Tong & Gill
[2024] FedCFamC2F 895
•24 June 2024
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 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 [email protected]. 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.
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
In the matter of Tong and Gill, I am asked to determine spend-time arrangements for X, born in 2016, with her father, Mr Tong (‘the Father’). The matter comes before me on what I am able to identify as the third listing for final hearing in eight-year-old X's life. The Father is highly educated but unemployed, or in receipt of a disability pension. He is 40 years old. X’s mother, Ms Gill (‘the Mother’), is employed and she is 36 years old. Neither parent has other children.
X is eight years old. Her parents commenced cohabitation and married in about 2015, and X was born in 2016. By August 2016, X's parents had separated for the last time. The first proceedings were then issued on 6 June 2017 and those proceedings were resolved by a hearing before another Judge, where the final hearing commenced on 13 December 2018, with the last submission in the case being on 24 June 2019, and the decision being 20 March 2020.
First final hearing
In early 2016, the Mother travelled overseas, leaving X in the care of the Father and his mother. There was some controversy about how long that was for, but it appears to have been about somewhere between two and three weeks.[1] At the final hearing before another Judge in 2020, the Father said he understood the parties to be separated when the Mother travelled overseas, however this was contested by the Mother. Following the Mother returning to Australia, the parties resumed living together for a very short period and then finally separated for the last time on 9 August 2016.
[1] Passport information should clarify that.
Prior to that case, there had been a family report prepared. On 20 March 2020, the Judge ordered that the Mother have sole parental responsibility but that she consult the Father about any major decision of parental responsibility and consider his response and inform him of her decision. The Orders provided that X was to live with her mother and that her father spent time initially limited to four hours on six occasions, before moving to overnight on a Saturday night to finish on early Sunday morning, and thereafter each alternate weekend from 4.00 pm Saturday to 4.00 pm Sunday. Then, gradually increasing until each alternate weekend from 4.00 pm Friday to 4.00 pm Sunday.
The orders provided that time with the Father then moved when term 2 of X's first year of school commenced, to be from alternate weekends from conclusion of school Friday to commencement of school Monday and with extended time during the school holidays. In addition, X was to have video time with her father each Tuesday during school term. It appears that, by and large, those Orders were complied with, and that, by and large, X spent time with her father, during school term at least, from the conclusion of school Friday to the commencement of school Monday and communicated with her father at least most Tuesdays.
By consent in November 2022, orders were made that effectively reinforced the previous Orders and provided for make-up time with the Father.
Second wave of litigation
The Father then commenced proceedings in what I will call the ‘second wave’ of litigation in X's life when he issued another application for final parenting orders on 4 January 2023. In between the Final Orders and the next application to vary them, there had been further litigation where the Father pressed an enforcement application. It is not disputed that, on at least one or two occasions, X was not made available pursuant to the then-applicable current orders.
The Father's new application filed 6 January 2023 was not precise in the orders that it sought, but sought make-up time, and effectively sought to appeal the Consent Orders made the previous November that had finalised his enforcement application.
Mother seeks Father’s time to continue
The Mother eventually filed a response in regard to Final Orders on 8 February 2023, where she pressed that the Father's application be dismissed and, in the alternative, sought that she have leave to particularise the spend time arrangements that she sought upon the Father serving an amended application. However, it is significant that, at that time, the Mother did not press to relitigate the matter or otherwise alter the court-ordered arrangements. The effect of what the Mother sought as at February 2023 was for the 20 March 2020 Orders to continue.
On 13 April 2023, the Father filed a further amended application where, essentially, he sought that he have the time previously ordered, but that his time during school holidays be slightly increased. In addition to that time, he sought that he have time from the conclusion of school each alternate Monday until commencement of school on Thursday morning.
Mother seeks very different orders
On 28 November 2023, the Mother filed an amended response that sought radically different orders. The Mother pressed that the Father complete two courses or programs, and engage with mental health services and that, once he had, his spend time with X would be each Saturday from 10.00am until 2.00pm and short periods of time on special days and, significantly, that the Father be restrained from taking X to his home unless the Mother had provided prior written consent.
Family report
In order to prepare for the second looming final hearing, the court had ordered that a family report be prepared. A family report was duly prepared, dated 20 September 2023, and that was released to the parties on 2 October 2023. The report included the following:
CONTEXT OF THE CHILD AND FAMILY
…
7.As per the Court Orders dated 20 March 2020, [X] spends time with [the Father] on each alternate weekend from the conclusion of school of Friday to the commencement of school on Monday and communicates with [X] on facetime each Tuesday from 5:30 pm to 6:00 pm.
…
PROPOSALS OF THE PARTIES
11.[The Father’s] proposal is for [X] to continue living with [the Mother], with his visitation to occur on weekdays. He has suggested having [X] with him every other week from Tuesday after school until Friday morning. He has also expressed his intent to be responsible for [X]’s health and dental appointments, as he believes that [the Mother] may be struggling to address these needs adequately. [The Father] has indicated that [X] should still spend half of the school holidays and other special holidays according to the Court Orders issued on 20 March 2020. Despite being prompted by the Family Consultant, [the Father] did not propose any alternative care arrangements for [X].
