Vaughan & Vaughan (No 2)
[2025] FedCFamC1F 129
•28 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vaughan & Vaughan (No 2) [2025] FedCFamC1F 129
File number(s): ADC 5154 of 2022 Judgment of: KARI J Date of judgment: 28 February 2025 Catchwords: FAMILY LAW – CHILDREN – Interlocutory proceedings – Where there are five children – Where three of the children have high needs – Where there are orders for time spending between the children and the father to take place at a Children’s Contact Service – Where the father seeks to vary the time spending arrangements for the children and seeks equal time with four of the children – Where the father has not complied with orders for time spending – Where each parent has concerns for the other parent’s parenting capacity – Where the father was self-represented and during his submissions made admissions of instances of family violence – Where it does not appear that there has been a change that would warrant the Court revisiting the previously ordered parenting arrangements – Orders made for the father to spend time with the children at the Children’s Contact Service
FAMILY LAW – PROPERTY – Where the Court’s decision in relation to the mother’s interlocutory financial application is reserved – Where the mother seeks to reopen the financial aspect of the interlocutory proceedings – Where reasons continue to be reserved pending the outcome of the application to reopen
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33, 1.34, 2.18, 5.08, 7.18, 7.23, 10.26, 10.27, 12.06, Ch 7, Div 7.1.5
Cases cited: Deiter & Deiter [2011] FamCAFC 82
Eccheli & Eccheli [2024] FedCFamC1F 234
Fiedler & Vitale [2025] FedCFamC1A 7
Goode & Goode (2006) FLC 93-286
Hall & Hall (1979) FLC 90-713
Vaughan & Vaughan (No 2) [2024] FedCFamC2F 371 Vaughan & Vaughan (No 3) [2024] FedCFamC2F 371
Vaughan & Vaughan [2023] FedCFamC2F 1682
Division: Division 1 First Instance Number of paragraphs: 120 Date of hearing: 28 November 2024 Place: Adelaide Counsel for the Applicant: Mr Tredrea Solicitor for the Applicant: Camatta Lempens Pty Ltd The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Hemsley Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 5154 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VAUGHAN
Applicant
AND: MR VAUGHAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
28 FEBRUARY 2025
THE COURT ORDERS THAT:
Parenting
1.That until further order:
(a)The father shall spend supervised time with the children W born 2008, X born 2010, Y born 2012 and Z born 2012 (collectively referred to as “the children”) at the FF Children’s Contact Service, Suburb R (“Suburb R CCS”) in their “on‑site unsupervised scheme” on the following basis:
(i)Time spending shall take place at dates and times as can be accommodated by the service, provided however that such time occur each alternate weekend and that it not exceed a period of two hours on each occasion;
(ii)The parties shall both comply with the prescribed terms of the service;
(iii)The children are not to leave the premises of the service; and
(iv)The father is restrained by injunction from discussing these proceedings, or any issue arising in the proceedings with the children at any such time spending.
2.The father is restrained by injunction from recording or transcribing in any way any appointments he attends with any expert instructed in the parenting proceedings (including but not limited to any Psychiatrist, Court Child Expert or independent Report Writer), and/or from permitting or facilitating any other person doing so on his behalf.
3.The parties are each restrained by injunction from discussing these proceedings or any issue arising in these proceedings with the children or from permitting any other person to do so.
4.Liberty is granted to the Independent Children’s Lawyer (“ICL”) to have the parenting proceedings relisted in the event that the ICL is informed that the Suburb R CCS is no longer willing to facilitate the father’s time spending with the children.
5.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the children V born 2008, W born 2008, X born 2010, Z born 2012 and X born 2012 are to attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) NOTING THAT the Court shall appoint a Court Child Expert/Family Consultant who is a clinical psychologist, for the purposes of the preparation of a family report, such report to be released at the first available date and that the family report address:
(a)any views expressed by the children;
(b)the matters set out in ss 60CC, 61D(3) and 61DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the children and upon the children’s relationship with the mother if the Court made orders as sought by the father;
(d)the impact upon the children and upon the children’s relationship with the father if the Court made orders as sought by the mother;
(e)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the children.
6.Not later than 4.00 pm on 7 March 2025 the parties must provide their contact telephone numbers and email addresses to …@....
7.Each party will do all things necessary to ensure they each and with the children referred to in Order 5 attend upon the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
8.The parties and the children referred to in Order 5 shall attend for interviews at such times, dates and places, and by such means as the Court Child Expert/Family Consultant may advise.
9.The Court Child Expert/Family Consultant shall be at liberty to inspect any material filed by the parties, together with orders made and reasons for judgment delivered in these proceedings, including but not limited to the reasons of Judge Kirton delivered 21 December 2023, the reasons of Judge Dickson delivered 27 March 2024 and these reasons delivered 28 February 2025.
10.Upon the family report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
11.Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
12.Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.
13.The parties’ competing interlocutory parenting applications do otherwise stand dismissed.
Procedural
14.The proceedings be referred to the pool of matters awaiting trial.
15.The Application in a Proceeding filed by the mother on 28 February 2025, to reopen the interlocutory financial proceedings, be listed for interim hearing (1 hour allowed) on 23 April 2025 at 10:00 am.
16.The mother forthwith effect service on the father of the Application in a Proceeding filed 28 February 2025 together with the affidavit in support.
17.No later than 4:00 pm on 28 March 2025 the father do file and serve a Response to the said Application in a Proceeding together with one affidavit in support of the same.
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 the pseudonym Vaughan & Vaughan has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
The substantive proceedings before the Court relate to both parenting arrangements for the parties’ five children, together with adjustment of property.
These reasons relate to competing interlocutory applications in relation to both aspects of the proceedings.
The present applications before the Court ostensibly arise from successive earlier orders made in relation to each the parenting and the financial proceedings.
It is the particularised case of the wife that the husband has breached various orders made in the financial proceedings and as a result she submits certain property should now be sold to crystalise the assets and liabilities of the parties to ensure that the financial proceedings can proceed to trial in an orderly fashion and/or any orders for adjustment of property can be effected without undue difficulties.
It is the husband’s unparticularised case that the wife has breached various parenting orders. Whilst the husband seeks a range of ancillary parenting orders, the thrust of his present application is that he wants the children to live between he and the wife in an equal shared care arrangement.
An Independent Children’s Lawyer (“ICL”) was appointed in the proceedings on 26 April 2023. The ICL was heard in relation to the interlocutory parenting applications and was otherwise excused from participation in the financial aspect of the interlocutory proceedings.
So far as the parenting applications are concerned, the mother and the ICL promoted the continuation of supervised time spending between the children and the father, as previously ordered by the Court.
Additionally, the ICL promoted the preparation of a Family Report by a Court Child Expert, with any such expert appointed to be a qualified psychologist.
The ICL and the mother promoted the progression of the proceedings to trial at the earliest possible time.
For the reasons that follow, the Court makes the parenting orders set out at the commencement of these reasons.
As can be seen, only parenting orders have been made. This is because on the day that the Court intended to publish reasons and make orders dealing with the extant interlocutory proceedings, the mother filed an Application in a Proceeding to reopen the hearing in relation to the interlocutory financial issues. While it remains to be seen whether the mother is successful in that application, orders shall be made listing that application to a hearing, and reasons shall otherwise continue to be reserved in relation to the interlocutory financial proceedings.
PRELIMARY REMARKS
I am cognisant that these are interim proceedings, and to that extent the parties have been confined in the material that they have been permitted to rely upon for the purposes of the present contest between them. More shall be said about the documents before the Court for the present interlocutory applications later in these reasons.
However, as I indicated to the parties during the course of the hearing, regard has been had to the entire court file to understand the procedural background of the proceedings.
To understand the present the present applications before the Court, it is also necessary to traverse the history of the litigation. In doing so, I have had regard to earlier orders made, and reasons published in these proceedings. Of significance the following orders and reasons shall be referred to throughout these reasons:
(a)Orders made 29 August 2023 by Senior Judicial Registrar Heuer;
(b)Orders made and reasons published on 21 December 2023 by Judge Kirton (Vaughan & Vaughan [2023] FedCFamC2F 1682);
(c)Orders made and reasons published on 27 March 2024 by Judge Dickson (Vaughan & Vaughan (No 2) [2024] FedCFamC2F 371);
(d)Orders made 7 and 8 August 2024 and reasons published on 8 August 2024 by Judge Dickson (Vaughan & Vaughan (No 3) [2024] FedCFamC2F 371);
(e)Orders made on 14 August 2024 by Judicial Registrar Farantouris; and
(f)Orders made by me on 9 September 2024.
Save as to the matters of controversy in the current applications before the Court, the earlier reasons published in the proceedings by each Judge Kirton and Judge Dickson, provide a helpful background to the parties and their circumstances. I accordingly have had regard to and have recited some of the factual matters summarised by each of them throughout these reasons. I have, however, had regard to all of the facts and the procedural history contained in their respective reasons, whether specifically referred to in these reasons or not.
The parties should also understand that each aspect of the proceedings, and the parties’ competing applications for either parenting orders or financial orders will be dealt with on their respective merits. Whilst the parties’ compliance with orders is generally relevant in the proceedings, and may well inform the orders pressed and made by the Court on the present applications, contrary to the husband’s submission, it is not the case that if the Court considers that the wife has breached certain parenting orders the Court is prohibited from granting the financial relief that she seeks, and conversely, if the Court is satisfied that the father has breached various financial orders that does not mean that the Court is prohibited from making the parenting orders that he seeks.
I accept, however, that if the Court is satisfied that a party has failed to comply with orders of the Court, then the Court may be asked to make orders consequential to such non-compliance.
To that end, the Court raised with the parties at the commencement of the hearing, various avenues open to the Court where the Court considers a party to be in default. The starting point in that regard can be found in r 10.26 and r 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), which provide as follows:
10.26 When a party is in default
(1) For the purposes of rule 10.27, an applicant is in default if the applicant fails to:
(a) comply with an order of the court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c) produce a document as required by Division 6.2.2; or
(d) do any act required to be done by these Rules or the Family Law Regulations; or
(e) prosecute the proceeding with due diligence.
