FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tong & Gill [2024] FedCFamC2F 895
File number(s): MLC 5481 of 2017 Judgment of: JUDGE O'SHANNESSY Date of judgment: 24 June 2024 Catchwords: FAMILY LAW – final hearing adjourned – section 102NA complications – interim orders made – family report observations untested – family report of assistance to interim decision – assistance of DFFH sought by section 67ZBD order – order for supervised time. Legislation: Family Law Act 1975 (Cth) ss 60CC, 60B Cases cited: Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 93-286
SS & AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 49 Date of hearing: 24 June 2024 Place: Melbourne Solicitor for the Applicant: Ms Goodrich, Bramham Lawyers Counsel for the Respondent: Ms Paull Solicitor for the Respondent: Fitzroy Legal Service Incorporated Solicitor for the Independent Children's Lawyer: Ms Macgregor, Macgregor Barristers & Solicitors ORDERS
MLC 5481 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TONG
Applicant
AND: MS GILL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
24 JUNE 2024
THE COURT ORDERS THAT:
1.The final hearing listed this day be adjourned for final hearing before Judge O’Shannessy, or such other Judge as is available, at 10.00am on 2 December 2024 (for an estimated 4 days).
2.That all extant parenting orders be and are discharged.
New arrangements
3.That on or before Monday 1 July 2024 (7 days) the Mother and Father do all such things and sign all such documents as necessary to enrol at H Contact Centre in Suburb J (‘the Contact Centre’) for the Father to have supervised time with the child from as soon as the Contact Centre can facilitate supervised time.
4.That the Father spend supervised time with the child at H Contact Centre in Suburb J (‘the Contact Centre’) each alternate weekend for such time as the Director of the Contact Centre nominates with the Mother and the Father to each contribute one half of any fee or charge, including of any report.
5.That no later than 30 September 2024 the parties, including the Independent Children’s Lawyer (‘the ICL’) do all things to request and cause a report from the Contact Centre to be served and filed.
Orders sourced from 20 March 2020 Orders
6.The child, X, born in 2016 (“the child”) live with the Mother.
7.That, Ms Gill (‘the Mother’) have sole parental responsibility for the child.
8.In the exercise of her sole parental responsibility:
(a)as soon as the mother becomes aware of a major issue in relation to the child’s care, welfare and development which requires a decision, she shall raise the issue with Mr Tong (‘the Father’);
(b)the Father shall respond to the mother’s proposal by the same means within 7 days; and
(c)the mother shall take the father’s response, if any, into account, and shall inform the father of her decision within 7 days of receipt of his response.
9.If the child…
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CaseChat Overview and Summary
Judge O'Shannessy ruled that the final hearing be adjourned to 2 December 2024. The court discharged all extant parenting orders and issued new ones, including the requirement for the child to live with the mother, Ms. Gill, who was granted sole parental responsibility. The court mandated that the father must enroll at the H Contact Centre in Suburb J for supervised visitation with the child, with specific arrangements for the time and fees. Additionally, the court ordered the Department of Families, Fairness and Housing to produce documents and information related to any abuse, neglect, or family violence involving the child or parents. The court also required the family report to be supplemented by an addendum and addressed specific matters related to the child's welfare and the impact of various orders on the child's relationship with both parents. The court outlined detailed trial directions for the filing of documents and case outlines, and noted that the provisions of section 102NA continued to apply, prohibiting direct cross-examination by the parties.
Orders
Orders of the court
MLC 5481 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR TONG
Applicant
AND:
MS GILL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
24 JUNE 2024
THE COURT ORDERS THAT:
1. The final hearing listed this day be adjourned for final hearing before Judge O’Shannessy, or such other Judge as is available, at 10.00am on 2 December 2024 (for an estimated 4 days).
2. That all extant parenting orders be and are discharged.
New arrangements
3. That on or before Monday 1 July 2024 (7 days) the Mother and Father do all such things and sign all such documents as necessary to enrol at H Contact Centre in Suburb J (‘the Contact Centre’) for the Father to have supervised time with the child from as soon as the Contact Centre can facilitate supervised time.
4. That the Father spend supervised time with the child at H Contact Centre in Suburb J (‘the Contact Centre’) each alternate weekend for such time as the Director of the Contact Centre nominates with the Mother and the Father to each contribute one half of any fee or charge, including of any report.
5. That no later than 30 September 2024 the parties, including the Independent Children’s Lawyer (‘the ICL’) do all things to request and cause a report from the Contact Centre to be served and filed.