12. [The Mother’s] proposal is for [X] to continue living with her, with a reduction in the time [X] spends with [the Father], particularly without overnight visits. [The Mother] suggested that [X] could spend time with the Father every other Saturday and Sunday from 10:00 am until 6:00 pm, with the possibility of extending the daytime visits during school holidays. She has expressed concerns about [the Father’s] limited parenting capacity, including the fact that [X] does not have her own bedroom at [the Father’s] house and sleeps in the same bed with him. When prompted to provide an alternative proposal to the Court, [the Mother] suggested that [X] could have one overnight visit with [the Father] if he prepares a separate room for [X] and ensures that [X] is comfortable spending time with him.
…
ADULTS AND THEIR RELATIONSHIPS
14. The applicant father, aged 40, presented as calm and appropriate during his family report interview. However, he often provided an abundance of information with an inclination towards verbosity and tended to divert from the main point of discussion. He was particularly focused on the observation session, expressing concerns that [X] might not want to leave with him after the session. [The Father] displayed a mistrustful view of [the Mother], believing that she is hindering [X] from having a meaningful relationship with him. Despite this, he expressed a desire for an amicable co-parenting relationship with [the Mother] and wished for them to stop fighting. He also conveyed concerns that [the Mother] holds onto past grievances and appears to harbor some bitterness toward him.
…
Parental understanding of risk
Risk of Family Violence
16. [The Mother] claimed that [the Father] subjected her to family violence throughout the relationship, both during their time together and after their separation. She became visibly emotional and tearful as she recounted instances of physical abuse, including choking and persistent pushing of her head. She further asserted that [the Father] had slapped, pushed, and kicked her. [The Mother] indicated that [the Father] would resort to physical aggression if she did not comply with his demands or if she attempted to disagree with him during conflicts. She went on to mention that [the Father] had even pushed her head while she was holding their baby.
…
18. [The Mother] stated that [the Father] would become extremely angry and physically assault her whenever she attempted to seek employment or attend job interviews. She alleged that [the Father] frequently pushed her forcefully when he was upset, which has left her feeling deeply scared when people approach her from behind. She believes that these experiences have led to post‑traumatic stress disorder (PTSD). [The Mother] recalled a specific incident in which [the Father] forcefully pushed her to the ground. She recounted that she attempted to scream for help, but [the Father] covered her mouth with his hand and informed her that he would release her if she stopped shouting. She expressed that during this terrifying episode, she had difficulty breathing due to the restriction of her airway.
…
22. [The Mother] reported that [the Father] continues to subject her to various forms of family violence, despite their no longer living together. She mentioned that previous Court Orders issued in March 2020 explicitly stated that [the Father] must refrain from using any means to discover her residential address. However, to this day, [the Mother] claimed that [the Father] has been attempting to obtain information about their home address from [X]. She alleged that he asks [X] questions like, “Which way does mommy go when she picks you up?” She recounted an incident during a video call when [the Father] asked [X] to show him the view outside the window.
23. Furthermore, [the Mother] reported that at one point, [the Father], accompanied by his parents, visited her residence to drop off [X]. She alleged that [X] informed her that [the Father] parked in the car park during the drop‑off and attempted to enter the building. When he could not gain access through the main entrance, he tried to use the emergency stairs but found the door locked. [The Mother] expressed deep fear regarding [the Father’s] actions and the lengths he may go in order to achieve his objectives. Consequently, she sought an Intervention Order against [the Father] in [late] 2022. An Interim Intervention Order was granted […]
A Final Intervention Order was made in mid-2023. That was to expire in mid-2025. The Father sought a re-hearing of that Intervention Order and the Final Hearing of that Application proceeded in late 2023 and, after contested proceedings, a Final Intervention Order was made for a period of 12 months, to expire in late 2024.
The family report also identified the following:
24. [The Mother] has asserted that [the Father] has deliberately utilized all available community services in their area, creating a conflict of interest that prevents her from accessing those same services. She mentioned that at present, virtually every service in the area has been engaged by [the Father], leaving her with no choice but to represent herself in certain situations due to these conflicts of interest. [The Mother] alleged that [the Father] even made use of women’s services to his advantage. She expressed her gratitude for her current legal service, which did not acknowledge any conflict of interest when [the Father] attempted to raise this issue. [The Mother] reported that there was a period in 2022 when she had to attend court hearings nearly every week because [the Father] continually took her to court on various and unsubstantiated allegations.