(2) For the purposes of rule 10.27, a respondent is in default if the respondent fails to:
(a) give an address for service before the time for the respondent to give an address has expired; or
(b) file a response before the time for the respondent to file a response has expired; or
(c) comply with an order of the court in the proceeding; or
(d) file and serve a document required under these Rules; or
(e) produce a document as required by Division 6.2.2; or
(f)do any act required to be done by these Rules or the Family Law Regulations; or
(g) defend the proceeding with due diligence; or
(h) prosecute with due diligence any application the respondent has made in the proceeding.
10.27 Orders on default
(1) If a party is in default, the court may do any of the following:
(a) order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the party;
(b) set aside a step taken or an order made;
(c) order that a step in the proceeding be taken within the time limited in the order;
(d) order costs;
(e) prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;
(f) make any order that is to take effect if the party does not take a step ordered by the court in the proceeding in the time limited in the order;
(g) proceed on the non‑defaulting party’s evidence together with:
(i) if considered appropriate by the court—such evidence as the defaulting party has filed; and
(ii) such evidence as tendered during cross‑examination by the defaulting party; and
(iii) submissions by either party limited to the matters that are the subject of evidence;
(h) in exceptional circumstances—proceed on the non‑defaulting party’s evidence without hearing from the defaulting party.
(2) The court may make an order of the kind referred to in subrule (1), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the court thinks just.
The Court draws both of the parties’ attention to these provisions in the Rules and the consequences that may befall them if they are found in the future to be in default pursuant to r 10.26.
As identified by Judge Dickson in her 27 March 2024 reasons:
3.The parties have been engaged in litigation since 11 November 2022. In the 16 months since the proceedings commenced, the parties are only marginally more advanced than they were after the proceedings commenced.
4.Despite being in protracted litigation for 15 months, the parties are yet to attend a Conciliation Conference to try to resolve their property dispute…
5.It is the Courts apprehension that these proceedings are having a deleterious impact on the parties’ finances and their co-parenting relationship which could be described as non-existent….
Moreover, in her reasons published 8 August 2024, her Honour lamented that at that stage the court file consisted of 149 filed documents and 31 court orders (at [8]).
From my perspective Her Honour’s observations made then, remain starkly accurate today, some two years from when the wife first commenced proceedings, and now with some 170 documents consuming the court file and 39 orders made.
BACKGROUND
The parties to the proceedings met in 2006, began residing together thereafter that same year, and were married later again that same year.
There are five children of the parties’ relationship:
(a)W born 2008. W has a disability and is non-verbal. He uses an iPad to communicate. He is in receipt of funding pursuant to the National Disability Insurance Scheme (“NDIS”).
(b)V born 2008.
(c)X born 2010. He has a medical condition and attention deficit hyperactivity disorder (“ADHD”).
(d)Y born 2012.
(e)Z born 2012. Z lives with autism. She also receives funding from the NDIS.
The date of the parties’ separation is in dispute as either June 2021 or October/November 2022. It is not however in dispute that the parties physically separated when the wife together with the children vacated the former matrimonial home at Suburb C on 31 December 2022. It is also not in dispute that until time spending between the children and the father commenced in April 2024 pursuant to orders made by Judge Kirton on 21 December 2023 and the father did not spend time with the children following the physical separation of the parties.
A Divorce Order was made in mid-2024.
There is also no dispute between the parties that the mother re-partnered with a Mr O in or around December 2022. It is not clear to the Court when the mother and Mr O separated, however from the submissions of the father during the present hearing, he variously referred to Mr O as the mother’s “ex” partner.
It is also an agreed fact that the father has remained living in the former matrimonial home at Suburb C since separation.
Divorce proceedings were commenced by the wife on 11 December 2022 but ultimately withdrawn.
The current proceedings were commenced by the wife when she filed an Initiating Application on 16 February 2023 seeking both interlocutory and final orders for the adjustment of property and in relation to the parenting arrangements for the children.
The father filed a Response on 8 May 2023 in which he too sought interlocutory and final orders regarding both the adjustment of property and the parenting arrangements of the children.
The first hearing of significance in the proceedings took place before a Senior Judicial Registrar on 16 August 2023 and continued on 23 August 2023, with judgment reserved. Orders ultimately made on 29 August 2023 which provided as follows:
1.The children [V] born […] 2008, [W] born […] 2008, [X] born […] 2010, [Z] born […] 2012 and [Y] born […] 2012 (“the children”) live with the mother.
2.The child [V] spend time with and communicate with the father in accordance with her wishes.
3.The children [W], [X], [Z] and [Y] be at liberty to communicate with the father by telephone or FaceTime in accordance with their wishes.
4.Both parties are restrained and an injunction is hereby granted restraining them from denigrating belittling, abusing, intimidating, harassing and/or criticising the other party and/or members of that party’s family to or in the presence of the children or allowing any other person to do so.
5.The mother is restrained and an injunction is hereby granted restraining the mother from exposing the children to family violence within her household.
6.The father is restrained and an injunction is hereby granted restraining the father from attending at the children’s school, sporting events and/or extra-curricular activities that the children are enrolled in or from allowing any other person to attend on his behalf.
7.The parties do communicate via the parenting application “AppClose” with respect to the care, welfare and development of the children.
8.The mother do keep the father informed of issues in respect of health and educational matters that relate to the children and do notify the father as soon as practicable in the case of a medical emergency.
9.Both parties be at liberty to contact any educational institution, health professional and allied health professional that the children attend upon in order to receive all information regarding the children’s education and health and any other information with which parents are ordinarily able to receive.
10.Forthwith, the father do all things necessary to undertake behavioural change therapy with either [Mr HH] or [Ms JJ] from [KK Services] or [Mr LL] from [FF Service] for no less than six (6) therapy sessions.
11.The father shall obtain a report addressing his progress and participation in the therapy and file and serve a copy of the report within seven (7) days of the report being obtained by him.
12.The father shall provide a copy of the Child Impact Report to the treating therapist engaged from [KK Services] or [Mr LL] from [FF Service].
Dispute Resolution Conference
13.The parties and any lawyers on the record attend a Family Dispute Resolution Conference at the Legal Service Commissions on 5 December 2023 at 9:30am ACDT.
14.In the event the parties are seeking legal aid funding to attend the Conference, they are required to forward a request for an extension of funding to the relevant assignments officer at the Legal Services Commission within forty-eight (48) hours of the date of this Order.
15.Each party exchange proposals for Final Orders at least seven (7) days prior to the Family Dispute Resolution Conference.
16.Within seven (7) days of this Order, the solicitors for the parties each forward to the Legal Services Commission, Family Dispute Resolution Unit with the following documents:
a. a copy of this Order; and
b.the contact details of their client, including current residential/postal address and telephone details.
17.The solicitors for the parties forward to the Legal Services Commission, Family Dispute Resolution Unit, at least (7) seven days prior to the date of the Conference a copy of all documents filed with the Court on behalf of their respective clients.
Future Court Event
18.The matter is adjourned before Judicial Registrar Schirripa in the Evatt List (by Microsoft Teams) on 26 January 2024 at 3:00pm for mention.
19. All extant interim applications are dismissed.
Those orders were the subject of a Review Application filed by the father on 19 September 2023.
The Review Application was heard by Judge Kirton on 8 November 2023, with reasons published and orders made on 21 December 2023.
The orders and notations made by Judge Kirton were as follows:
Father’s Supervised Contact with the Children
1.The children [W], born […] 2008 ([W]), [X], born […] 2010, [Z], born […] 2012 ([Z]), and [Y], born […] 2012, (together, the Children) spend supervised time with the Respondent Father (Father) at a children’s contact service at a location convenient to the parties (Children’s Contact Service), for no less than six (6) supervised visits at such frequency and on such dates and times as can be accommodated by the Children’s Contact Service.
2.The parties forthwith do all things necessary to contact the Children’s Contact Service to ensure their enrolment into the supervised time spending program at the sole cost of the Applicant Mother (Mother) and the Father.
3.Following no less than six (6) supervised visits facilitated by the Children’s Contact Service, the Independent Children’s Lawyer (ICL) do all things necessary to obtain, file and serve under cover of an affidavit, an observational report of the Father’s supervised contact with the Children at the sole cost of the Mother and the Father.
Parents to have Psychiatric Assessments
4.The Mother and the Father each separately attend upon [Dr NN] or such other psychiatrist nominated by the ICL (Psychiatrist) for the purpose of a psychiatric assessment (Parents’ Psychiatric Assessment), with the Parents’ Psychiatric Assessment being at the individual cost of each of the Mother and the Father.
5.The ICL jointly instruct the Psychiatrist by way of a joint letter signed the Mother and the Father, and the ICL shall provide to the Psychiatrist the following:
(a) Copies of all Court documents filed in this proceeding;
(b) Copies of all Court Orders;
(c)Copies of co-located reports prepared by the South Australian Department for Child Protection and the South Australian Police; and
(d)A copy of the Child Impact Report, dated 4 August 2023 and prepared by Court Child Expert [Ms P] (Child Impact Report).
6.Within seven (7) days of receipt of the Parents’ Psychiatric Assessment each party shall file and serve a copy of the Parents’ Psychiatric Assessment under cover of an Affidavit.
Father’s Behavioural Change Therapy
7.Order 10 of the Orders made by Senior Judicial Registrar Heuer on 29 August 2023 (Registrar’s Interim Orders) be varied to read: “Forthwith, the father do all things necessary to undertake behavioural change therapy with a certified behavioural change therapist for no less than six (6) therapy sessions”.
8.Order 12 of the Registrar’s Interim Orders be varied to read: “The father shall provide a copy of the Child Impact Report to the treating therapist engaged by the Father in accordance with Order 7 of these Orders”.
Parents to Undertake a Parenting Course
9.The Mother and the Father each complete the Bringing up Great Kids parenting course conducted through [MM Services] and file and serve an Affidavit annexing their completion certificate upon their receipt of same.
Children’s Health and Wellbeing
10.The Mother shall forthwith do all things necessary to engage each child in psychology therapy through an organisation such as [L Organisation] or the Child and Adolescent Mental Health Service, with the Mother to provide the child’s treating therapist or psychologist with a copy of the Child Impact Report.