Orders sourced from 20 March 2020 Orders
6. The child, X, born in 2016 (“the child”) live with the Mother.
7. That, Ms Gill (‘the Mother’) have sole parental responsibility for the child.
8. In the exercise of her sole parental responsibility:
(a) as soon as the mother becomes aware of a major issue in relation to the child’s care, welfare and development which requires a decision, she shall raise the issue with Mr Tong (‘the Father’);
(b) the Father shall respond to the mother’s proposal by the same means within 7 days; and
(c) the mother shall take the father’s response, if any, into account, and shall inform the father of her decision within 7 days of receipt of his response.
9. If the child is too ill to attend her scheduled time with the father pursuant to these Orders, the mother shall inform the father by text message as soon as practicable, and, within 7 days of the scheduled time she shall provide to the father a medical certificate stating the child’s inability to attend for time with the father, and make-up time shall be provided on the next weekend or the next holiday period after the scheduled time period.
10. The parties are hereby restrained by injunction from:
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the child, and from allowing her to remain in the presence or hearing of any third party who is engaging in such conduct;
(b) discussing these proceedings or any parenting disputes or issues in the presence or hearing of the child, save to explain to her any changes in her living arrangements as a result of these Orders, and from allowing her to remain in the presence or hearing of any third party who is engaging in such conduct;
(c) allowing the child to read, have read to her, or otherwise access any part of the Court’s Reasons for Judgment in this matter, or any document prepared for the purposes of these proceedings or tendered at trial.
11. The mother shall authorise any child care, school or extra-curricular activity in which the child is enrolled to provide to the father, at his expense, all information, notices, photographs, reports and like materials usually provided to parents.
12. The father is hereby restrained by injunction from attempting in any way whatsoever to discover the street address where the mother and the child live, and the mother shall be at liberty to advise any child care centre, school or extra-curricular activity in which the child is enrolled, or any doctor, dentist or other health practitioner who is treating the child, that they are not to allow the father to have access to that information.
13. The mother shall be at liberty to provide a copy of these Orders to any child care centre, school or extra-curricular activity in which the child is enrolled, and to any health professional who treats the child.
14. The parties and their servants and agents be and are hereby restrained by injunction from obtaining a passport for the child X born in 2016 until 2026, unless the parties agree in writing for a passport to be obtained for her before that date.
15. The parties, their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child X born in 2016 from the Commonwealth of Australia until 2026, or earlier date by agreement in writing between the parents.
16. The child X born in 2016 is hereby restrained from leaving the Commonwealth of Australia until 2026 without the express consent of both parents having been obtained in writing.
17. Should either parent wish to take the child overseas in or after 2026 (or before that date with the written consent of the other parent), he/she shall notify the other no less than two calendar months prior to departure and shall provide a full travel itinerary for the child, including times and means of travel, a copy of the child’s return ticket, accommodation details, and contact numbers where the child might be reached while she is away.
18. Neither party shall unreasonably withhold his/her consent to the child travelling overseas if the proposed time is within school holidays and occurs during the time the child is scheduled to be with the other parent.
Orders sourced from 15 February 2024 Orders
19. The Father be restrained by injunction from taking X to his home pending further order, which is currently at K Street, Suburb D.
Further Orders
S 67ZBE order
20. Pursuant to s 67ZBE of the Family Law Act 1975 (Cth) (‘the Act’), and unless protected by s 67ZBF of the Act, the Department of Families, Fairness and Housing (“the Department”) is to produce to the Court by no later than 4.00 pm on 26 September 2024 such documents and information in its possession or control relating to the parents and child or any of them, being;
(a) X, born in 2016 (child); and/or
(b) MR TONG born in 1983 (Father of the child); and/or
(c) MS GILL born in 1988 (Mother of the child);
that relate to:
- (section 67ZBE(2)(a) of the Act) any abuse, neglect (including neglect from the state of a parent’s residence or other occupants) or family violence, or significant risk of same, to which the child has been, or is suspected to have been, subjected or exposed; and
- (section 67ZBE(2)(b) of the Act) any family violence, or significant risk of same, to which a parent in the proceedings (‘a parent’) has been exposed, or in which a parent has been engaged, to the extent it may affect the child.
(such documents and information are referred to as the s. 67ZBE documents)
21. That unless protected by s.67ZBF of the Act, the s.67ZBE documents are to include documents and information that identify the child’s parents or either of them whether as having made a report or notification or otherwise.