Child Safety and Wellbeing
29. [The Mother] expressed apprehensions about [the Father’s] capacity to ensure [X]’s safety and well-being. She alleged that there was a period when [X] was sleeping beneath a table at [the Father’s] residence, despite a Court Order stipulating that [X] should have her own room and receive proper meals. [The Mother] reported that she had brought this issue to the attention of Child Protection, but no action was taken. She stated that [X] slept under the table at [the Father’s] house for several months. [The Mother] further reported that she discussed this concern with [the Father], and he relocated [X] to a bunk bed situated in the living room, with a couch placed underneath it. Subsequently, she said [X] began returning to [the Mother’s] residence with bed bug infestations, which [the Father] attributed to her school. [The Mother] stated that she followed up with the school, which confirmed that there was no bed bug infestation on their premises.
30.[The Mother] alleged that [the Father] has now arranged for [X] to sleep in the same bed with him in his bedroom. She raised concerns about the appropriateness of this arrangement, particularly given that [the Father] sleeps wearing only his underwear while sharing the bed with [X]. [The Mother] stated that [X] has voiced her discomfort with this situation on numerous occasions.
31. [The Mother] expressed concerns about [X]’s disclosure that [the Father] assists her with showering and washing her private parts. She said [X] mentioned feeling very uncomfortable when [the Father] helps her bathe. [The Mother] pointed out that [X], who is seven years old, bathes herself when she is at her house. [The Mother] stated that she reported this issue to Child Protection, who conducted an assessment and determined that [X] was not in immediate danger.
32. [The Mother] claimed that [X] disclosed that while at [the Father’s] house, she is not permitted to consume any fruits from the pantry and is required to remain hungry until [the Father] wakes up. [X] also relayed that there have been occasions when [the Father] does not wake up until as late as 2:00 pm or even later. Furthermore, [the Mother] alleged an incident in which [the Father] left [X] unattended during the night. [The Mother] alleged that [X] said, "Daddy's friends came to pick him up but his car had no car seat, so I couldn't go too." Additionally, [the Mother] shared that [X] had previously disclosed an occurrence in which [the Father] left her alone in the street, and another lady who was walking her dog stayed with [X] until [the Father] returned.
…
34. According to [the Mother], her counsellor suggested that [the Father] might be dealing with a mental health condition related to hoarding. She also reported that she had noticed [the Father] engaging in similar behaviour during their relationship, where he would pick up discarded items from the streets. [The Mother] alleged that this is the reason [X] does not have her own room at [the Father’s] residence. She stated that despite residing in a two-bedroom property, the second bedroom is filled with the items [the Father] collects from the streets.
35. [The Mother] further alleged that the living room no longer has space for [X] to move around because [the Father’s] possessions are piled up to the ceiling. She claimed that [the Father] also uses his second bathroom as a storage area, forcing [X] to use [the Father’s] bathroom instead. She mentioned that when [the Father] needs to access these storage spaces, he pulls items out, enters the room, and then returns the items. [The Mother] raised concerns about the living environment, stating that during a video Court hearing, everyone could see that the clutter reached the ceiling. She also alleged that [X] had disclosed an incident when a microwave fell and the glass shattered, fortunately without causing harm to anyone. [The Mother] suggested that the presence of clutter in the living room, toilet, and spare bedroom is the reason for the bed bug infestation in the house.
36. [The Mother] expressed concerns about [the Father’s] treatment of [X] at his residence, which she believes may be contributing to [X]’s reluctance to visit. She alleged that, even to this day, [X] is instructed to use the toilet with the door open, denying her any sense of privacy. [The Mother] emphasized the importance of [X] feeling comfortable and having a sense of belonging in her father's home, which, in her view, is not currently the case.
…
39. [The Father] reported that he does not have significant concerns regarding [X]’s safety and well-being. However, he alleged that [the Mother] may not be adequately addressing [X]’s dental and health needs. He mentioned an instance when [X] claimed that she had not taken a shower for two weeks, and he had to assist her in bathing. According to [the Father], [X] told him that the shower at [the Mother’s] residence was too high for her to reach, making it difficult for her to shower. [The Father] stated that he was uncertain whether [X]’s statement was accurate, as it was the only time, she had made such a claim; on all other occasions, she informed him that she had showered. He explained that he does not bath [X], however, since she disclosed that she had not showered for two weeks, he supervises her to ensure that she has bathed properly. He stated that at times he helps her wash her hair to make sure that it is clean.
40. [The Father] expressed concerns about [X]’s significant tooth decay. He alleged that when he discussed this matter with [the Mother], she explained that dental appointments are costly, and she cannot afford them. He questioned why she had not informed him of this issue, as he would have been willing to contribute and cover the expenses for [X]’s dental appointments. It should be noted that the Family Consultant observed that [X] has visible tooth decay, especially on her front teeth, but it was unclear to what extent the tooth decay has progressed.