11.Within 28 days of the date of these Orders, the Mother shall do all things necessary to file an Affidavit setting out further information with respect to each child’s heath support services as follows, with such information to include:
(a)The National Disability Insurance Scheme plans for the children [Z] and [W];
(b)The identity of each child’s treating allied health support service, including the name of the treating practitioner and appointment requirements for each child;
(c)Letter or reports from each allied health support service regarding the child’s attendance, intervention strategies and progress; and
(d)Any treating psychologist or therapist engaged on behalf of each child as referred to in Order 10 of these Orders.
12.The Application for Review, filed on 19 September 2023 as amended by the Amended Application for Review, filed on 21 September 2023 is otherwise dismissed.
13.The Response to an Application in a Proceeding, filed 2 November 2023 is dismissed.
THE COURT NOTES THAT:
A. The Registrar’s Interim Orders otherwise remains in full force and effect.
B.The Family Dispute Resolution Conference referred to in Orders 13 to 17 of the Registrar’s Interim Orders was vacated pursuant to Orders made on 4 December 2023 by Senior Judicial Registrar Heuer.
C.This matter is on the Court’s Evatt List and is next listed for Mention on 24 January 2024 before Judicial Registrar Schirripa
In the shadow of the Review application the wife filed an Application in a Proceeding on 23 October 2023. In relation to that application:
(a)The application was listed before Judge Dickon on 23 January 2024, pursuant to orders made 14 December 2023.
(b)The father filed a Response on 17 January 2024.
(c)The parties’ competing applications were listed for hearing before Judge Dickson on 7 March 2024 with judgment reserved.
On 27 March 2024 Judge Dickson made the following detailed orders:
THE COURT ORDERS BY CONSENT THAT:
1.The Wife provide within fourteen (14) days to the Husband, a list of her personal items and effects that she maintains are in the property situate at [B Street, Suburb C] in the State of South Australia (‘the [Suburb C] property’) and in the event the Husband is able to locate such personal items and effects and agrees that they belong to the Wife, then together with any further category of items belonging to the children, the Husband shall within fourteen (14) days thereafter provide such items to the Wife via an intermediary to be agreed between the parties in writing.
THE COURT ORDERS THAT:
Property
2.No later than 26 June 2024, the Husband do pay by way of partial property settlement to the Trust Account of Camatta Lempens for and on behalf of the Wife the sum of FIFTY- THOUSAND DOLLARS AND ZERO CENTS ($50,000).
3.In the event that the Husband fails to comply with paragraph 2 herein, the parties do forthwith all such things to place the property situate at [B Street, Suburb C] in the State of South Australia (‘the said [Suburb C] property’) on the market for sale by such selling agent as the parties agree in writing or failing agreement, by such selling agent nominated by the Secretary of the Real Estate Institute of South Australia.
4.The parties do follow all reasonable advice provided by the said selling agent including but not limited to the mode of sale, the reserve price (if any) and any repairs or maintenance required.
5.Upon the sale of the said [Suburb C] property, the proceeds of sale shall be disbursed as follows:
(a) Payment of all sales costs and commissions;
(b) To discharge the mortgage secured over the said [Suburb C] property;
(c)The payment of FIFTY-THOUSAND DOLLARS AND ZERO CENTS ($50,000) to the Wife in accordance with paragraph 2 herein; and
(d)The balance to be held in the Trust Account of Camatta Lempens for and on behalf of the parties pending further order of the Court or agreement between the parties in writing.
6.In the event that either party fails to execute or sign any document necessary to implement the terms of the within orders, then upon proof by affidavit of such refusal or neglect, a Judicial Registrar of this Honourable Court is hereby authorised pursuant to section 106B of the Family Law Act 1975 (Cth) to sign any such documents necessary to give effect to the terms of the within orders.
7.Within twenty-eight (28) days of the date hereof, each of the parties do file and serve an Affidavit of Documents including but not limited to the documents referred to in Rule 6.06(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
8.No later than 1 June 2024, the parties do jointly instruct a licensed real estate valuer to value the property situate at Lots [1 and 2, D Street, Town E] in the State of South Australia (‘the [Town E] blocks’) with the cost of such valuation to be shared equally between the parties.
9.In the event that the parties are unable to agree the identity of the said licensed valuer pursuant to paragraph 8 herein by 1 May 2024, then the Secretary of the Real Estate Institute of Australia shall be requested to nominate such a valuer to undertake the valuation in paragraph 8 herein and the parties shall co-operate with all requests made by the said valuer to facilitate same.
10.The parties and any lawyers on the record shall personally attend a Conciliation Conference with Senior Judicial Registrar Friend on 24 July 2024 at 9:00am, such Conciliation Conference to take place in the Adelaide Registry of the Federal Circuit and Family Court of Australia on a face-to-face basis in accordance with Court protocols.
11.The parties and any lawyers on the record shall follow any directions from the Registrar convening the Conference in relation to attendance in person.
12.Unless they obtain an exemption of such fee in accordance with the Family Law (Fees) Regulations 2012 (Cth), the Wife must pay the Conciliation Conference fee no less than fourteen (14) days prior to the Conference and the Husband do reimburse the Wife with one half of such fee within seven (7) days of being provided with evidence of payment of same.
13. Not later than 17 July 2024, each party must:
(a)Ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) have been exchanged;
(b)Ensure that any private expert report that is relevant to the proceedings has been filed;
(c)Provide to the Court (by email to […@…]) and to the other party a single collated bundle of documents comprising:
(i) A Confidential Outline of Case (Dispute Resolution)
(ii) A detailed minute of Orders Sought;
(iii) Details of any previous or current family violence orders;
(iv)A copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);
(v) Particulars of any financial resource;
(vi)A valuation or market appraisal of any real estate or other asset the value of which is in dispute;
(vii)Statements for, and where applicable, valuations of any superannuation interest; and
(viii)Written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.
14.No later than 5 July 2024, the Husband do all such things necessary to prepare and finalise the financial statements for the Self-Managed [Vaughan] Superannuation Fund (‘SMSF’) for the financial years ending 2019, 2020, 2021, 2022 and 2023.
15.The Husband do meet the costs associated with the preparation of the said SMSF financial statements including the cost of any auditor to be agreed between the parties in writing and with the Wife to pay one half of the said costs by adjustment at final property settlement.
16.The Husband keep the Wife’s solicitors informed of the quantum of costs payable by him arising from the Orders made by the Supreme Court of South Australia in relation to the case of ‘[Vaughan] v [BB Pty Ltd] [2024] SASC […]’ delivered by […] on […] 2024.
Injunctions
17.Without admission, the parties be restrained by way of injunction from approaching or entering or coming within two hundred (200) meters of the home of the other and from encouraging any other person to do so SAVE AND EXCEPT to comply with any order of the Court or agreed between the parties in writing.
Parenting
18.The Independent Children’s Lawyer has leave to provide a copy of the Child Impact Report dated 4 August 2023 to [Dr F], general medical practitioner and any paediatrician or psychologist treating any or all of the said children.
19.The Independent Children’s Lawyer do within fourteen (14) days of the date hereof do all such things to obtain a recommendation from [Dr F] as to the name of a paediatrician to consult with the children [W], [X], [Y] and [Z] (or such of the children as [Dr F] considers in need of paediatric assistance) and do thereafter advise the parties in writing of the paediatrician so nominated.
20.The Independent Children’s Lawyer shall write to the said paediatrician at first instance advising of the terms of these orders and shall provide a copy of such correspondence to each of the parties.
21.To give effect to paragraph 10 of the Orders made 21 December 2023, the Wife do:
(a)Facilitate the said children’s attendance upon the paediatrician nominated by the said [Dr F] and do ensure that the said children attend all such appointments as requested by the said paediatrician;
(b)All such things to ensure that the child [X] do attend [L Organisation] and the children [Y] and [Z] do attend [G Organisation]; and
(c)Enrol the children [W], [X], [Y] and [Z] in the [H] Program at [J Centre] and do ensure that the said children do complete all sessions as directed by [J Centre].
22.The Husband is at liberty to attend upon the said paediatrician for the purpose of providing his input in relation to the said children’s medical needs and obtaining updates as to the said children’s treatment on condition that the Husband shall be solely responsible for his individual appointments.
23.The Husband be restrained and injunctions are hereby granted restraining him from communicating (whether in writing or otherwise) with the said paediatrician or attending upon the offices of the said paediatrician other than to comply with the orders made herein.
24.The Husband be restrained and injunctions are hereby granted restraining him from communicating (whether in writing or otherwise) with the children’s psychologists or attending upon the offices of the said psychologists other than to comply with the orders made herein.
25.This order serves as an authority enabling the said paediatrician to communicate with and obtain information from each of the parties and the Independent Children’s Lawyer at his or her discretion.
26.The Husband is at liberty to obtain information from the said children’s psychologists referred to in paragraph 21(b) herein and this order serves as an authority permitting him to do so provided that the Husband shall be solely responsible for the costs associated with any appointments or communications.
27.The Independent Children’s Lawyer shall obtain, file and serve a Report from each of the children’s treating psychologists prior to the Family Dispute Resolution Conference referred to in paragraph 29 herein.
28.The Wife shall do all such things to ensure that the child [W] has in his possession his iPad (which is used by [W] to communicate) for each period of time spending with the Husband at the Children’s Contact Service and each medical appointment attended by the child [W] and for any appointment with a Family Consultant associated with these proceedings.
29.Upon the said children’s final session with the Husband pursuant to paragraph 1 of the order made on 21 December 2023 and upon the Independent Children’s Lawyer complying with paragraph 3 of the order made on 21 December 2023, the parties and the Independent Children’s Lawyer do attend a Family Dispute Resolution Conference at the Legal Services Commission of South Australia on a date and time to be organised by the Independent Children’s Lawyer for the purposes of discussing future parenting orders for the children.
Procedural
30.No later than fourteen (14) days prior to the adjourned date for hearing, the parties do file and serve an affidavit addressing a proposed Trial Plan including but not limited to:
(a) Any witness to be called on behalf of each party;
(b) A table of assets and liabilities including the value of each item;
(c) Estimated length of Trial;
(d)Any other interlocutory matters that will need to be considered prior to the Trial listing; and
(e)Whether or not section 102NA of the Family Law Act 1975 (Cth) applies.