22. That the Department have liberty to apply on short notice by email to the chambers of Judge O’Shannessy, and unless protected by section 67ZBF of the Act copied to all parties, about the terms of this order or the provision of the s 67ZBE documents.
23. The parties be restrained from issuing any subsequent subpoena to the Department seeking the production of any information or documents identified pursuant to these Orders, except with the leave of the Court.
Addendum Family Report
24. Pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child X, born in 2016 attend upon the same Family Consultant (if available) that prepared the Family Report dated 20 September 2023 (referred to as the Family Consultant), if that is convenient to Court Children’s Services, for the purposes of the preparation of an addendum family report and such report to be released by 7 October 2024.
25. The family report is requested to address:
(a) any matters that the Family Consultant considers important to the welfare or best interests of the child.
(b) where relevant, the matters set out in ss 60CC the Family Law Act 1975;
(c) the impact upon the child and upon the child’s relationship with the Mother if the Court made orders as sought by the Father;
(d) the impact upon the child and upon the child’s relationship with the Father if the Court made orders as sought by the Mother;
26. Not later than 4.00 pm on 2 July 2024, the parties must provide their contact telephone numbers and email addresses to FinalHearingReports.CCS@fcfcoa.gov.au. and;
(a) Each party will do all things necessary to ensure the child attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
(b) The parties and the child shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
(c) The Family Consultant shall be at liberty to inspect any material filed by the parties.
(d) Leave is granted to each of the parties and the Independent Children’s Lawyer to provide a copy of the Family Report to a convener of any legal dispute resolution conference.
Trial directions
27. The Applicant file and serve any Amended Application and a trial affidavit and, if relevant, an updated Financial Statement, upon which she seeks to rely by no later than 7 October 2024 (56 days prior to the Final Hearing) and the Applicant be at liberty to rely on material he has filed since the release of the Family Report on 30 September 2023, if he so chooses, but provided the other parties are advised on or before 7 October 2024.
28. The Respondent file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which she seeks to rely by no later than 4 November (28 days prior to the Final Hearing) and the obligation to file same applies whether or not the Applicant has filed trial material in accordance with the previous order, and the Respondent be at liberty to rely on material she has filed since the release of the Family Report on 30 September 2023, if he so chooses, but provided the other parties are advised on or before 7 October 2024.
29. The Independent Children's Lawyer file and serve any material on which she seeks to rely by no later than 4 November 2024 (28 days prior to the Final Hearing).
30. Any affidavit in reply from the Applicant to the documents filed by the Respondent and the Independent Children’s Lawyer are to be filed and serve by no later than 18 November 2024 (14 days prior to the Final Hearing).
31. Each party file and serve a case outline no later than 7 days prior to trial and provide a copy in Word format to the associate with the case outline to include:
(a) A list of the application/response and all affidavits to be relied upon including the dates of filing;
(b) A brief chronology of relevant events;
(c) A precise minute of the orders the party is seeking; and
(d) A list of authorities (precedent cases) to be relied upon, if any.
32. Liberty is granted to the Independent Children’s lawyer to apply to chambers to list the matter at short notice in regard to any further issues that arise that may affect the final hearing.
33. Pursuant to sections 65DA (2) 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.
AND THE COURT NOTES THAT:
A. These orders are intended to be an amalgamate of applicable orders (the final orders of 20 March 2020 and the interim orders of 15 February 2024 and these orders) for the purpose of the parents and the Contact Centre being able to refer to one set of orders.
B. For the avoidance of doubt between the parties, the orders of 15 February 2024 requiring changeover at a Police Station are discharged and any changeovers are to occur at the H Contact Centre (‘the Contact Centre’) as directed by the staff of the Contact centre.
C. The Mother and the ICL sought an order for documents and information from the Department and the Court understood that to be a request to make an order pursuant to s. 67ZBE or s. 67ZBE.
D. Material provided by the Department may be redacted pursuant to s 67ZBF.
E. Pursuant to s 67ZBH (1), the Court must admit into evidence any particulars, documents or information provided under an Order made under s 67ZBD, or under s 67ZBD(5), on which the Court intends to rely.
F. The Father has indicated that, subject to his concern about competence and conflict of interest he does request the assistance of an interpreter.
G. The Mother requires an interpreter.
H. The provisions of section 102NA continue to apply to the parties in this case, and neither the Father or the Mother are permitted to personally cross-examine the other, and each are to make any necessary application to be represented.
I. 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.
Background
Background to the litigation
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Evidence Before The Court
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Decision
Reasons for decision
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Legal Principle Established
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