41. [The Father] voiced concerns regarding [the Mother’s] actions in preventing him from spending time with [X] without providing any explanation. He alleged that two weeks ago, he was unable to have [X] for the weekend. When he inquired with [X], she informed him that her aunt and uncle from [Country A] had come to visit, and her mother had conveyed that she could not visit him because she needed to stay with family. [The Father] reported that [the Mother] did not make any effort to contact him and inform him that [X] would not be coming. Additionally, [the Father] claimed that in 2022, he missed half of the summer holidays with [X] because the maternal grandparents were visiting [the Mother]. He expressed disappointment in [the Mother] for not engaging in communication or negotiation regarding visitation arrangements.
…
Mental Health
43. [The Mother] reported that she received a diagnosis of anxiety and depression in 2022, a time when she had three court hearings in the same month. She mentioned that she was prescribed medication during that period and currently sees a psychologist once a month, finding this to be beneficial.
…
45. [The Father] mentioned that he received a diagnosis of anxiety and depression in 2022 following the ongoing Court dispute. He explained that he was prescribed medication for these conditions, but it did not agree with his digestive system. Currently, he takes [prescribed medication] on an as-needed basis.
…
Discussion of proposals
54. [The Father] maintained that [X] should spend time with him every other week, starting from Tuesday after school until Friday morning. He believes that this arrangement would enable him to ensure that [X] attends all necessary dental and medical appointments. […]
…
57. One of [the Mother’s] main concerns centres around [X]’s sleeping arrangement at [the Father’s] house, where she shares a bed with him in his bedroom, while he sleeps in his underwear. [The Mother] deems this arrangement inappropriate and stated that [X] has expressed feeling uncomfortable about it. She reported that [X] has been showing reluctance to attend school on Fridays when she knows her father will be picking her up afterwards. This reluctance has manifested as [X] crying and refusing to go to school. […]
CHILDREN AND THEIR RELATIONSHIPS
58. [X], aged 7, displayed significant nervousness during her interaction with the Family Consultant, finding it challenging to separate from her mother. [The Mother] had difficulty informing [X] that she would be leaving, and that [X] had to visit her father over the weekend. […]
…
60. Suddenly, [X] became very upset and started crying, expressing her desire to be with her mother. She mentioned that her mother had told her she was going to visit her father and a nice lady, but she did not want to go because her father blamed her when his belongings fell down from the big pile. She disclosed that there was an incident where a microwave fell from her father’s pile of stuff and the glass door was broken. [X] continued to share that her father collects items from downstairs bins and the street and stores them throughout the house, including the living room, his bedroom, the kitchen, the toilet, and her bedroom. She revealed that she sleeps in the same bed with her father which makes her uncomfortable, however, she did not disclose any further information regarding this matter.
61. [X] shared about an incident when her father left her alone in the house at night with the lights off for about thirty minutes. She expressed that during this time, she was scared. [X] then repeatedly asked if her mother would come back, which made her cry. She also talked about her preferences, saying that she likes to eat fruits but her father does not allow her to have them in the morning. She reported that her father sometimes wakes up to prepare breakfast in the morning and goes back to sleep then wake up at 3:00 pm.
62. [X] described the living conditions in her father's house, explaining that there are large piles of items in the living room that reach up to the ceiling. She mentioned a bunk bed with a tiny couch underneath it, located in the living room. She stated that the mattress on the bunk bed has bed bugs because her father picked it up from the street. [X] expressed her strong desire not to see her father again. At a certain point during the discussion, she became unresponsive and declined to answer further questions.
OBSERVATIONS OF INTERACTIONS
…
68. Overall, the interaction between [X] and [the Mother] was very positive. They engaged in natural conversations, and there was a lot of laughter, creating a pleasant and enjoyable atmosphere in the room.
69. Observations between [the Father] and [X] took place after [X]’s interview with the Family Consultant. [X] was already upset about the separation with [the Mother]. When [the Father] entered the room, [X] began crying and refused to interact with him. [The Father] attempted to offer her some of her stuffed animals, but she declined and placed them on the table. [The Father] tried to engage [X] in conversation, asking her about her school, but she ignored him and averted her gaze. He also inquired about some flowers she had made earlier, and she continued to look away. [X] remained very upset and continued to cry silently. [The Father] persisted with questions, asking if she had eaten ice cream and if she wanted to talk to [her stuffed animals], to which she responded with a refusal and pushed the toys away
70. [The Father] persevered and attempted to engage [X] in conversation by asking her various questions. However, [X] continued to ignore him and deliberately avoided interacting with him. [The Father] made efforts to communicate with [X] using her stuffed animals […] but she pushed them away.
71. Towards the end of the observations, [X] approached the Family Consultant and tried to cling to her, expressing her unwillingness to leave with her father. The Family Consultant spent a considerable amount of time convincing [X] that her mother had left and that she needed to depart with her father. [The Father], standing on the other side, observed the situation and appeared desperate.