31.The Wife’s Application in a Proceeding filed 23 October 2023 and the Husband’s Response to an Application in a Proceeding filed 17 January 2024 are hereby dismissed.
32.Proceedings be adjourned to 7 August 2024 at 9:30am for directions and consideration of a Trial listing or transfer of these proceedings to Division 1 of the Federal Circuit and Family Court of Australia, such hearing to take place in open Court on a face-to-face basis in accordance with Court protocols.
On 30 July 2024 the wife filed a further Application in a Proceeding. This is the application presently before the Court. It is apparent that the application was filed because the husband had not complied with Order 2 made 27 March 2024 for the payment to her by the husband of the sum of $50,000, nor had the husband complied with the default mechanism provided for in Orders 3-5 of those same orders for the former matrimonial home to be sold, the wife to receive the $50,000 owing to her pursuant to Order 2, and the proceeds of sale thereafter to be quarantined in the wife’s solicitors trust account pending further order of the Court or agreement between the parties.
In her affidavit in support of the application, also filed 30 July 2024, the wife raised a number of the orders made in the financial proceedings on 27 March 2024 which she asserted the husband had not complied with, those orders included:
(a)Order 7 requiring the husband to file and serve an Affidavit of Documents;
(b)Orders 8-9 relating to the appointment of an expert to value the Town E blocks;
(c)Order 10 for the attendance of the parties at a Conciliation Conference on 24 July 2024;
(d)Order 14 for the preparation and finalisation of the financial statements for the self‑managed superannuation fund known as the “[Vaughan] Superannuation Fund” (“the SMSF”) for the financial years ending 2019-2023, by 5 July 2024.
(e)Order 16 requiring the husband to keep the wife’s solicitors informed of the quantum of costs payable by him from orders made by the Supreme Court in [Vaughan] v [BB Pty Ltd] [2024] SASC […], delivered in early 2024.
The wife’s application was listed for directions before Judge Dickson on 7 August 2024, pursuant to orders made 1 August 2024.
At the hearing on 7 August 2024, it is apparent that the parties agreed a number of orders, which, while not expressed as such, had the effect of varying the obligations created by Orders 3-5 made 27 March 2024. The proceedings were otherwise adjourned to the following day in circumstances where it is apparent that the parties had been attempting to negotiate a resolution of the interlocutory parenting issues. The orders made on 7 August 2024 were:
THE COURT ORDERS BY CONSENT THAT:
1.The Respondent shall do all things to place the property situate at [B Street, Suburb C] in the State of South Australia (the “[Suburb C] property”) on the market for sale as soon as practicable, and in any event, on or before 13 December 2024.
2.The Respondent shall provide to his selling agent a copy of these Orders upon his executing a sole agency agreement with such selling agent.
3.In the event the [Suburb C] property has not sold by 24 January 2025, the sale shall occur by auction to occur on Saturday, […] March 2025, with the reserve price to be set by the selling agent in conjunction with the auctioneer, with the Respondent restrained and an injunction granted restraining the Respondent from providing any instruction to the selling agent as to the reserve price at any amount higher than that recommended by the selling agent and the auctioneer.
4.Upon the sale of the [Suburb C] property, the proceeds of sale shall be distributed as follows:
a) Payment of all sales costs and commissions.
b)To discharge the mortgage and any rates, taxes or charges secured over the [Suburb C] property; and
c) Subject to further order.
THE COURT FURTHER ORDERS THAT:
5.The proceedings are adjourned for directions and/or the making of interim consent orders in respect of parenting issues to 9:00am on 8 August 2024, such hearing to take place in open Court via telephone or Microsoft Teams at the parties' election.
6.Any proposed order to be made by consent at the hearing is to be provided to the Chambers of Judge Dickson by email no later than 8:00am on 8 August 2024 and with such Minute of Order to be signed by each of the parties personally.
At the hearing on 8 August 2024, it is apparent that the parties were unable to resolve the parenting issues, and the proceedings were transferred to the Federal Circuit and Family Court of Australia, Division 1 (“Division 1”).
Following the transfer of the proceedings to Division 1, the proceedings next came before Judicial Registrar Farantouris on 14 August 2024. On that day the parties were able to negotiate further parenting orders which were made by consent. In addition, procedural orders were made to progress the mother’s Application in a Proceeding filed 30 July 2024 to a hearing. The orders made that day were as follows:
THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:
1.Order 1 of 21 December 2023 is varied to permit supervised visits at the [FF] Children’s Contact Service, [Suburb R] to be conducted in accordance with the service’s “on site unsupervised” scheme subject to:
a) the father’s compliance with the prescribed terms of that scheme;
b) the children are not leave the service’s premises; and
c)the father not speaking to the children or any of them about these court proceedings or any issue arising on these proceedings and a restraint by injunction is granted accordingly.
2.Order 6 of 29 August 2023 is varied such that the father may attend the children’s [sports] games provided that:
a) he not approach the mother; and
b) he not approach the coach of the said [sports teams].
3.The mother is injuncted and an injunction is granted restraining the mother from approaching the father during his attendance at any [sports] game in relation to Order 2 above.
4.The mother do keep the father advised through her solicitors of the [sports] fixtures as and when they become available.
IT IS FURTHER ORDERED THAT:
5.The respondent father file a response to an application in a proceeding and affidavit in support by no later than 4:00pm on 1 September 2024.
6.The proceedings are listed for Mention before the Honourable Justice Kari on 9 September 2024 at 9.30am NOTING THAT the Honourable Justice shall give consideration to listing the matter for an Interim Defended Hearing on this day and upon consideration of the father’s responding material referred to in Order 5 herein.
(As per the original)
The father did not comply with Order 5 made for the filing of his responding documents provided by 1 September 2024. Rather, those documents were filed on 2 September 2024. This is the father’s Response before the Court for present purposes.
The proceedings first came before me on 9 September 2024. On that day the following orders were made after a relatively lengthy hearing:
UPON NOTING:
A.The Independent Children's Lawyer has made an enquiry of [Dr NN’s] rooms today and has confirmed that [Dr NN] will complete the psychiatric assessment of the husband in accordance with orders 4, 5 and 6 of the orders made 21 December 2023 despite the fact that he is self-represented.
B.Both parties have failed to comply with orders 4, 5 and 6 of the orders made 21 December 2023 and they each assert that they are without funds to meet the costs of that assessment.
C.The court has asked the parties to consider how the costs of that assessment and report might be paid and be in a position to address the court on the same at the adjourned hearing.
D.The court asks that the parties be in a position to address the court at the adjourned hearing in relation to the timing of when a family report is to be ordered and obtained.
THE COURT ORDERS:
1.The Application in a Proceeding filed by the wife on 30 July 2024 and the Response filed by the husband on 2 September 2024 be listed for Interim hearing on a date to be fixed NOTING THAT paragraphs 2, 3, 4 and 5(a) and (b) have been disposed of by orders made by Judge Dickson on 7 August 2024
2.By consent the respondent shall within sixty (60) days produce to the applicant by way of her solicitors, copies of the following:
a.Complete bank statements from 1 July 2021 to date in relation to the following bank statements disclosed by the respondent in his Financial Statement filed on 7 May 2023:
i. Westpac account […92];
ii. Westpac account […42];
iii. Westpac personal credit card;
iv. Westpac business card;
v. Mortgage account in respect to the [Suburb C] property;
vi.All bank accounts in relation to the [Vaughan] Superannuation Fund; and
vii.Any other bank accounts solely or jointly in the respondent’s name.
b. All statements in respect of the [AA Company] Loan;
c.Life insurance policy documentation in the name of or for the benefit of the applicant and the respondent;
d. Lease agreement, or agreements, in respect to the [Town E] properties;
e.All correspondence and communications from [Ms U], and loan agreements signed by [Ms U], in respect to the “Loans” listed at Item 50 of the respondent’s Financial Statement; and
f.All letters, emails and other documents relating to the respondent’s liability to [BB Pty Ltd] in relation to the matter of [Vaughan] v [BB Pty Ltd] [2024] SASC […], from [mid] 2024 to the present.
3.By consent no later than 4.00pm on 20 September 2024 the husband do provide to the wife financial statements for the self-managed super funds for the financial years ending 30 June 2019 through to 30 June 2024.
4. By consent order 4(c) made 7 August 2024 be varied to provide as follows:
a.“to the trust account of the wife’s solicitors pending further order of the court”.
5.No later than 4.00pm on 4 October 2024 the wife do file and serve any Affidavit directed to parenting proceedings and in particular such Affidavit is to:
a.Be responsive to the Affidavit of the husband filed on the 2 September 2024;
b.Address any other relevant matters pertaining to the parenting proceedings;
c.Set out with particularity the orders made on 21 December 2023, any compliance thereof and any explanation as to non-compliance.
6.No later than 4.00pm on 4 October 2024 the husband do file and serve an Affidavit limited to 5 pages directed to parenting proceedings and in particular such Affidavit is to set out with particularity the orders made on 21 December 2023 any compliance thereof and any explanation as to non-compliance.
7.No later than 7 days prior to the interlocutory hearing referred to in order 1, each of the parties do file and serve a Consolidated Outline of Argument.
Again, in the shadow of all of these events:
(a)On 24 July 2024 at what was scheduled to be the Conciliation Conference ordered by Judge Dickson on 27 March 2024, Senior Judicial Registrar Friend made a costs order payable by the husband to the wife in the amount of $4,348.66. That costs order was made in circumstances where the husband did not attend the ordered Conciliation Conference.
(b)The husband filed a Review Application in respect of this order on 14 August 2024.
(c)That Review Application was heard by Justice Baumann on 18 September 2024. On that day orders were made discharging the costs order made 24 July 2024 and replacing it with a costs order in the amount of $2,500, together with a further costs order in the amount of $2,500 in respect of the review application, both payable by the husband in favour of the wife from the proceeds from the sale of the former matrimonial home.
THE PARTIES’ COMPETING APPLICATIONS BEFORE THE COURT
The orders sought by the wife in her Application in a Proceeding filed 30 July 2024 are as follows:
1. That this application be returnable for the hearing on 7 August 2024.
2.The Respondent shall do all things to place the property situate at [B Street, Suburb C] in the State of South Australia (the "[Suburb C] property") on the market for sale as soon as practicable, and in any event, on or before 13 December 2024.
