Terrill & Deighton (No 3)
[2024] FedCFamC2F 1148
•1 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Terrill & Deighton (No 3) [2024] FedCFamC2F 1148
File number(s): MLC 9773 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 1 August 2024 Catchwords: FAMILY LAW – Interim parenting – Proposed orders by consent – Whether proposed order in conflict with Family Violence Orders – Whether orders in best interests of children – Potential problem with “siloisation” of information – All authorities to be provided with prior reports. Legislation: Family Law Act 1975 (Cth), ss 4AB, 60CC, 68P, 68Q Division: Division 2 Family Law Number of paragraphs: 24 Date of hearing: 1 August 2024 Place: Melbourne Solicitor for the Applicant: Mr Robertson, Ian Robertson Legal Counsel for the Respondent: Mr Marchetti Solicitor for the Respondent: Elvin Lawyers ORDERS
MLC 9773 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TERRILL
Applicant
AND: MS DEIGHTON
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
1 AUGUST 2024
THE COURT ORDERS BY CONSENT THAT:
UNTIL FURTHER ORDER:
Decision making responsibility
1.The parents, MR TERRILL (‘the Father’) and MS DEIGHTON (‘the Mother’), retain joint decision making responsibility for making long term decisions with respect to the care, welfare, and development of the children:
(a)X born in 2011;
(b)Y born in 2014; and
(c)Z born in 2017.
(together referred to as ‘the Children’)
Living arrangements
X
2.X live with the Mother and spend time and communicate with the Father in accordance with her expressed views and wishes, with each of the parents to do all reasonable acts and things necessary to facilitate any such request.
Y and Z
3.Y and Z live with each of the Mother and the Father on a week-about basis, commencing and concluding on Friday at the conclusion of school (or 5pm in the event of a non-school day), with Y and Z to be in their father’s care in the week commencing 2 August 2024 (and alternating thereafter).
4.Each of the parents do all reasonable acts and things necessary to facilitate and encourage a relationship between the children and each of the parents.
Changeover
5.For the purpose of changeover, save where agreed in writing between the parents, changeover shall take place at the Y and Z’s school(s) or in default at McDonalds Restaurant, D Street, Suburb E.
Holiday
6.Y and Z’s arrangements with their father, pursuant to Order 3 above be suspended to allow the Mother to travel to Town F with the Children in August 2024, with such suspension occurring on the basis that the Mother provides the Father with a detailed itinerary outlining the accommodation and flight details for the children’s travel and provides the Father with the opportunity to spend make up time with the children upon their return to Melbourne.
Counselling
7.Each of the Father and Mother forthwith do all acts and things and sign all documents as required to allow X to participate in counselling with G Organisation.
8.The parties or either of them be at liberty to provide any of the following documents to any investigating police officer, child protection officer, therapist or counsellor concerned with the Mother, the Father or the Children:
(a)These Orders;
(b)Orders and reasons of 24 July 2023 (noting these are interim orders);
(c)Orders of 8 December 2022 (previous final orders made in these proceedings)
(d)Family Report of Ms B dated 16 February 2022;
(e)Family Report of Ms B dated 17 November 2022; and
(f)Family Report of Ms B dated 1 February 2024.
9.Each of the parents be at liberty to provide a copy of these Orders to any school the Children, or any of them, attend.
Return of items
10.Within 7 days of these orders, the Father provide to the Mother X’s personal belongings, including but not limited to, her plush toy; her clothing; jewellery and personal care products.
Parents’ therapy
11.The Father and the Mother, together with the children (as may be directed) forthwith engage with Mr H, Family Therapist, of J Centre in Suburb K, with the costs of such therapy to be borne equally by the parents and if Mr H is not available, the Father shall nominate three (3) alternative therapists and the shall thereafter choose one (1) from the nominated list of therapists.
General
12.The parents keep each other advised of any change to their residential addresses, mobile phone numbers and/or email addresses within 2 days of the change occurring.
13.The parents keep the other informed of all names and contact details of any treating medical practitioner and/or any other allied health practitioner/s who the Children currently attend and authorise such practitioner/s to provide the other parent with all information relating to the Children.
14.The parents, their servants and agents are hereby restrained by injunction from denigrating, criticising, belittling or otherwise speaking negatively about the other party (or their family members) to or in the presence or hearing of the Children and from permitting any other person to do so.
15.The parents, their servants and agents are hereby restrained by injunction from discussing and disclosing details regarding any financial matters pertaining to financial settlement and Child support with or in the presence or hearing of the Children and from permitting any other person to do so.