72. Despite the Family Consultant's efforts, [X] remained adamant that she did not want to leave with [the Father]. Upon exiting the office, [X] refused to separate from the Family Consultant and insisted that she did not want to go with her father, continuing to cry. When [the Father] tried to take [X]’s arm, she reacted by hitting him, which occurred several times. Eventually, the Family Consultant suggested that maybe her father could communicate with her mother to arrange for her mother to pick her up, and that she could return to her father when she felt ready. Following this suggestion, [X] walked towards her father, although she still appeared very sad.
73. In general, the interaction between [the Father] and [X] was marked by tension, as [X] consistently refused to engage with her father and avoided making eye contact. There was a notable absence of affection between [X] and [the Father], even in situations where it would have been expected, such as when [X] clung to the Family Consultant and resisted leaving with her father. [The Father] appeared desperate and relied on the Family Consultant to comfort [X] and encourage her to leave with him.
EVALUATION
…
83. It appears that due to the limited space in [the Father’s] home, he has chosen to share his bed with [X] in his room. This assessment concurs with [the Mother’s] narrative that the absence of a dedicated bedroom and bed for [X] in [the Father’s] home could impact her sense of comfort and belonging. [The Mother’s] claims that [the Father] sleeps in his underwear while sharing the bed with [X] aligns with [X]’s statement that she feels uneasy sharing a bed with her father. This suggests that [the Father] may not be prioritizing [X]’s needs in his household and may be struggling to meet her basic requirements, particularly in providing her with her own bedroom and personal space where she can sleep, study, and play. [X] needs a well-organized environment that is free from potential hazards. It is suggested that [the Father] establish a separate room for [X] to foster her ability to express her personal style, offer her the necessary privacy, and instil a sense of responsibility in her.
84. Furthermore, [the Mother] has expressed concerns that [the Father] continues to bathe [X], including washing her private parts, to the extent that [X] feels uncomfortable. This aligns with [X]’s own disclosures, although she only mentioned discomfort related to [the Father’s] involvement in her bathing. It is worth noting that [the Mother] reported [X]’s disclosures to Child Protection, but they determined that there were no immediate concerns. [The Father], on the other hand, denied bathing [X]’s private parts and stated that he only supervises her during bathing because she previously revealed not having taken a shower for two weeks. While there is no corroborating evidence from Child Protection and Victoria Police regarding this matter, [X]’s disclosure suggests that she is beginning to feel uneasy about bathing in the presence of [the Father]. Therefore, it would be advisable for [the Father] to provide [X] with the opportunity to bathe independently without supervision, in order to respect her growing need for privacy.
…
86. The most serious concern at this point in time is the presentation of [X], who appeared as upset and exhibiting signs of emotional dysregulation. During the observation sessions, [X] displayed strong resistance to engaging with her father, adamantly refused to accompany him, clung to the Family Consultant, and required significant persuasion to eventually leave with her father. The most plausible explanation for [X]’s behaviour may be rooted in her potential exposure to her parents' open discussions about the ongoing disputes, with her actions serving as a way to express the confusion and anger she is experiencing as a result. [X]’s strong views and wishes to remain living with her mother while avoiding time with her father could be driven by her seeking a great relief from not being forced to move between the two conflicted households and seeking the cessation of the ongoing conflict between her parents.
…
88. Another compelling explanation to [X]’s behaviour could be due to [the Mother’s] stance. [The Mother] is susceptible to experiencing heightened anxiety whenever [X] spends time at [the Father’s] home, especially during overnight visits, due to her concerns about potential risks he may pose. [The Mother’s] worries are understandable and likely played a role in her previous decision to suspend [X]’s visits with [the Father]. However, there is a possibility that [the Mother’s] concerns have been amplified by her own anxiety, and she may unintentionally convey this anxiety to [X]. This can have a negative impact on [X]’s sense of emotional security and overall well-being. It is conceivable that [X] may develop unreasonable anxiety about her father and spending time with him, which could lead to her feeling unsettled during visits to his care.
…
RECOMMENDATIONS
102. It is recommended that [X] spends time with [the Father] every Tuesday after school until 7:00 pm, every second Saturday from 10:00 am until 6:00 pm and every second Sunday from 10:00 am until 6:00 pm. If [the Father] has demonstrated that he has created a suitable bedroom and space for [X] as well as engage with mental health support service, it is recommended that [X] spends time with [the Father] every second weekend from Saturday 10:00 am until Sunday 4:00 pm.
103. It is recommended that [the Father] participate in Tuning into Kids and the Circle of Security program.
February 2023 Final Hearing
With the September 2023 Family Report released to the parties, the matter came on for a Final Hearing on 15 February 2024. All parties were represented by counsel. The circumstances were that the Mother had filed material, but the Father filed his material late, and only a week prior to the hearing. The Father sought an adjournment of the Final Hearing and her Honour determined that the matter should be adjourned. Her Honour then dealt with the matter on an interim basis and, as pressed by the Mother, ordered that the Father have four hours – but not overnight time – each alternate weekend with X in a public place, and he was restrained from attending his own home with X.