3.The Respondent shall provide to his selling agent a copy of these Orders upon his executing a sole agency agreement with such selling agent.
4. In the event the [Suburb C] property has not sold by 24 January 2025, the sale shall occur by auction to occur on Saturday […] March 2025, with the reserve price to be set by the selling agent in conjunction with the auctioneer, with the Respondent restrained and an injunction granted restraining the Respondent from providing any instruction to the selling agent as to reserve price at any amount higher that that recommended by the selling agent and the auctioneer.
5.Upon the sale of the [Suburb C] property, the proceeds of sale shall be disbursed as follows:
a. Payment of all sales costs and commissions;
b. To discharge the mortgage secured over the [Suburb C] property;
c.Payment to the Applicant in the amount of FIFTY THOUSAND DOLLARS ($50,000) by way of partial property settlement;
d.Payment to the Respondent in the amount of FIFTY THOUSAND DOLLARS ($50,000) by way of partial property settlement; and
e.The balance to be held in the Trust Account of Camatta Lempens for and on behalf of the parties pending further order of the Court or agreement between the parties in writing.
6.The Respondent shall within SIXTY (60) days produce to the Applicant by way of her solicitors' copies of the following:
a.Complete bank statements from 1 July 2021 to date in relation to the following bank statements disclosed by the Respondent in his Financial Statement filed on 7 May 2023:
i. Westpac account […92];
ii. Westpac account […42];
iii. Westpac personal credit card;
iv. Westpac business credit card;
v. Mortgage account in respect to the [Suburb C] property;
vi.All bank accounts in relation to the [Vaughan] Superannuation Fund; and
vii.Any other bank accounts solely or jointly in the Respondent's name.
b. All statements in respect to the [AA Company] Loan;
c.Life insurance policy documentation in the name of or for the benefit of the Applicant and the Respondent;
d. Lease agreement, or agreements, in respect to the [Town E] properties;
e.All correspondence and communications from [Ms U], and loan agreements signed by [Ms U], in respect to the "Loans" listed at Item 50 of the Respondent's Financial Statement; and
f.All letters, emails and other documents relating to the Respondent's liability to [BB Pty Ltd] in relation to the matter of [Vaughan] v [BB Pty Ltd] [2024] SASC […], from [mid] 2024 to the present.
7.The Applicant shall forthwith do all things to place the property situate at Lots [1 and 2 D Street, Town E] in the State of South Australia (the "[Town E] property") on the market for sale, with the Applicant to be the sole trustee for sale and authorised by these Orders to sign all documents on behalf of the parties to effect such sale, with a copy of these orders evidencing such entitlement on the part of the Applicant.
8.The Applicant shall provide to the selling agent and conveyancer instructed by her in relation to the sale of the [Town E] property a copy of these Orders.
9.The Applicant shall follow all reasonable advice provided by the selling agent engaged by her in respect to the [Town E] property including but not limited to the presentation of the property for sale, the mode of sale and the reserve price (if any).
10.The Respondent shall, insofar as is necessary, execute all documents necessary to facilitate the sale of the [Town E] property.
11.The Respondent is injuncted, and an injunction hereby granted restraining the Respondent, from:
a. Physically attending upon the [Town E] property;
b.Contacting the selling agent engaged by the Applicant for the purposes of the sale of the [Town E] property;
c.Contacting any person (other than a member of the Respondent's family) who has expressed any interest in the purchase of the [Town E] property; and
d.Taking any action to attempt to delay or frustrate the sale of the [Town E] property.
12.Upon the sale of the [Town E] property, the proceeds of sale shall be disbursed as follows:
a. Payment of all sales costs and commissions;
b.To discharge any mortgage or any other charges secured or registered over the [Town E] property;
c.Payment to the Applicant in the amount of FIFTY THOUSAND DOLLARS ($50,000) by way of partial property settlement;
d.The balance to be held in the Trust Account of Camatta Lempens for and on behalf of the parties pending further order of the Court or agreement between the parties in writing.
13.Forthwith after the sale of the [Town E] property, the Applicant shall engage such accountant necessary to:
a.Cause such accounts, taxation returns, ASIC documentation and the like to be prepared in order for the [Vaughan] Superannuation Fund (the "SMSF") to be brought into compliance with all requirements of the Australian Taxation Office and ASIC, as applicable;
b.Cause to be provided to the Applicant and the Respondent a copy of all such accounts of the SMSF, including, but not limited to, financial statements for the years 2019, 2020, 2021, 2022, 2023 and 2024;
c.Advise the Applicant and Respondent in writing upon the amount of net proceeds of sale of the [Town E] property required to be deposited into the bank account of the SMSF; and
d. Advise in writing the Applicant and the Respondent the quantum of any Capital Gains Tax liability accruing to each of them and to the SMSF as a result of the sale of the [Town E] property.
14.The Respondent shall provide such documents to the accountants engaged by the Applicant pursuant to paragraph 12 as requested by them within FOURTEEN (14) days of any such request made to the Respondent in writing, and shall execute all documents required of him by such accountants in respect to the matters specified in paragraph 13(a).
15.Notwithstanding paragraph 11(d), the Applicant is authorised to pay from the funds held in the trust account of Camatta Lempens:
a.The amount as advised by the accountants pursuant to paragraph 12(c), into the bank account of the SMSF;
b.All accounts for fees rendered by the accountants engaged by her pursuant to paragraph 12; and
c. Such amount as is necessary to pay in full the amounts due to [BB Pty Ltd], in relation to the matter [Vaughan] v [BB Pty Ltd] [2024] SASC […], with any such payment to be by way of partial property settlement to the Respondent.
16.In the event that the Respondent fails or neglects to sign any document or do anything necessary to give effect to the terms of these Orders the pursuant to Section 106A of the Family Law Act a Registrar of the Federal Circuit and Family Court of Australia is hereby empowered to sign such document or do such thing in the name of the Respondent as may be necessary to give effect to this Order.
17.The children [W], born […] 2008 ([W]), [X], born […] 2010, [Z], born […] 2012 ([Z]), and [Y], born […] 2012, (together, the Children) spend supervised time with the Respondent as follows:
a. Each alternate Saturday, from 10.00am until 2.00pm;
b.Such time spending to occur at the children's contact centre, with the Respondent to pay the costs, if any, of such supervision.
18.That the Respondent pay to the Applicant her costs of this application, as agreed or taxed.
19. Such further or other orders as the Court thinks fit.
(As per the original)
The wife however asserts that the following orders have been dealt with, and accordingly were not further pressed at the hearing:
(a)Paragraphs 2-4 are no longer pressed as they have been resolved and superseded by Orders 1-3 made by consent on 7 August 2024 for the sale of the Suburb C property in a manner different to that ordered by Judge Dickson on 27 March 2024.
(b)Paragraph 6 is no longer pressed as it was resolved by orders for discovery made 9 September 2024 (Order 2); albeit that the wife complains that the husband has not complied with that order.
(c)Paragraph 17 was not pressed in its present form, with the wife alternatively proposing that the children spend supervised time with the father each alternate Saturday between 1.00 pm and 3.00 pm with such time to be supervised by a person of the mother’s choosing.
The orders sought by the husband in his Response filed 2 September 2024 are as follows:
1. Order 6 of 29 August 2023 be discharged.
2.Forthwith the mother do all things necessary to undertake behavioural change therapy with a certified behavioral [sic] change therapist for no less than six (6) therapy sessions.
3.The mother shall obtain a report addressing her progress and participation in the therapy and file and serve a copy of the report within seven (7) days of the report being provided by her
4.The mother shall provided [sic] a copy of both the applicant and respondent's last affidavit and the relevant Court order injuncting her from committing family violence, to the relevant treating therapist
5. [W], [X] ,[Y] and [Z] are to spend equal time with each parent.
6.Handover where necessary is to occur at the Child Contract Centre [Suburb R] or in the alternative at the [Suburb R] Police station.
7.The mother is injuncted and an injunction is granting restraining the mother from approaching the father.
8.The father is injuncted and an injunction is granting restraining the father from approaching the mother.
9.The father is to be responsible for [X], [Y] and [Z’s] medical needs including counselling and the mother is to do all things necessary to facilitate them.
10. The father is at liberty to provide any of the children's medical consultants with documentation on this file
11. The father is to be responsible for [X’s] sporting commitments and the mother is to do all things necessary to facilitate them
12. The mother is to organize [Y] and [Z’s] sporting commitments and the father is to do all things necessary to facilitate them.
13. Order 4 c) dated 7 August 2024 be varied as follows:
a) Payment of the outstanding [AA Company] Loan
b) Payment of all monies lent by [Ms U] for the purpose of renovating [B Street, Suburb C] SA […]
c) The balance of the proceeds to be shared equally between the Applicant and the Respondent by way of partial property settlement.
14. The Applicant’s sough order 6a) be varied to apply from 9 March 2024.
15.The Applicant provide copies of the audited [Vaughan] Self Managed Superannuation fund statements for the Financial years 2019 to 2023 within 30 days after the hearing date.
(As per the original)
As discussed earlier in these reasons, the parties’ competing interlocutory financial applications will not be determined by these reasons and the making of orders this day. Instead, reasons shall continue to be reserved in relation to the interlocutory financial proceedings pending the determination of the wife’s Application in a Proceeding filed 28 February 2025.
DOCUMENTS BEFORE THE COURT
The wife relied on the following documents:
(a)Her Application in a Proceeding filed 30 July 2024 together with the affidavit filed the same day in support of the same.
(b)Her affidavit filed 4 October 2024 in accordance with Order 5 made 9 September 2024;
(c)The written submissions 21 November 2024 filed in accordance with Order 7 made 9 September 2024.
(d)Her Costs Notice filed 27 November 2024 in accordance with r 12.06.
The husband sought to rely on a number of documents referred to in his Amended Outline of Case filed 22 November 2024 at 4.20 pm. The Court, however, ruled during the hearing that the husband would not be permitted to rely on material earlier filed in the proceedings in circumstances where the same did not comply with r 5.08 which limits the number of affidavits (and length of such affidavits) to be relied upon by parties at the hearing of an interlocutory application. Accordingly, the following documents were relied upon by the husband:
(a)His Response filed 2 September 2024 together with the affidavit filed the same day in support of the same.