16.The parents each immediately inform the other of any serious illness or injury sustained by the Children whilst in their care and further provide any particulars of any treatment received by the Children together with the name and address of the treatment provide and/or location at which the Children are a patient.
17.Each parent is authorised to attend any significant medical appointments arranged for the Children save for routine GP check-ups and similar appointment for minor ailments.
18.The parents do all acts and things to authorise the Children’s school/childcare to provide all information and or correspondence ordinarily provided to parents including but not limited to school notices, information, newsletters, developmental updates, school reports, attendance records, invitation for school orientations and parent-teacher interviews, school photographs directly to each parent at their cost.
19.The parents are at liberty to attend all activities, meetings, events, birthday parties, school performances, school excursions, volunteering activities or any other functions at the Children’s school/childcare.
Passports and travel
20.The parents do all things necessary and sign all documents to apply and obtain Australian Passports for the Children and ensure that the Children’s Australian Passports are kept updated and are renewed when required.
21.The parents be at liberty to travel with the Children interstate during the times provided for in these Orders provided however the travelling party advises the other party at least 14 days prior to the commencement of the interstate travel by email including the address where the Children will be staying and a mobile number where the Children can be reached during the period of interstate travel.
22.Upon the request of either party, both parents do all things necessary and sign all documents required to renew an Australian Passport for the Children with the cost of the passport to be shared equally between the parents.
(a)The Father holds the Children’s Australian passport(s) and travel-related documents subject to these Orders.
(b)In addition to the time periods set out in these orders as time spent by the Children with the Mother and the Father, each parent shall be entitled to travel overseas or interstate with the Children for up to an extra 14 nights during each calendar year, provided that:
(i)The travelling parent notifies the non-travelling parent of the intended travel no later than 60 days before the planned departure date and provides a full itinerary, copy of a return airline ticket and contact telephone numbers for the Children throughout the travel period: and
(ii)The non-travelling parent shall contact the Children by telephone and/or Skype each alternate day of the travelling period and the travelling parent shall facilitate the same.
(c)Save as provided herein, such time does not occur over the other party’s time on special occasions such as birthdays, Christmas, Father’s Day, Mother’s Day, or in their holiday time.
(d)The parties be able to travel with the Children overseas at other times as agreed between the parties in writing.
(e)Upon receipt of the information referred to in the above order the non-travelling party immediately provide the Children’s passport and all required travel-related documents to the travelling party.
(f)The Mother returns the Children’s passport and travel-related documents to the Father within 14 days of her return to Australia with the Children.
23.Pursuant to Sections 65DA and 62B of the Family Law Act 1975, 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 the parties to adjust to and comply with an Order, are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
AND THE COURT ORDERS THAT:
24.IT IS DIRECTED pursuant to section 68P(3)(d), (e) and (f) of the Family Law Act 1975 (Cth) (‘the Act’), that the Associates to Judge O’Shannessy as soon as practical provide a copy of these orders to:
(a)the Registrar of the Magistrates Court of Victoria that made the mid-2024 Interim Intervention Order;
(b)the Commissioner of Victoria Police; and
(c)the Department of Families, Fairness and Housing.
Appointment of an Independent Children’s Lawyer
25.Pursuant to s 68L(2) of the Family Law Act1975, X, Y and Z be independently represented AND IT IS REQUESTED that VICTORIA LEGAL AID to arrange such independent representation and if practical, appoint the previous Independent Children’s Lawyer that has been involved in these proceedings prior and:
(a)forthwith upon appointment by Victoria Legal Aid and the Independent Children’s Lawyer file a notice of address for service;
(b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent themselves) provide to the Independent Children’s Lawyer copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports;
(c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Federal Circuit and Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and
(d)the Independent Children’s Lawyer prepare a minute of the orders they will recommend be made as final orders.
26.Leave is granted to the Independent Children's Lawyer to inspect and copy:
(a)All subpoena material that has been produced in these proceedings on or before 1 August 2024;
(b)Any Material produced by the Department of Families, Fairness and Housing that has been filed in response to the notification made under s 67ZBD;
(c)Documents produced by the Department of Families, Fairness and Housing in response to any order to provide documents or information under s 67ZBE Order.
AND THE COURT NOTES THAT:
A.These orders, by paragraphs 2, 4, 7, 11, 12, 13, 16, 17, 18 and 19 are inconsistent with paragraph one (1), three (3) and four (4) of the Interim Intervention Order made in mid-2024 in the Magistrates Court of Victoria (‘the mid-2024 interim IVO’).
B.Each of the parents acknowledge that X has experienced significant disruption at L School and her attendance at school has been poor. The parents identify that X’s schooling (and possibly a change of school for X) will need to be addressed as part of the therapeutic assistance by Mr H (referred to in Order 9 above).