The Orders of 15 February 2024 were as follows:
THE COURT ORDERS THAT:
1. The final hearing listed 15 and 16 February 2024 is vacated.
2. The matter be adjourned to 24 June 2024 at 10.00am for final hearing (with an estimated hearing time of 4 days).
…
7. The child, [X] (born [in] 2016) spend time and communicate with the father each alternate Saturday commencing 24 February 2024 for up to 4 hours from 10:00am to 2:00pm in a public place.
8. The father be restrained by injunction from taking [X] to his home pending further order, which is currently at [K Street, Suburb D].
…
11. All changeovers between the parties are to occur at the entrance of the [Suburb L] Police Station.
12. Order 11 of the orders made 5 December 2023 pursuant to section 102NA for both parties remain in full force and effect.
…
Time did not occur following February orders
The first of the court-ordered four-hour sessions was to occur on 17 February 2024.[2] The Mother asserts that she attended with X for the changeover at the Suburb L Police Station, but the Father did not attend or notify her that he would not be attending. On 24 February 2024, both parties managed to attend the Police Station and the Mother asserts that X refused to move from her care to the Father's care for the court-ordered time to occur. It is common ground that the court-ordered time did not occur. On 2 March 2024, the Mother did not attend. It is unclear to me whether the Father attended or not. On 9 March 2024, the Father had advised the Mother that he was unwell and could not attend. The court-ordered time did not occur.
[2] But see the last paragraph of these reasons.
On 16 March 24, the Mother and the child and the Father attended the Suburb L Police Station, and it is common ground that the child did not move from the Mother's care to the Father's care. The Mother asserts that this was because X refused to go with the Father.
On 30 March 2024, again, both parents and the child managed to get to the Suburb L Police Station where it is common ground that the time again did not occur, and the Mother alleges that this was because X refused to remove from her care to the Father's care. On 6 April 2024, both parents and X managed to get to the Suburb L Police Station, and it is again common ground that X did not move from the Mother's care to the Father's care.
On 20 April 2024, the Mother attended at the Suburb L Police Station with X. The Father did not attend and, as I understand it, the Mother alleges that she was not put on notice that he would not be attending.[3] On 4 May 2024, time was due to be had with a changeover at the Suburb L Police Station. The Father provided the Mother with notice that he was unwell and the time did not occur. On 18 May 2024, both parents managed to get to the Suburb L Police Station, and it is common ground that the time did not occur and that X did not move from the Mother's care to the Father's care. On 2 June 2024, it is common ground that both parents managed to get to the Suburb L Police Station with X, but again X did not move from the Mother's care to the Father's care.
[3] See last paragraph of these reasons.
The appeal
The Father had previously retained solicitors and those solicitors filed a Notice of Ceasing to Act on 15 March 2024. On 22 March 2024, the Father filed a Notice of Appeal. A Notice of Appeal is required to be filed within 28 days of the making of the orders. The Orders were made on 15 February 2024, and it is common ground that the formal or written form of the Orders were not provided to the parties until 22 February 2024. The Father asserts, and the Mother does not have a basis to dispute his assertion, that he attended the court registry in person on three occasions, hoping to find the written copy of the Orders. He did not, because those Orders had not been taken out. The Mother is not yet prepared to even conceive the Father did attend as he said he did.
The Father filed a Notice of Appeal on the 28th day after he received the 15 February 2024 Orders, and the matter came before an Appeal Senior Judicial Registrar to deal with the issue of an extension of time. The Senior Judicial Registrar declined to extend the time for the filing of the Notice of Appeal and the matter was struck out on 9 April 2024.
Proceedings this day
The Mother filed an amended response on 6 June 2024 where she effectively sought that the Father not spend any time with X. The Father retained new solicitors, or attempted to retain new solicitors, at the end of May, and they then attempted to obtain a grant of legal aid or the transfer of a grant of legal aid. As soon as they were able to do so, on 17 June 2024, the Father’s current solicitors filed a Notice of Address for Service. However, the Father did not file trial material, nor indicate what trial material he would rely upon.
Adjournment
The Father indicated via his solicitors that he would press for an adjournment this day, and he did so. I was insistent upon each of the parties being put on notice of just what orders the other sought (the outlines of case of the Mother and the Independent Children’s Lawyer (‘the ICL’) did not descend into detail about the orders sought and the Father did not file an outline of case at all), and the matter was stood down for a short period to address this.
When the matter was re-called, it was agreed – or acquiesced in – that it was necessary to adjourn the Final Hearing set to commence before me this day. I have real reluctance in adjourning this matter again and were this merely a contest between the Father and the Mother, I would not adjourn the matter and would press the matter proceed. However, this is not only an inter partes contest, but it is also an inquiry into the best interests of the child.