(b)His affidavit filed 11 November 2024.
(c)His Amended Outline of Case filed 22 November 2024.
(d)His Written Submissions filed 22 November 2024.
With reference to the orders made 9 September 2024, it is apparent that the wife has complied with the orders for filing documents for the present hearing. Conversely, the husband has not done so within the specified time limit provided in those orders (which vary the obligation created by r 2.18(2) to file any Response within 28 days of service).
Whilst no objection was taken by the wife, given the matters discussed throughout these reasons and raised with the parties and particularly the husband at the commencement of the hearing, the husband’s (and indeed the wife’s) attention is drawn to r 1.33 and r 1.34 which provides:
1.33 Failure to comply with specified time limit
If a step is taken after the time specified for taking the step by these Rules, The Family Law Regulations or a procedural order, the step is of no effect.
1.34 Application to allow for a step after specified time limit
(1) A party may apply for relief from the effect of rule 1.33.
(2)In determining an application under subrule (1), the court may consider the following:
(a) whether there is a good reason for the non‑compliance;
(b) the extent to which the party has complied with orders, legislative provisions and pre‑action procedures;
(c) whether the non‑compliance was caused by the party or the party’s lawyer;
(d) the impact of the non‑compliance on the management of the proceeding;
(e) the effect of the non‑compliance on each other party;
(f) costs;
(g) whether the party should be stayed from taking any further steps in the proceeding until the costs are paid;
(h) whether all parties consent to the step being taken after the specified time.
Note: This subrule does not limit the powers of the court
Both parties, and particularly the husband, given his lack of compliance with the procedural orders made 9 September 2024, should henceforth consider that they are on notice that future non-compliance with procedural orders (or time limits imposed by the Rules, or the Regulations as referred to in r 1.33) shall not be met with such leniency from the Court without an application made pursuant to r 1.34.
In addition to the documents earlier identified, during the course of the hearing and as a result of submissions and/or rulings during the hearing, the following documents were also before the Court for the purposes of the parties’ competing interlocutory applications:
(a)The following exhibits:
(i)Affidavit of the Father affirmed 28 November 2024 (Exhibit “F1 for hearing 28/11/2024”);
(ii)Extract from Thomson Reuters (Exhibit “F2 for hearing 28/11/2024”);
(iii)Copy of Certificate of Title for Town E properties (Exhibit “M1 for hearing 28/11/2024”);
(iv)Bundle of Self-Managed Superannuation Fund documents prepared by Husband (Exhibit “M2 for hearing 28/11/2024”);
(v)Copy of Eccheli & Eccheli [2024] FedCFamC1F 234 together with Thomsons online extracts (Exhibit “F3 for hearing 28/11/2024”).
(b)An earlier affidavit of the husband filed 12 November 2023.
(c)The Child Impact Report dated 4 August 2023.
(d)Reasons for Decision of Magistrate Basheer dated early 2023 and annexed to the father’s affidavit filed 2 August 2023 at pages 56 – 62.
(e)The affidavit of the ICL annexing the observational reports from the Suburb R CCS filed 27 August 2024.
The Court additionally received the written submissions and costs notice of the ICL, both filed 27 November 2024.
THE HEARING ON 28 NOVEMBER 2024
The hearing on 28 November 2024 was conducted in two halves. The first half of the hearing dealt with the parenting applications and involved the ICL. The second half of the hearing concerned the financial applications and the ICL did not participate.
During the hearing, and in addition to the matters raised by the ICL in the written submissions filed 27 November 2024, the ICL promoted orders as follows:
(a)A continuation of supervised time spending in accordance with Order 1 made 14 August 2024 until further order.
(b)The urgent preparation of a Family Report by a Court Child Expert, with the same not to await compliance with Orders 4-6 made 21 December 2023 for the parties to undertake a psychiatric assessment.
(c)The progression of the matter to trial as soon as possible.
The mother supported the preparation of a Family Report and progression to trial as proposed by the ICL.
The father’s position was a little more difficult to discern. This appears to be because the father has an aversion to the expert report process as it appears he considers that the Child Impact Report earlier prepared in the proceedings on 4 August 2023 was “fundamentally flawed”; a submission he made repeatedly throughout the hearing.
In light of the father’s view in this regard, the position of the father now appears to be that he will not engage in any appointments with any expert in the parenting proceedings (as to both any psychiatrist in compliance with the orders earlier made, or any Court Child Expert), if he is not able to either record his appointments with any such expert, or in the alternative that he have a person present with him at any such appointments to act as a scribe.
The mother and the ICL opposed either of those arrangements proposed by the father. Accordingly, that issue will also be determined in the discussion that follows.
The father otherwise promoted orders for the children to spend equal time with each parent. He did not otherwise specifically address the parenting orders set out in his Response filed 2 September 2024.
During the course of submissions in the parenting proceedings, it became unclear to the Court exactly what time spending arrangements were occurring, and whether the Suburb R Children’s Contact Service (“the Suburb R CCS”) was prepared to continue to facilitate ongoing time spending between the children and the father.
Over the shortened luncheon adjournment, the Court directed Counsel for the ICL to make enquiries with the Suburb R CCS. When the hearing resumed after lunch, the Court was informed by Counsel for the ICL of those enquiries which included, of significance, the following:
(a)Time spending to date has occurred in the supervised setting of the Suburb R CCS, with two separate arrangements for six visits, resulting in a total of 12 visits taking place each alternate weekend.
(b)The orders made at the mutual request of the parties on 14 August 2024 for time spending to take place in the “on site unsupervised” service had not been implemented at the husband’s request, as he wished to continue time spending in a supervised environment.
(c)The Suburb R CCS was not prepared to facilitate further supervised time spending, but was prepared, subject to enrolment by the parties, to facilitate the time spending anticipated and agreed between the parties pursuant to Order 1 made 14 August 2024 in the onsite, unsupervised setting.
After hearing this information, and when it became apparent to the Court that judgment would be reserved, the Court enquired of the parties as to the parenting orders to be made during the period of the adjournment and pending the delivery of judgment. Ultimately, to the parties’ mutual credit, they were able to agree a regime of time spending as anticipated by orders made on 14 August 2024. Accordingly, the following orders were made by consent in that regard at the conclusion of the parenting submissions:
1. Order 1 made 21 December 2023 be discharged.
2.During the period of the adjournment of the children [V], born […] 2008, [W], born […] 2008, [X], born […] 2010, [Z], born […] 2012 and [Y], born […] 2012 spend supervised time with the father at the [FF] Children’s Contact Service, [Suburb R] to be conducted in accordance with the services “on site unsupervised scheme”:
a. The father’s compliance with the prescribed terms of that scheme;
b. The children are not to leave the service’s premises;
c.The father not speaking to the children or any of them about these court proceedings or any issue arising in these proceedings during such time spending and a restraint by injunction restraining the father from doing so.
d.That each the mother and the father be restrained and an injunction is granted restraining each of the parents from discussing these proceedings with the children or any issue arising from these proceedings with the children or in their presence or permitting any other person to so do.
3.The time spending provided for in Order 2 shall take place on dates and time as can be accommodated by the service on the basis:
a. Such time occur each alternate weekend; and
b. Such time not exceed a period of two hours on each occasion.
After making those orders the ICL was excused and the Court heard submissions in relation to the financial proceedings.
At the conclusion of those submissions judgment was reserved.
The Court however raised with the parties whether or not in light of paragraph 13 of the wife’s Application in a Proceeding, and the submissions made by the husband that he intended to lodge the financial statements and returns for the SMSF shortly, whether an injunction ought be made restraining the husband from doing so pending delivery of judgment.
Whilst the wife pressed the making of such an injunction and the husband opposed the same, the Court ultimately declined to make that order.
In addition, the Court however of its own volition at the conclusion of the hearing made orders restraining each of the parties from unilaterally communicating with chambers in the following terms:
5. The parties be restrained and an injunction is granted restraining each of the parties communicating with chambers without the written consent of all parties.
This order was made as the Court has been inundated with unsolicited, unilateral communications by email, particularly from the father.
LEGAL PRINCIPLES
Parenting
I identify from the outset that the relevant legal principles applicable to the parenting aspect of these proceedings have changed since the last interlocutory parenting determination on 27 March 2024.
Whilst the parenting provisions are still found in Part VII of the Family Law Act 1975 (Cth) (“the Act”), there have been significant changes which came into force on 6 May 2024.
The objects underpinning the parenting provisions in the Act are now identified in s 60B as ones that “ensure that the best interests of children are met, including by ensuring their safety; and to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989”.
To that end, at all times when the Court is considering making any particular parenting order, the Court must make parenting orders which “regard the best interest of the child as the paramount consideration” (s 60CA).
A parenting order is defined in s 64B of the Act as one which includes:
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for the child;
(d)if 2 or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that parental responsibility;
(e)the communication a child is to have with another person or persons;
(f)maintenance of a child;
(g)the steps to be taken before an application is made to court for a variation of the order…;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
In determining what is in a child’s best interest, the Court is to have regard to six separate factors identified in s 60CC(2) of the Act under the heading “General Considerations” as follows:
(a)what arrangements would promote the safety (including 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.
In addition, and when considering arrangements that would promote the safety of the child and each person who has the care of the child (whether or not that person has parental responsibility for the child), the Court must consider the following matters (s 60CC(2A)):
(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.
The assessment of risk underpins the Court’s assessment of the child’s safety, and to that end in Deiter & Deiter [2011] FamCAFC 82 at [61] (“Deiter”), the Full Court of the Family Court (as it then was) identified:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events…
As these are interlocutory parenting proceedings, the comments of the Full Court of the Family Court in Goode & Goode (2006) FLC 93-286 at [68] are relevant:
…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible…
DISCUSSION
Parenting
It is somewhat perplexing that the father seeks varied and/or new parenting orders in circumstances where at the time of the hearing he had not complied with a number of the parenting orders that were made in these proceedings. Of importance for present purposes, the father’s time spending has not moved to the on-site unsupervised scheme at the Suburb R CCS (Order 1 made 14 August 2024), which is an arrangement the parties mutually invited the Court to order, and which the father has refused to comply with.