C.Pursuant to sec 68Q of the Family Law Act 1975, to the extent that these orders are inconsistent with the mid-2024 interim IVO, these Orders shall prevail.
D.An Independent Children’s Lawyer has been appointed for the following reasons:
a.The potential risk of physical harm, abuse or neglect of the children in these proceedings
E.Victoria Legal Aid has been given access to this file via the Commonwealth Courts Portal (“CCP”) and is granted leave to view copies of documents available on the CCP.
F.All extant applications will be dealt with on 16 September 2024 for mention.
G.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
H.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
I.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
J.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY:
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
BACKGROUND
The matter of Terrill & Deighton comes before me for the third time since final orders were made on 8 December 2022. By way of background, I refer to the previous reasons I delivered on 24 July 2023 which were settled in August 2023. Broadly speaking, determination of the events that have occurred since that time, including whether or not there had been a sufficient change of circumstances to warrant a reconsideration of 8 December 2022 orders, was to be made at final hearing. The matter was listed for final hearing to commence 1 May 2024. Prior to that final hearing, it is apparent that the mother, Ms Deighton (‘the Mother’), had formed the view that she would return from Queensland to Melbourne. It is also apparent that in the meantime, the children had continued to live with their father, Mr Terrill (‘the Father’), but each school holiday period travelled to Queensland and back again for time with the Mother.
Sometime shortly before or around about May 2024, the Mother informed the Father of her intention to return to Melbourne. I am not aware how that transpired. The long and the short of that was that the parties agreed that the final hearing that was to take place in May of 2024 would not proceed and orders were made fixing the matter for mention on 16 September 2024.
In the meantime, in mid-2024, there was significant conflict between the Father and the oldest child, X. There are different accounts of that event. That event took place two days before the, by now, planned-for-some-weeks return of the Mother to Melbourne. In addition to that, whether related or unrelated, X has had significant difficulty attending school. On the Father’s account, X was behaving in what can be called a rebellious or difficult or disrespectful to parental authority manner and to the family of the Father, his partner and the three children. On the account that the Mother presses, based upon what she says X has said, there was significant conflict between X and her father and the Father effectively assaulted X in the car by pushing her head or bashing her head against the windscreen. The long and the short of that became a police investigation whereby the Father was investigated in regard to assault on X.
It appears common ground that following the orders of 23 July 2023 the children had lived with the Father and moved to Queensland each school holidays as in accordance with the orders. One of the issues that was alive in the interim proceedings, which was not resolved, was the Father’s allegation that the Mother’s consent to the orders of 8 December 2022 was not a genuine consent but was part of a plan. I make no finding about that. It is also not clear to me, on the evidence, the extent to which X and the children properly understood that they were living with their father in Melbourne and travelling to see their mother in Queensland because of the decision of their mother and their father that that is where they would live.
The material also indicates that the Father’s adult child, Mr C, has unfortunately become involved in these proceedings. It is not clear to me whether Mr C was aware of the reasons for the decision that I made on 23 July 2023 and that chronology of events.
The end result is that the Father has now not seen X at all since the time of police involvement shortly after the alleged incident in mid-2024.
Interim intervention order
In the meantime, police investigations have been underway and, in mid-2024 at the Magistrates’ Court, the last iteration of interim intervention orders was made. That intervention order had X, Y and Z as the affected persons protected from the Father. The order was made on the application of a senior constable of the Victoria Police and provides:
The following person/s are protected by this Order: the Protected Person/s
[X]
[Y]
[Z]
[…]
The Court made the following Order against you
[Mr Terrill]
If you do not obey all of these conditions below it is a crime and you may be arrested and charged.
OTH order :[1]The Family Law Orders dated 8/12/2022 are suspended as they relate to [Mr Terrill] and [X] until […]/2024 with the exception of equal shared parental responsibility and paragraph 13 relating to education, and paragraph 11 relating to health.
2. Commit family violence against the protected person(s).
[…]
3. Contact or communicate with the first AFM by any means.
4. Approach or remain within 5 metres of the first AFM.
5. Go to or remain within 20 metres of [ADDRESS] unless there is prior written agreement from [Ms Deighton].
6.Get another person to do anything the respondent must not do under this order.
OTH order :
8. The respondent may:
(a)do anything that is permitted by a Family Law Act order, a child protection order or a written agreement about child arrangements made with [Ms Deighton].
(b) negotiate child arrangements by letter, email or text message; or
(c)communicate with a protected person through a lawyer or mediator; or
(d) arrange and/or participate in counselling or mediation; or BUT ONLY IF the respondent does not commit family violence while doing so.
