Vance & Tuffin
[2023] FedCFamC1F 892
•18 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vance & Tuffin [2023] FedCFamC1F 892
File number(s): ADC 4956 of 2018 Judgment of: KARI J Date of judgment: 18 October 2023 Catchwords: FAMILY LAW - PARENTING – Where final parenting orders were made by consent Legislation: Family Law Act 1975 (Cth) s 91B Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 18 October 2023 Place: Adelaide Counsel for the Applicant: Mr Fryer Solicitor for the Applicant: Dixon Gallasch Lawyers Counsel for the First Respondent: Ms Smith Solicitor for the First Respondent: Picotti-Ellis Legal Counsel for the Second Respondent: Ms Gregory Solicitor for the Second Respondent: Stevens Law Counsel for the Independent Children's Lawyer: Mr Hemsley Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 4956 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VANCE
Applicant
AND: MS TUFFIN
First Respondent
MR ALVARADO
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
18 OCTOBER 2023
UPON NOTING:
(a)The applicant no longer pursues any time spending Orders for X born in 2012 other than at times as may be agreed between himself and the first respondent mother;
(b)That the first respondent mother does not seek any specific holiday time with Y born in 2015 beyond the time arising from Orders 4 and 5 herein, other than what may be agreed between herself and the applicant father;
(c)That the parties all agree that the sibling relationship between X and Y should be encouraged, and each will cooperate to facilitate regular age-appropriate activities where X and Y can spend time together additional to any time that may occur pursuant to or incidental to these Orders.
THE COURT ORDERS, BY CONSENT:
1.That all previous parenting orders are hereby discharged.
Y
2.That the applicant father shall have sole parental responsibility of Y born in 2015 PROVIDED THAT:-
(a)The applicant father shall inform the first respondent mother as to any decision he makes concerning the long-term health, care and welfare of Y; and
3.That Y shall live with the applicant father.
4.That Y shall spend time with the first respondent mother each alternate weekend from 10.00 a.m. Saturday until 5.00 p.m. Sunday commencing 28 October 2023.
5.That Y shall spend time as between the parties for special occasions as follows (and to the extent necessary orders 3 and 4 herein shall be suspended): -
(a)That for Christmas in odd numbered years, Y be in the father’s care from 10.00 a.m. on 24 December until 5.00 p.m. Boxing Day;
(b)That for Christmas in even numbered years, Y be in the care of the mother from 10.00 a.m. on 24 December until 5.00 p.m. Boxing Day;
(c)That for Easter in even numbered years, Y be in the care of the father from the conclusion of school Maundy Thursday until 5.00 p.m. Easter Saturday and with the mother from 5.00 p.m. Easter Saturday until 5.00 p.m. Easter Monday;
(d)That for Easter in odd numbered years, Y be in the care of the mother from 5:00pm Maundy Thursday until 5.00 p.m. Easter Saturday and with the father from 5.00 p.m. Easter Saturday until 5.00 p.m. Easter Monday;
(e)That Y be in the care of the father for each Father’s Day as may be agreed and in default of agreement, from 10.00 a.m. until 5.00 p.m. on each Father’s Day provided that he be in the care of the mother for each Mother’s Day at the same times;
6.That Y shall otherwise spend further or other time as between the parents as may be agreed between the parents in writing.
7.That the mother shall ensure Y sleeps independently in his own bed, within the main dwelling of her current residence for not less than 3 alternate weekends out of every 4.
8.That handover shall occur as agreed between the parties in writing and in default of agreement, then at the McDonald’s Restaurant in Suburb B, (on the corner of D Street and C Street, Suburb B).
9.That each parent be at liberty to attend at any school or extra-curricular activity where Y is enrolled or participating from time to time, including parent/teacher interviews, performances, sports days or any other event where parental attendance is permitted.
10.That each parent be at liberty to obtain copies of all information of Y from any school or extra curricula activity where he may be enrolled or participating from time to time including reports, newsletters, photographs, circulars and their like (at their own cost and arrangement).
11.That each parent will notify the other of them in the event of Y requiring any serious medical, dental or health treatment with such notification occur as soon as practicably possible in the case of an emergency or within 24 hours of a non-emergency.
12.That each parent do have liberty to attend at any medical, dental or allied health care location where Y is to attend for an appointment, consultation, admission or similar reasons and that each parent is further at liberty to obtain any information sought by them from any medical or allied health care professional.