In addition, neither of the parents have complied with the orders made 21 December 2023 at the review hearing to attend upon Dr NN for the purposes of undertaking a psychiatric assessment (Orders 4-6).
In light of the same, it is difficult to discern, aside from the father’s miscellany of generalised complaints (discussed later in these reasons), exactly why it is that the father now says the Court ought revisit the orders he, together with the mother and the ICL, invited the Court to make on 14 August 2024.
Importantly, it does not appear that there has been any change that would warrant the Court revisiting the arrangements ordered on 14 August 2024 and only implemented by further orders made by consent at the conclusion of the interlocutory hearing on 28 November 2024; particularly in circumstances where the Suburb R CCS is not prepared to continue to facilitate ongoing supervised time spending.
Moreover, in circumstances where the parents themselves invited the Court to make orders providing for the father to spend time with the children at the “on-site unsupervised” service (Order 1), the Court must infer that at least at that time (14 August 2024) both of the parents, and the ICL considered these orders for time spending to be an appropriate progression of the children’s time with the father, and importantly, with reference to the legislative regime, it was an arrangement that was considered to be safe and in the children’s best interests; otherwise the parties would not have asked the Court to make orders in those terms.
Importantly, the Court having given its imprimatur to those proposed parenting arrangements, it can also be said that the Court was actually satisfied that the time spending orders made on 14 August 2024 were ones that ensured the children’s safety and were in their best interests.
Having heard the lengthy submissions of the father during the hearing, and whilst by no means a concluded view on my part, it would appear that the father has an overt mistrust with regard to not only the mother, but also every aspect of these proceedings. Examples from the father’s oral submissions which lead me to apprehend the father’s mistrust include:
(a)The father’s position with respect to any expert appointments in these proceedings as discussed later in these reasons;
(b)The father’s submissions that he is concerned about the conduct of the Court and whether he would get a fair hearing, without articulating any foundation as to why it is that he holds these concerns, all said whilst in the next breath actively eschewing any application that might be bought regarding these non-descript complaints of bias, and then later in the hearing thanking the Court for the opportunity to address the Court (about the Child Impact Report) with an “open mind”;
(c)Asserting that the review decision was “illogical” and an attack on his “right of natural justice” and “due process”, again without articulating why he asserts this to be the case, and in the absence of having sought appellate review of that decision; and
(d)Asking rhetorical questions of the Court including “does this shock you? I am shocked”;
(e)Making submissions that the Child Impact Report was “fundamentally flawed”, again without any articulation as to why it is he asserts the same beyond a complaint that the “family court is fundamentally biased” with the Court allegedly without question accepting allegations of family violence which are made by a female simply because they are made by a female.
While it is apparent that the father wishes to progress his time spending with the children more rapidly, I do not consider that to be a step that is in the children’s best interests at this interlocutory stage, not only for the reasons just articulated, but additionally because of the reasons that follow.
I accept that the Court is not bound to follow the recommendations of the Court Child Expert (per Hall & Hall (1979) FLC 90-713 at 78,819). This principle is applicable both at any interlocutory stage, but also in any final hearing. At this juncture however, and given the interlocutory nature of the proceedings and the inability to make findings without the evidence of the parties and any expert being tested (as would occur at a final hearing), and in the absence of tangible evidence supporting the Court adopting a different approach, the Court shall continue to afford the opinions of the Court Child Expert some significant weight, and err on the side of caution with respect to the parenting arrangements for these children, as has been the case to date by each judicial officer that has grappled with the complex dynamic of this family.
It is not lost on the Court that there are five children of the relationship and that three of the children have varying but seemingly high needs; in particular the child W, who has a disability and is non-verbal.
Orders were made by the Senior Judicial Registrar on 29 August 2024 that the child V shall spend time and communicate with the father in accordance with her wishes (Order 2). This order remains undisturbed. More importantly, the Court understands from the evidence before it in these interlocutory proceedings that V is currently living independent of the parties. Moreover, the father at this juncture does not seek any different time spending orders in relation to V than those made 29 August 2024.
The Child Impact Report dated 4 August 2023 makes for troubling reading, if what the Court Child Expert has recorded is accurate. In particular:
(a)The parties’ mutual admissions of their use of arguments, derogatory language and verbal abuse towards each other (at paragraphs 62 and 64).
(b)The father’s admission of having been physical with the child X, reporting that X “had copped it” out of the father’s frustration and that he had “lost my temper”, “pushed him ([X]) on the wall” and “kicked him up the bum” (at paragraph 65).
(c)The father’s admissions that he became angry in the presence of the children at being served with proceedings, including that he had lost his temper with Y and engaged in a “shouting match” with her, resulting in Y being taken by him to a friend’s home (at paragraph 13).
(d)The father’s admissions that he had an altercation with the mother’s then partner, Mr O, at the children’s sport resulting in an Intervention Order being made. This incident again occurring in the presence of at least some of the children with the father identifying that the incident would have been traumatic for the children, and with one of the children (presumably Z when regard is had to Z’s disclosures at paragraph 48) collapsing on the sportsground and having to be carried off after witnessing the altercation (at paragraph 14).
(e)The father’s admissions that he did not have a relationship with V (at paragraph 16).
(f)The father’s disparaging assertions that some of the children were “lazy” and “liars”, in particular V (at paragraph 16) and X (at paragraph 18), which were echoed by V’s distressed disclosures to the Court Child Expert that the father has told her that she is “lazy and fat” (at paragraph 39).
(g)The exposure of the children to the father’s aggression, with:
(i)The child Y’s reporting that the father’s “temper was ridiculous” (at paragraph 27).
(ii)The child Y’s reporting of the conflict between the father and V, and in particular the father’s comments to V that she should “fuck off, don’t come back you’re not [my] daughter” (at paragraph 29).
(iii)The child Y’s self-report that she needed “space” to recover from her experiences” with the father (at paragraph 30).
(iv)The child X articulating that the father can be “mean sometimes and aggressive” (at paragraph 56).
(h)The exposure of the children to conflict, and in particular:
(i)Conflict and arguments between the parents as disclosed by Y (at paragraphs 28 and 29), by V (at paragraphs 36 and 40), and by X (at paragraph 57); and
(ii)Conflict between the mother and her then partner Mr O as disclosed by Y (at paragraphs 25 and 30) and by V (at paragraph 37).
(i)The father’s inability to identify that the child Z had been diagnosed with autism (at paragraph 20).
(j)The mother’s failure to have the non-verbal child, W, attend the appointments with the Court Child Expert with his mode of communication, namely his iPad (at paragraph 31).
(k)The child V’s distress during her appointments with the Court Child Expert, variously crying and sobbing, which left the impression that she was an emotionally burdened adolescent (at paragraph 33).
(l)The child V’s difficulty in coping with the mother’s presentation, which she described as “stressed and tired” and that she spends time in her bedroom mostly “fighting or crying” (at paragraph 36).
(m)The seeming parentification of V (as disclosed by V at paragraph 40), with her being responsible for an array of household tasks, including cooking (as disclosed by Y at paragraph 26 and Z at paragraph 44) and child minding (as disclosed by V at paragraphs 37 and 38).
(n)The children’s awareness of the parental conflict, with:
(i)The child Z articulating “mum said they hate each other” (at paragraph 49); and
(ii)The child X having an awareness that the mother pays the children’s school expenses (at paragraph 54).
Moreover, having considered the information conveyed by the parents and the children, the Court Child Expert formed the view that the risks factors present for these children included:
(a)Family Violence, coloured by arguments, verbal abuse and derogatory taunts between the parents, together the mother’s allegations of financial abuse, and the father’s admissions of physical abuse directed towards X (at paragraphs 59-66).
(b)The possibility that each of the parents have undiagnosed and/or untreated mental health difficulties (at paragraph 67-68).
(c)The mother’s concerns about the father’s parenting capacity, physical abuse and risk of emotional abuse (at paragraph 69).
(d)The father’s concerns that the mother was exposing the children to family violence in her new relationship, together with alleged emotional abuse (at paragraph 70).
When all of these concerns are read together with the Court Child Expert’s evaluation under the heading “Child Impact Analysis”, the safety concerns for the children are brought into stark focus, particularly in light of the Court Child Expert’s opinion that:
72.There is no doubt [V], [W], [X], [Y] and [Z] have been exposed to family violence, high conflict and parenting that has impacted their emotional and physical wellbeing. Their interviews would suggest they have experienced events, which have impacted their emotional and psychological wellbeing. All five children exhibit emotional issues, developmental issues and disabilities; they have higher needs and greater vulnerabilities compared to other children of a similar age. Whilst there are developmental concerns that may explain some of their behaviours and/or emotional states, this assessment identified there is concern regarding the potential abuse and/or neglect the children may be experiencing, along with the impact of the parties dispute. The children are aware of the parents dislike for each other having lived together for years while they were separated and endured this fractured relationship. This conflict within the co parenting relationship and the children’s experiences in their parents care has already created a loyalty divide, which will impact their understanding of relationships in the future.
…
78.This is a large and complex sibling group with multiple disabilities and psychological concerns that make them vulnerable to their parents caregiving and decisionmaking in the future. The CCE is concerned the children continue to be exposed to conflict, family violence and multiple caregiving arrangements even after separation and this will impact their ability to recover from their experiences. Should the children be experiencing abuse and or neglect, this may impact their ability to trust their caregivers will be a safe and constant person with whom they can seek support and make sense of their experiences.
(As per the original)
In light of all of these matters, it is unsurprising that at an interlocutory stage, the safety of the children has been at the forefront of the Court’s considerations (see for example paragraphs 53-75 of the reasons of Judge Kirton on 21 December 2023).
As recently identified by the Full Court in Fiedler & Vitale [2025] FedCFamC1A 7:
54.… whilst we agree with the submission that no one consideration prescribed by s 60CC(2) is determinative of a child’s best interests, it is difficult to fathom a circumstance in which s 60CC(2)(a) would not be given prominence in the line of reasoning, if the Court was of the view that a child was not safe and/or where the child was at risk of some form of harm...