The Father then issued an urgent application seeking to regulate the time that he had with the children, given the complexity of the intervention orders. As can be seen, on the face of the intervention orders, they suspended the prior parenting orders, save as to equal shared parental responsibility in paragraphs 11 and 13 in regard to X only, but not in regard to Y and Z.
The interim order of mid-2024, on the one hand, at paragraph 1, says that the orders of 8 December 2022 are suspended as they relate to time or living arrangements between the Father and X. But paragraph 8 says that the Father may do anything permitted by a Family Law Act order. The inconsistency or difficulty of interpretation is immediately self-evident. That is, unless paragraph 8 was intended to read, or be implied to read, the respondent may (a) do anything that is permitted by a subsequent Family Law Act order. It may be that part of the problem with the orders arises from the use of pro formas. It was necessary to deal with this matter and this issue because notwithstanding the sensible negotiations and representation of the parties before me this morning, there was some need for clarity about whether the provisions of section 68P of the Act had been activated.
Sections 68P and 68Q provide as follows:
Section 68PObligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order
(1)This section applies if:
(a) a court:
(i)makes a parenting order that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; or
(ii)makes a recovery order (as defined in section 67Q) or any other order under this Act that expressly or impliedly requires or authorises a person to spend time with a child; or
(iii)grants an injunction under section 68B or 114 that expressly or impliedly requires or authorises a person to spend time with a child; and
(b)the order made or injunction granted is inconsistent with an existing family violence order.
(2)The court must, to the extent to which the order or injunction provides for the child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child:
(a)specify in the order or injunction that it is inconsistent with an existing family violence order; and
(b)give a detailed explanation in the order or injunction of how the contact that it provides for is to take place; and
(c)explain (or arrange for someone else to explain) the order or injunction to:
(i)the applicant and respondent in the proceedings for the order or injunction; and
(ii)the person against whom the family violence order is directed (if that person is not the applicant or respondent); and
(iii)the person protected by the family violence order (if that person is not the applicant or respondent); and
(d)include (or arrange to be included) in the explanation, in language those persons are likely to readily understand:
(i)the purpose of the order or injunction; and
(ii)the obligations created by the order or injunction, including how the contact that it provides for is to take place; and
(iii)the consequences that may follow if a person fails to comply with the order or injunction; and
(iv)the court's reasons for making an order or granting an injunction that is inconsistent with a family violence order; and
(v)the circumstances in which a person may apply for variation or revocation of the order or injunction.
(2A)Subparagraph (2)(c)(iii) does not apply to a child if the court is satisfied that it is in the child's best interests not to receive an explanation of the order or injunction.
(2B)Paragraph (2)(d) does not require inclusion of a matter in an explanation given to a child if the court is satisfied that it is in the child's best interests for the matter not to be included in the explanation.
(3)As soon as practicable after making the order or granting the injunction (and no later than 14 days after making or granting it), the court must give a copy to:
(a)the applicant and respondent in the proceedings for the order or injunction; and
(b)the person against whom the family violence order is directed (if that person is not the applicant or respondent); and
(c)the person protected by the family violence order (if that person is not the applicant or respondent); and
(d)the Registrar, Principal Officer or other appropriate officer of the court that last made or varied the family violence order; and
(e)the Commissioner or head (however described) of the police force of the State or Territory in which the person protected by the family violence order resides; and
(f)a child welfare officer in relation to the State or Territory in which the person protected by the family violence order resides.
(3A)Paragraph (3)(c) does not require the court to give a copy of the order or injunction to a child if the court is satisfied that it is in the child's best interests not to receive a copy of the order or injunction.
(4)Failure to comply with this section does not affect the validity of the order or injunction.
Section 68QRelationship of order or injunction made under this Act with existing inconsistent family violence order
(1) To the extent to which:
(a)an order or injunction mentioned in paragraph 68P(1)(a) is made or granted that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; and
(b)the order or injunction is inconsistent with an existing family violence order;
the family violence order is invalid.
(2)An application for a declaration that the order or injunction is inconsistent with the family violence order may be made, to a court that has jurisdiction under this Part, by:
(a)the applicant or respondent in the proceedings for the order or injunction mentioned in paragraph 68P(1)(a); or
(b)the person against whom the family violence order is directed (if that person is not the applicant or respondent); or
(c)the person protected by the family violence order (if that person is not the applicant or respondent).
(3)The court must hear and determine the application and make such declarations as it considers appropriate.