The position of the ICL and the Mother
The ICL's position is, and I infer was, that it would be significantly to X's disadvantage not to have any relationship with her Father at all. In those circumstances, the ICL was pressing – together with the Mother – that where the matter is adjourned, that the Father's existing time be suspended and that the Father spend supervised time at the H Contact Centre in Suburb J for up to three occasions in each year.
The position of the Father
The Father opposes that reduction in the time and does not seek that the Orders of 15 February 2024 continue, but rather, he presses on this interim hearing, where his non-filing of material has at least significantly contributed to the need for an adjournment, if not caused it, that the orders of Judge Small made 20 March 2020 be reinstated. The Father also presses that he be informed and be able to consult doctors in regard to X’s dental and health care.
In her affidavit,[4] the Mother deposed to her advice regarding X’s dental health:
18. [X] still has baby teeth and her adult teeth have not yet grown through.
19. I confirm [X]’s dentist advised me that treating decay on baby teeth is not the recommended course of treatment.
20. [X]’s baby teeth are due to fall [out] naturally over the next year.
…
[4] Filed 6 June 2024.
The Father also disagrees that any updated family report be undertaken by Ms M, who prepared the family report that I have referred to before. On or about 24 October 2023, the Father filed a detailed affidavit setting out his account of what he perceived as the unfairness of the Family Report:
12. There are many important pieces of information in the family report that were not included and were wrong. Also, the family consultant was adamant about doing the observation session on the changeover time when the designated time for the applicant (father) was happening and the family consultant forced the father (applicant) to come on the day [X] was spending weekend time with the father to test the chaotic atmosphere where [X] normally pretend to cry and refuse to come with the applicant (father) because of [X] loyalty to the respondent [the Mother]. The family consultant purposely trapped the father (applicant) to create a chaotic situation, so there was crying and rejection of [X] to come to the father. […]
The ICL presses that the same report writer continue to be involved on the basis that X has already met too many professionals in her life and it is contrary to her interests to meet yet another. I infer, although no party relies on any report from any child protection authority, that X has been interviewed by child protection professionals, as well as family report writers, and, recently, by the ICL. It is clear enough that the Family Consultant's assessment, in the September 2023 report, was that X finds the very prospect of being interviewed as distressing.
Decision
On this interim hearing, I must make a decision in accordance with the Act. Since the amendments came into force on since 6 May 2024, the objects that apply are:
Section 60B Objects of Part
The objects of this Part are:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
It is significant to me that the objects previously applied, including section 60B(1)(a), have been repealed, or Parliament has determined that that no longer applies. Section 60CC has also been substantially amended, and currently provides:
Section 60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2)
...
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including the safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
(emphasis added)
Following the words in 60CC(2)(a) and 60CC(2A), I must consider any history of family violence and any family violence order that applies. It is clear enough that another Judge found, in her decision of 20 March 2020, that the Father had perpetrated family violence on the Mother, although those reasons do not go on to specify just what that was. That observation was in the context of the presumption of section 61DA that then applied, and that has now been repealed. Nonetheless, I am satisfied that that is a finding that I must take into account on this interim hearing.
In regard to the Intervention Order, it is also significant that the Intervention Order that I have referred to earlier took place after a two-day contested hearing, and that a Magistrate was satisfied that it was proper to make such an order. By section 60CC(2A)(b), I must take into account that Intervention Order.
Section 60CC(2)(b) provides that I must take into account any views expressed by the child. The Father's case is that the views expressed by X to the report writer arise from the Mother's antipathy to him and desire to punish him. The report writer, whose evidence has not yet been tested, did not so conclude, and it is clear enough that in the report writer's opinion, those wishes were X’s own wishes. That is notwithstanding that the report writer opined – as she did at paragraphs 85 and 86 of the report, included above – to the effect that it was the conflict between the parents that was likely impacting on X’s distress.
Nonetheless, the Mother's allegations about the state of the Father's home are clear enough. I sit here on the day of the second final hearing listed after those allegations were well and truly ventilated in the Family Report. I have no evidence from the Father about the state of his home at all.
On the Father's case – as persuasively put by his solicitor – he has been disadvantaged in placing his own evidence before the court because he has been unrepresented since 15 March until 17 June of this year. Lack of legal representation is a disadvantage and not a privilege. The Father has demonstrated, if in verbose and unfocussed terms, a significant capacity to put his side of the story before the court. He did so in a long and detailed affidavit, setting out, from his perspective, the flaws in the Family Report, parts of which I've recited above. He also set out, in his grounds of appeal, in an articulate fashion, matters that he felt were unfair.
No party is entitled to an adjournment of a final hearing. At this moment, I am stuck with the situation that I do not have the Father's detailed evidence as to the matters raised in the Family Report, save for strongly put denials of the broad thrust of the Mother's case. I know enough about his case to know that he puts the responsibility for the present disaster of X's life at the foot of the Mother.
