the view of the youngest child in relation to her preference. The family report writer suggested that a different approach should be adopted in respect of the twins who are now 12. Two years have passed and they are emotionally more mature and the Court is satisfied given the consistency of their position that considerable weight should be placed upon the views expressed of the twins to continue living with their father.
The Court is not satisfied that there is any other real risk of unacceptable harm to the children from the proposed consent orders. The Court is alive to the position that the orders do give rise to the siblings being split up. From the view of an emotional and psychological impact on the children that is the position it has attained for the last three and a half years. The twins go to a different school to that of the youngest child. In all the circumstances the Court is satisfied that the proposed consent orders are in the best interests of the children. The Court notes that the proposed consent orders do provide methods of communication and handover most likely to reduce any future conflict and that the final proposed parenting orders are ones least likely to give rise to future proceedings and/or future family violence. In all the circumstances the Court is satisfied that the proposed consent orders are appropriate and in the best interests of the three children.
The Court notes that it has taken into account the ICLs proposed orders and is not satisfied that at this stage in the proceedings they are appropriate to make. First in relation to the drug testing the Court is alive to the evidence that was adduced that the father had failed to undertake testing that he was required to do during the period whilst the twins had been living with him. Nonetheless, the Court is not satisfied that the imposition of this order would now do anything other than give rise to further conflict and division between the parties, and is not satisfied that such an order is necessary in the best interests of the children in the circumstances where the parties have been able to achieve a consent position. The Court is also of the view that the raising of the potential intervention would protract the proceedings and would not be in the best interests of the children and, accordingly, has declined to make the orders identified in exhibit G and does not accept the proposed areas of disagreement with the consent orders as identified by the ICL.
The Court acknowledges that the ICL has been placed in a difficult position because of the failure in particular of the applicant to have complied with the test requests the subject of the third bundle of exhibits advanced by the ICL, and that the ICL has been at the disadvantage of a failure by the applicant to permit engagement by the ICL with the children until an order was made yesterday. The Court has taken into account in that regard that the father did comply with the Court’s order yesterday to ensure that the ICL was able to ascertain the views and welfare of the children. No specific welfare issue was raised by the ICL having spoken to the children, and the children’s views in relation to the twins were clearly conveyed as a preference to live with their father. A similar preference had earlier been identified in relation to X at the commencement of the hearing.
The ICL has also faced the difficulty that there has not been filed updated affidavit material of the kind that ordinarily would have assisted the ICL in earlier formulating proposed orders that might assist the Court and the parties. The Court is very grateful for the steps that have been taken by the ICL both to try and assist the parties in achieving consent orders and has no doubt that the outcome of the consent orders are to no small part a very helpful role played by the ICL in that regard. The Court is also of the view that the ICL has significantly assisted the Court by the case outline that was provided and the submissions that have been put in understanding the issues and weighing the competing issues that arise in relation to the best interests of the children in respect of the primary and additional considerations. It is for these reasons that the Court has made the consent orders.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 24 August 2023
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