When the matter came before me, the Father was represented by his solicitor who had represented him in the prior proceedings before me and who represented him in the Magistrates’ Court. I was informed by him and accept that the reasons and orders of 23 July 2023 and the two family reports referred to in those orders that had both occurred prior to 8 December 2022, “had been provided to the Magistrates’ Court dealing with the family violence application and also to the investigating police.” That appears sensible to me.
Proposed consent orders
The minute of consent orders proposed by the parties this day provide, until further order, that the parents will retain joint decision-making responsibility for the long-term decisions relating to X, Y, and Z. They also provide that X will live with the Mother and, “spend time and communicate with the Father in accordance with her expressed views and wishes, with each of the parents to do all reasonable acts and things necessary to facilitate any such request.” The orders go on to provide that Y and Z will live with the Mother and the Father on a week-about basis and also, at order 4, provide that “each of the parents do all reasonable acts and things to facilitate and encourage a relationship between the children and each of the parents.”
Changeovers are to be at school and if that is not available, at a particular McDonald’s restaurant. The orders also provide that the parents are to facilitate X having counselling at G Organisation, and that the parents and the children are to be engaged in therapy with a particular named family therapist. Putting aside the issue that the parents have agreed that ultimately, the responsibility for whether she spends time with her father is to be determined by X’s expressed wishes, the orders are a sensible solution to a crisis that has befallen this family since the Mother has returned to Melbourne.
I am always troubled by the siloisation of information; information being kept in respective silos and multiple professionals dealing with parents and children and not being alert or aware to the context of other matters. In this case, I am less concerned about that because Mr Robertson, the Father’s solicitor, has assured me that the relevant Magistrate making the intervention order was provided with the previous family reports (noting that the observations therein were untested) and the orders that followed shortly after the second of those reports on 8 December 2022.
Nonetheless it appears to me, and the lawyers do not dispute, that the form of the orders that I am asked to make are both expressly and impliedly inconsistent with the family violence order. I am satisfied that I should make the orders that the parties ask me to for a number of reasons, including the following:
(a)both parties are represented by lawyers who are conversant with the long, unfortunate at history of the matter;
(b)the orders in regard to Y and Z are consistent or not, at least, inconsistent with the observations of the expert involved in the previous reports;
(c)the parents have agreed on these orders and that is a very important matter for the welfare of the children;
(d)the orders take account of the practical reality of the circumstances that X finds herself in.
On this interim hearing in accordance with the principles of dealing with an interlocutory application, I do not make any finding in regard to just what happened to X in the car with her father on that day and, indeed, the law says that I should not. I do not make any such finding.
Nonetheless, the parents have agreed that X should have the responsibility of determining what time she spends with the Father, albeit in the context of paragraph 4, that “each of the parents do all reasonable acts and things necessary to facilitate and encourage a relationship between the children and each of the parents”.
I take into account section 60CC and, in particular, the importance of the safety of the parties and the children, and Parliament’s direction that orders must take account of that. I regard the safety of the children as not only physical safety, but emotional safety as well. In all of those circumstances, I am satisfied that the orders the parents propose are in the children’s best interest at this time.
The orders that I make by consent, at paragraphs 2 and 4 – which are to the effect that the parents should facilitate and encourage X’s relationship with the Father and time with him – are in direct conflict with order 1 of the family violence intervention order. I am satisfied that it is in X’s best interest that these orders be made, notwithstanding that they are in conflict with that interim intervention order. These reasons should not be taken as a criticism of the Court that made that interim order. It may be on an interim hearing, or hearings, that there were few options.
I also raised with the parties whether the reasons of July 2023 and the two (actually three) family reports referred to should be provided to any therapist or counsellor involved with the children and/or the family in addition to the orders of 8 December 2022, and there was no opposition to that. It is unnecessary that I make an order that Child Protection be provided with those same documents as it is understood that Child Protection already has those documents and that the Magistrate, and the police have been provided with them.
I am also satisfied that because there are allegations of abuse of X, and that Y and Z being exposed to that alleged abuse would also be abuse. In those circumstances and because of my concern about the welfare of these children generally, I am satisfied that an independent children’s lawyer should be appointed to represent the children. I would also request that Legal Aid Victoria, if practical, appoint the same independent children’s lawyer that has been involved in this matter previously rather than start with a new one.[1]
[1] After delivery of these reasons I was advised that the previous ICL was no longer available.
In terms of the detailed explanation as to how time is to take place, any time with X pursuant to paragraphs 2 and 4 of these orders, is to take place without any family violence, which is defined in the Act as follows:
Section 4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The legislation is detailed, but I am satisfied that I have intelligent, educated parents who have legal advice, and the most important matter is that that time is to occur, following the encouragement and facilitation by both parents, without family violence.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 22 August 2024
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