The family report writer’s evidence has not been tested, though it may be on the next final hearing (which I note will be the third time this matter has been listed for final hearing). But, at this point in time I know the Father strongly disagrees with the conclusions of the report writer. I place significant weight on that report on this interim hearing. That does not mean I will accept the observations in the report or the recommendations on a final hearing. The Father will then be provided with yet another opportunity to test those observations and recommendations by the filing of trial material to put his side of the story, and by having his lawyer ask questions and put propositions to the report writer.
The Family Report, as recent as October 2023, did not recommend the radical change in the Father's time with X to be moved to effectively what could be described as mere identification time, that is, three times of supervised time each year. I am satisfied in the circumstances of the events after the family report – that is, after the Orders of the Judge on 15 February – that it is in the best interests of X that time move to the formal supervised setting. However, I am not satisfied that that should be limited to three times a year. I'm not satisfied that there is a good and proper reason consistent with X's best interests that that time or opportunity to spend time with the Father should be reduced to three times a year.
I am satisfied that the regime of alternate weekend time, in terms of the time being on each alternate weekend as determined by another Judge (on 15 February 2024), on the information I have, is appropriate. I note that this is considerably less time than what the family report contemplates. Nonetheless, the observations of the report writer, combined with the failure of the parents to implement the February Orders since they were made, compels me when I consider all of section 60CC, to conclude that those Orders are unfortunately necessary to promote the safety of X and the safety of the Mother. And that they are the most likely orders, considering the developmental, psychological and emotional and cultural needs of X, to promote her welfare. In addition, such an arrangement of supervised time at the contact centre, on the evidence I have, is also the most likely outcome to enable X to have a relationship with her Father at all.
On this interim hearing, I apply the observations of the Court in regard to Goode & Goode (2006) FLC 93-286. Goode & Goode was an interim hearing decided when the law was significantly different as to how it has now come to pass after 6 May 2024. Nonetheless, I am satisfied that the general observations in Goode & Goode apply to this case, with necessary amendments to take account of the very significantly changed law. Those observations are as follows:
74.That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child's best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC…
…
82.In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)-(j)(These refer to the presumption of the now repealed section 65DAA and so no longer apply.)
The emphasis of the new section 60CC is upon arrangements that would promote the safety of the child and the parents, but the circumspection that a judge must have, as urged by either Goode & Goode or SS & AH [2010] FamCAFC 13, as confirmed by Eaby & Speelman (2015) FLC 93-654 at [18] & [19], continue to apply:
88.…In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
…
100.The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In all those circumstances, I am satisfied that the broad thrust of the orders as proposed by the Mother and the ICL have much to warrant them, save that I am not satisfied that the time at the H Contact Centre in Suburb J should only occur on three occasions each year, but should occur each fortnight, and in addition to those orders, I will order that the parties do all acts and things to forthwith make application to the H Contact Centre for that time to occur.
Otherwise, I intend and will make orders that will confirm the existing orders and what I will call the ‘surviving’ or ‘existing’ orders of 20 March 2020. I am satisfied, as the parties urge me, that there should now be only one set of orders for the parties to refer to – as opposed to having to refer to the 20 March Orders, the 15 February Orders and these orders – and I will amalgamate the surviving orders into one order as best I can. I am grateful for and assisted by the discussion of what orders remain from the Mother's counsel. So, I will not make the orders sought in the minute proposed by the Mother and the ICL,[5] but will remake the orders that survive the 15 February 2024 and the 20 March 2020, orders.
[5] Tendered and exhibited as M&ICL1 24 June 2024.
The parties agree that there should be an updated family report. The remaining controversy for me to rule on is whether it should be by Ms M or not. The Father is deeply unhappy with the report undertaken by Ms M. Ms M’s report and recommendations, though less time than ordered on 20 March 2020, are far more generous to the Father than the orders that the Mother seeks. And I have read the Father's complaints in his affidavit about the family report writer.[6] I am not satisfied that there is a proper basis to disqualify the family report writer. That one of the parents strongly disagrees, and feels unhappy, with the report is not a basis to retain another report writer. Hence, there will be an updated family report, as the parties request, but it will be undertaken by Ms M, if she is available. I hope she is. She may not be.
[6] As recited above.
After Ms M's report is tested by further evidence (which would include the Father's side of the story being filed for a final hearing) and if proper notice is given to the report writer to be available, then after the testing of her observations and conclusions in cross-examination, I would then make a decision. I am able to adjourn the matter to 2 December for further hearing, which I hope will be sufficient time for the H Contact Centre supervised time orders to be put in place, and a report from that service obtained, and for the updated report from Ms M. I will make further trial directions.
Following giving reasons, I requested the parties to bring to my attention any matters that I had missed and the Father was then able to address me directly, which I permitted him to do. He pointed out that the 15 February Orders commenced on 24 February, and there was no requirement to attend on the 17th of that month, and that in regard to 20 April, that he did give notice that he was not going to attend, and that he emailed. And further, he then pressed, and I agreed, that the minimal expense at the contact centre be equally shared between the parents.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 11 July 2024