Unfortunately, the safety concerns identified in the Child Impact Report were not disabused by the father during the hearing in his oral submissions. Rather, the father made concerning admissions about his conduct during the course of his submissions, which confirmed the veracity of the information the Court Child Expert had recorded in her report, including:
(a)An admission that he had started the argument with the child’s carer which turned into a “heated row” in the presence of the children when she had delivered documents to the father.
(b)An admission that he has a “temper”.
(c)An admission that he had a “full on verbal argument” with the child Y following the altercation with the carer.
(d)An admission that he had given X a “little kick, I admit it, corporal punishment is not illegal”.
Having considered various safety factors pertaining to this family unit, I now turn to consider those relevant factors pursuant to s 60CC.
So far as any expressed views of the children (s 60CC(2)(b)), and whilst acknowledging that they were expressed some time ago:
(a)The child V has expressly indicated that she does not want to spend time with the father (at paragraph 41 of the Child Impact Report);
(b)The child Z “could not see herself spending time with the father” (at paragraph 50 of the Child Impact Report); and
(c)The child X has indicated that it would be “ok” to spend time with the father and that “it could be fun sometimes” (at paragraph 58 of the Child Impact Report).
In more recent times, the best evidence the Court has of the children’s views is that conveyed to the father following the resumption of the children’s time spending with him pursuant to the orders for supervised time spending made 21 December 2023. From the reports from those supervised visits, it appears that at various times during the children’s time spending with the father at the CCS, the children have variously discussed with the father additional time spending, including the father attending to watch X’s sports games, holidays, seeing the father on weekends and a 50/50 time spending arrangement between both parents. It remains to be seen whether the children express those same views in a more neutral setting.
In relation to the developmental, psychological, emotional and cultural needs of the children (s 60CC(2)(c)):
(a)As earlier indicated, these children have disparate and varying levels of needs.
(b)Whilst W, X and Z have diagnosed conditions, it is apparent from the Child Impact Report that all of the children in their own different ways appear to have significant emotional and psychological needs arising from that which they have witnessed and experienced, including but not limited to witnessing an array of family violence as and between their parents, as and between the mother and her former partner, and having been on the receiving end of it themselves.
In relation to 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 (s 60CC(2)(d)):
(a)It is of some concern that the mother facilitated the child W attending the appointments with the Court Child Expert without his iPad, and that this lack of respect for his needs has extended into W’s time spending with the father; with the mother repeatedly failing to provide the iPad to W during his supervised time spending with the father (per the notes from the Suburb R CCS W did not have it on at least the visits on each 27 April 2024 and 22 June 2024, and possibly not on 13 April 2024). During the hearing the ICL also made submissions that the Suburb R CCS raised a concern that W had not attended with his iPad for 10 of the 12 visits, although not expressly stated in the reports.
(b)It is apparent from the reports from the father’s supervised time spending, that at least in that environment, the father appears to be able to meet the children’s basic needs, including appropriate supervision of them, provision of food, generally managing the children’s behaviour and engaging with the children in what appears to be age-appropriate play and conversation.
(c)It is of some concern that the father appears willing to engage in dialogue with the children about the mother; albeit that on occasions it appears to be in response to the children raising issues with the father they appeared to be aware of from the mother (for example at the visit on 8 June 2024, X raised with the father the mother’s “claim” that the father “owed her money and needed to repay it”).
(d)Of most concern however is that various orders for the children to receive support have been frustrated by the father, as identified by Judge Dickson in her reasons on 27 March 2023 (at [96]-[110]). During the hearing and in response to these criticisms, the father attempted to justify his communication to Dr CC by describing him as an “alpha male” whom he had clashed with. The father’s inability to prioritise the children’s needs, and his lack of insight in this regard is of concern to the Court.
Anything else that is relevant to the particular circumstances of the children (s 60CC(2)(f)):
(a)In light of the orders that have been made at the father’s request for the sale of the former matrimonial home, it is of some concern to the Court that the father has placed no evidence to the Court as to the living arrangements that he proposes for the children if they were to spend time with him away from the Children’s Contact Service.
(b)The father has completed the eight week “Circle of Security Parenting” course in late 2023, with the mother also asserting that she has completed the same.
(c)The mother also asserts that she has complied with various obligations created by the parenting orders made on 21 December 2023, including:
(i)Her enrolment in the “Bringing Up Great Kids” course, which was scheduled to commence in late 2024.
(ii)Taking the children W, X, Z and Y to an appointment at L Organisation on 19 August 2024 (in accordance with order 10 made 21 December 2023), with the children Z and Y placed on the waitlist for follow up appointments.
Having considered all of these matters together, it is my considered view that the children’s safety and best interests are presently best served by a continuation of the children’s time spending with the father at the on-site unsupervised time spending facility at the CCS, which is a less stringent supervised time spending environment.
Having said that, in light of the risks and concerns raised in relation to both parents, it is important to highlight that this is not a fixed and final view of the Court. Rather those risks and concerns are ones that are best considered and evaluated at any final hearing to arrive at an outcome the Court considers is one that ensures the children’s safety and that their best interests are met.
Whilst concerns remain about both parents, and the risks that they pose to the children, the Court considers that in order to properly and fully assess those risks and progress the proceedings to a final hearing, where all of the evidence is able to be tested, it essential that the Court has the benefit of expert evidence addressing:
(a)A psychiatric assessment of each of the parents, as first ordered on 16 August 2023; and
(b)A family assessment report.
Turning to the dispute that presently exists in relation to each the preparation of the psychiatric assessment of each of the parents and the family assessment.
It is the father’s position that he refuses to attend upon any expert in these proceedings (psychiatrist or family report writer), unless he is either able to record those appointments and/or he is able to take notes either himself personally or through a witness who attends as a scribe.
The basis for the father’s position in essence is that he does not trust any expert to accurately record his interactions with them. The father has come to this view as he has formed the belief that the Court Child Expert who prepared the Child Impact Report dated 4 August 2023 is biased against him.
Leaving aside that it is difficult to discern the foundation of the father’s mistrust, the father’s position can be dealt with relatively succinctly by highlighting the obligations of any qualified expert engaged in these proceedings.
Firstly, any expert that is engaged will have a range of professional obligations. In the event that the Court and/or the parties consider that an expert appears to have failed to comply with their professional obligations, then the expert can be referred by the Court and/or the parties themselves to the relevant professional regulatory body.
More importantly however in the context of proceedings under the Act, Chapter 7 of the Rules sets out the relevant rules that apply to experts giving evidence in proceedings before the Court.
Division 7.1.5 of the Rules expressly details any expert witness’ duties and obligations. Significantly, r 7.18 provides:
7.18 Expert witness’s duty to the court
(1) An expert witness has a duty to assist the court with matters that are within the expert witness’s knowledge and capability.
(2) The expert witness’s duty to the court prevails over the obligation of the expert witness to the person instructing, or paying the fees and expenses of, the expert witness.
(3) The expert witness has the following duties:
(a) to give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability;
(b) to conduct the expert witness’s functions in a timely way;
(c)to avoid acting on an instruction or request to withhold or avoid agreement when attending a conference of experts;
(d) to consider all material facts, including those that may detract from the expert witness’s opinion;
(e) to tell the court:
(i) if a particular question or issue falls outside the expert witness’s expertise; and
(ii)if the expert witness believes that the report prepared by the expert witness is based on incomplete research or inaccurate or incomplete information, or is incomplete or may be inaccurate, for any reason;
(f) to produce a written report that complies with rules 7.21 and 7.22.
(4) The expert witness’s duty to the court arises when the expert witness:
(a) receives instructions under rule 7.13; or
(b) is informed by a party that the expert witness may be called to give evidence in a proceeding.
(5) An expert witness who changes an opinion after the preparation of a report must give written notice to that effect:
(a) if the expert witness is appointed by a party—to the instructing party; or
(b) if the expert witness is appointed by the court—to the Registry Manager and each party.
(6) A notice under subrule (5) is taken to be part of the expert’s report.
In addition, r 7.23 sets out the consequences of non-compliance with the rules in the following terms:
7.23 Consequences of non‑compliance
If an expert witness does not comply with these Rules, the court may do any of the following:
(a) order the expert witness to attend court;
(b) refuse to allow the expert’s report or any answers to questions to be relied on;
(c) allow the report to be relied on but take the non‑compliance into account when considering the weight to be given to the expert witness’s evidence;
(d) take the non‑compliance into account when making orders for:
(i) an extension or abridgment of a time limit; or
(ii) a stay of the proceeding; or
(iii) interest payable on a sum ordered to be paid; or
(iv) costs.
Note: For the court’s power to order costs, see subsection 117(2) of the Family Law Act.
In light of these extensive regulatory provisions, I do not consider it appropriate to create an avenue for further disputation and/or the elongation of any final hearing, particularly if a further witness was to participate in the proceedings if an independent witness/scribe was permitted to attend with the father. This is because not only will doing so unnecessarily increase the length of any final hearing, but ultimately, if the father wishes to challenge the matters recorded by the expert and/or the opinions that they have formed, then he will have ample opportunity to do so in cross examination at any final hearing.
In light of all of these considerations, I do not consider it appropriate or necessary to accede to the father’s demands about the recording or transcribing of any appointments he undertakes during any expert assessment that involves him. I accordingly shall make an injunction restraining each of the parents from taking and/or facilitating this course of action.
So far as the additional parenting orders sought by the father at paragraphs 1-4 and 7-12 of his Response filed 2 September 2024, I do not consider that in all of the circumstances that I have discussed together with the parenting orders that have successively been made in these proceedings and remain in force, that any of those orders are warranted and importantly nor are they in the best interests of the children at this stage; and certainly not prior to the completion of a more detailed Family Report (which is to be ordered), when all of the complex circumstances for this family can be considered by an expert and recommendations made as to orders that would promote the safety and best interests of the children; which would include any further assessments that might be required and/or courses and/or therapeutic intervention which is recommended to be undertaken by the parties.
At the hearing on 28 November 2024 the parties agreed to an order that they each be restrained from discussing the proceedings with the children. I consider it to be protective of the children to continue that order on the basis that it also include a restraint on the parties from permitting any other person to do so in the children’s presence.
I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 28 February 2025
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