13.That each parent shall keep the other of them informed within 24 hours of any changes to their address or contact details.
14.That each party is hereby restrained by injunction on a without admission basis from abusing, threatening, harassing or denigrating the other of them in the presence of the Y or within his hearing or from allowing another person from doing so.
15.That the mother is hereby restrained by injunction from using or being under the influence of any substance (including but not limited to medically prescribed marijuana), or using non-prescribed marijuana or any other illicit substances, at any time Y is in her care or for 24 hours prior thereto.
16.That on a without admission basis, the mother will facilitate the early return of Y to the father should Y become distressed in the mother’s care and cannot otherwise be settled, or if the mother requires respite for any other reason.
X
17.That the first respondent and second respondent shall have equal shared parental responsibility of X born in 2012.
18.That X shall live with the mother.
19.That X shall spend time with the second respondent on such times and dates as agreed between the first respondent and the second respondent in writing.
20.That the applicant shall be at liberty to spend time with X born in 2012 at times agreed to by the first respondent mother PROVIDED THAT such time does not interfere with the second respondent’s time spending with X.
21.That all handovers shall occur as agreed between the applicant, first respondent and second respondent as the case may be, in writing and in default of agreement, then at the McDonald’s Restaurant in Suburb B, (on the corner of D Street and C Street, Suburb B).
22.That the first and second respondents are each hereby at liberty to:-
(a)Attend X’s school events, extra curricula activities, presentations and other functions to which parents are ordinarily invited to attend;
(b)Receive updates, notices, newsletters, photographs and reports from any other school or extra-curricular institution which X is enrolled from time to time at their respective costs and arrangement;
And to these ends, the second respondent is at liberty to provide a copy of this Order to any school or extra-curricular institution as the case may require.
23.The first respondent and the second respondent shall be at liberty to have access to X’s medical reports at their own expense.
24.In the event of a medical emergency involving X, the party in whose care he is in, will notify the other party as soon as practicable via telephone and the first respondent and the second respondent are each hereby at liberty to attend upon X in the event of hospitalisation.
25.That the first respondent and the second respondent do keep each other fully informed as to their contact telephone number and residential addresses at all times.
26.That the first respondent and second respondent shall be entitled to reasonable telephone access with X during reasonable hours when X is not with them. The first respondent and the second respondent will allow X to call the other parent whenever X would like.
27.That on a without admission basis, the first respondent and second respondent are restrained and injunctions are hereby granted restraining each of them from:-
(a)abusing, denigrating or criticising the other party or the other party’s family in the presence of X, or from allowing any other person to do so;
(b)consuming any illicit substance or drinking alcohol to excess 24 hours before X coming into his or her care or whilst X is in his or her care;
(c)discussing these proceedings or any allegations or issues raised in these proceedings with X, or in his presence, or from allowing the other person from doing so;
(d)publishing any information from these proceedings or any issues or allegations raised in these proceedings on any form of social media whatsoever, including but not limited to Facebook.
PROCEDURAL ORDERS
28.That each party shall bear their own costs.
29.That the appointment of the Independent Children’s Lawyer is hereby discharged except in relation to the determination of costs and in relation to any appeal.
30.That all extant applications are hereby dismissed as finalised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vance & Tuffin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
This matter comes before me in relation to two children. X, born in 2012, and Y, born in 2015.
X’s father is the second respondent and Y’s father is the applicant in these proceedings. The proceedings have had some significant history, both in the court and, in more recent times, before me. I do not propose to traverse all that has occurred in these proceedings, other than to say that I am cognisant of the history of the proceedings which are at the forefront of my mind.
Significantly, I am aware that, as a result of concerns that I have held over the course of the proceedings, that I made a range of orders directed to assisting the court to understand the risk factors that exist for these children. In particular, the risk factors that exist arise from matters pertaining to the mental health of the parents, matters pertaining to illicit substance use, matters pertaining to family violence and, additionally, matters related to the mother’s housing arrangements. I am cognisant that I have made orders in the proceedings pursuant to s 91B of the Family Law Act 1975 (Cth) (‘the Act’), inviting the Minister for the Department for Child Protection to intervene in these proceedings.
In response to those orders and having done a preliminary investigation, the Department for Child Protection (“the DCP”) declined to intervene in these proceedings. However, I refused to excuse the DCP from these proceedings until such time that they had completed more fulsome work, particularly, with the mother to ensure that the mother was connected with a range of appropriate support services.
My concerns, so far as the mother is concerned, relate to both her housing and her mental health. The department have taken the view and they have assessed the child X to be safe in the mother’s care. Additionally, the department have assessed the child Y is safe in his father’s care.
I have, I must say had, and I continue to have concerns about the mother’s housing arrangements. I understand that she is in the most urgent category on the waiting list of the housing trust of South Australia for housing assistance. However, she has yet to be allocated housing, and how long she will languish with a priority allocation pending is unknown.
On any view, the mother’s housing arrangements are not satisfactory. She presently lives at a property with her mother and her mother’s new partner. The mother does not live in the main home. However, arrangements, as a result of the involvement of the Department for Child Protection, have now been made for X to have a bedroom in the main house. Additionally, I am aware, from the mother’s affidavit filed on 13 April 2023, that the mother has now installed a bunk bed in that bedroom, such that at times when both children are in her care, their sleeping arrangements are such that they are in the main homestead and not with the mother.
My understanding is the mother has an arrangement where she sleeps in a shed on the property and the children are in the main homestead. As I say, that is an unsatisfactory arrangement whichever way you look at the matter. But from my perspective, it is particularly unsatisfactory, given the significant mental health issues that the mother suffers from, but also her general health. Unfortunately, that is not something about which the court has any power or control, and, in circumstances, where the Department for Child Protection has deemed those arrangements to be appropriate, there is not much that this court can do about those matters.
Against that backdrop, I am aware that the parties, in more recent times, have engaged in extensive negotiations. The court, and they, have the benefit of various reports prepared in these proceedings, including, but not limited to various family reports, the first of which was prepared as far back as 2 September 2019, but more recently, a child impact report prepared on 27 January 2023. Additionally, the parties and the court have had the benefit of various reports prepared by the Department for Child Protection in response to the orders made by me pursuant to s 91B of the Act. At various times additionally, the court and the parties have had the benefit of information provided by the co-located SAPOL and Department for Child Protection officers that assist this jurisdiction from time to time.
It is with all of that information in mind that the parties have conducted negotiations to resolve and finalise the parenting arrangements for both children. In essence, the arrangements are such that Y will continue to live with the father, and he shall spend alternate weekend time with the mother. The child X will continue to live with the mother, and, subject to any agreement between the mother and X’s father, the second respondent, X will spend time with the second respondent. Importantly, from my perspective, the children, who are siblings, will spend time together on alternate weekends and on special occasions when the child Y is spending time with the mother. I am conscious that both children are craving the opportunity to spend meaningful time with each other. So much so is obvious by those matters raised in the child impact report of 27 January 2023.
This matter has had a difficult trajectory, given the competing risk factors that I have identified, and the difficulties that the mother in particular faces and has faced. Whatever the case may be, it strikes me that the current arrangements are the best that can be made of the current circumstances for these children. While I do have reservations about the appropriateness of the mother’s living arrangements, I hope that in due course, those arrangements will become more permanent and secure and, frankly, more humane than they presently are.
However, doing the best that I can and understanding that the children’s needs are respectively being met by the present arrangements as they have been for some time, I am satisfied, as I say with some reservations, that the orders that the court is now being asked to make are ones that are in the children’s best interests.
I make it clear, however, that I continue to have concerns, but in the absence of any other alternatives, the court is faced with some significant difficulty. While I am conscious that I could decline to make the orders and the parents could enter into a parenting plan, it is my view that it is more appropriate for orders to be made by this court, in all of the circumstances of these proceedings, and particularly given the long history of the matter.
It is for all of those reasons, and with the view to avoiding the potential for further litigation in the future, that I consider it appropriate to give the court’s imprimatur to the arrangements that the parties have been able to negotiate and agree with the assistance of the Independent Children’s Lawyer.
I am additionally comforted by the fact that both Department for Child Protection and the Independent Children’s Lawyer, while the latter having the same reservations as the court, do not propose to stand in the way of the agreement which the parties have reached.
I am also comforted by the fact that the parties have been able to reach an agreement. In my view, that bodes well for the future.
NOTE:
These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 20 October 2023
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