Waddingham & Allenby (No 2)

[2021] FCCA 1703

FEDERAL CIRCUIT COURT OF AUSTRALIA

Waddingham & Allenby (No 2) [2021] FCCA 1703

File number:	ADC 1487 of 2009
Judgment of:	JUDGE YOUNG
Date of judgment:	25 May 2021
Catchwords:	FAMILY LAW – parenting – concerning two children who are fourteen and thirteen years old – whether the children should spend time with the father – where the father was previously convicted of assaulting police while in the presence of the children – where there are concerns about the father’s abuse of alcohol – where there are allegations of the father being hostile towards the mother – where the eldest child expressed a wish to spend further time with the father – where the Family Consultant concluded it was not appropriate to interview the youngest child due to her disability – Court satisfied any risk to children in spending time with the father can be mitigated by injunctive order.
Legislation:	Family Law Act 1975 (Cth) s 60CC
Number of paragraphs:	14
Date of hearing:	25 May 2021
Place:	Adelaide
Solicitor for the Applicant:	Mr Harley of Dixon Gallasch Pty Ltd
Solicitor for the Respondent:	Ms Tligi of Calderwood Atkinson

ORDERS

ADC 1487 of 2009

BETWEEN:

MR WADDINGHAM

Applicant

AND:

MS ALLENBY

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	25 MAY 2021

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:

1.That the children X born in 2006 and Y born in 2007 live with the mother.

2.That the said children spend time with the father from the conclusion of school or 3.00pm if a non-school day Friday to the commencement of school or 9.00am if a non-school day Monday of each alternate weekend commencing on 4 June 2021.

3.That if Y becomes distressed whilst in the father’s care the father is to return Y to the mother’s care and communicate with the mother in relation to the same only.

4.That changeovers not occurring at school to occur between the father and the mother’s agent at B Street, McDonalds.

5.That the father be restrained and injunction granted restraining the father from texting the mother except in case of emergency and then only with specifics relating to the child and circumstances.

6.That the father be restrained and injunction granted restraining the father from consuming alcohol while the children are in his care.

7.That the parties do participate in random urine drug screen testing as requested by the other party via his/her solicitor NOTING THAT the such request is not to be made before 26 June 2021 on the following conditions, noting that such request shall be limited to one test with the requesting party to pay for the initial cost of the test and the party being tested to reimburse the requesting party if any of the tests return a positive result for any illegal drugs;

(a)The provision of the urine sample is to be personally supervised and observed by a qualified medical practitioner or their authorised person in accordance with the chain of custody protocol specified in AS/NZ 4308:2008;

(b)A written request be forwarded to the party’s solicitor;

(c)The party submits to the said tests within 24 hours of his solicitor’s receipt of the said written request; and

(d)The party forward a copy of the results of such tests to the other party’s solicitor as soon as they become available.

8.That the father obtain at his own expense a forensic psychiatric report from Dr C and file and serve the same on or before 25 July 2021 NOTING THAT the father will subpoena his notes from Dr D with a view to providing the same to Dr C.

9.That the father’s lawyer is to provide Dr C copies of all documents filed, court orders made in these proceedings since 18 September 2020 together with the Child Inclusive Memorandum to the Court dated 18 May 2021 and the Family Report release on 7 October 2009.

10.That pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children X born in 2006 and Y born in 2007 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

11.That immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

12.That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children X born in 2006 and Y born in 2007 of the relationship attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 29 October 2021.

13.That the family report to deal with the following matters:

(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

(b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

14.That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

15.That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

16.That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

17.That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the 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 child/ren to whom these proceedings relate:

(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.

NOTING:

A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 8 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

18.That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

19.That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

20.That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any  material produced pursuant to subpoena  and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served prior to the family report interviews as follows:

(a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

(b)annexing such material as is considered relevant, with

(c)the affidavit to be paginated, indexed and exhibits tagged.

21.That the parties, their legal representatives and the Independent Children's Lawyer attend a Family Dispute Resolution Conference at the Legal Services Commission of SA on Thursday, 11 November 2021 at 1.30pm.

22.That the Independent Children’s Lawyer forward to the Legal Services Commission of South Australia, Family Dispute Resolution Unit, within (7) days of the Order being made the following:

(a)A copy of the Order;

(b)The contact details of all parties involved (including current postal and telephone details).

23.That the Independent Children’s Lawyer forward to the Legal Services Commission of South Australia, 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 all parties.

24.That the matter is listed for trial on 29 and 30 November 2021 and 1 December 2021 at 10.00am (allowing three days).

25.That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness complying with rule 15.28 of the Federal Circuit Court Rules 2001 intended to be relied upon at trial no later than 28 days prior to the trial.

26.That on or before 28 days prior to trial the applicant pay the setting down fee and such further daily hearing fee should the matter continue to day 3 and the respondent pay such further daily hearing fee on day 2 as required pursuant to the Family Law (Fees) Regulation 2012.

27.That at least 48 hours prior to trial, Counsel for each party  and the Independent Children’s Lawyer file and serve a Case Outline document which clearly identifies the following:

(a)a list of the material relied upon;

(b)a brief chronology listing significant events;

(c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (section 60CC factors);

(d)a list of other contentions relevant to the decision;

(e)whether the presumption of equal shared parental responsibility applies (section 61DA), and if not the contentions relied upon;

(f)a list of the considerations relevant to considerations of equal and substantial parenting time (section 65DAA);

(g)a list of other relevant considerations (including the relevant section number) (for example, sections 60CG, 61F, 65DAB and/or 65DAC); and

(h)the actual orders sought.

28.That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court.

29.That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 14 days before the commencement of the hearing.

30.That in the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.

AND THE COURT FURTHER NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Waddingham & Allenby (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an interim hearing concerning X, who is 14 years old and Y, who is 13 years old. 

2. It is agreed that Y has been diagnosed with severe autism. When the Child Inclusive Conference was held on 18 May 2021, the Family Consultant, having observed Y, concluded that it was not appropriate to interview her.  I infer from that that Y’s disability is very significant. 

3. The parties have agreed in substance that X should spend time with his father on alternate weekends, from Friday afternoon to Monday morning.  This reflects the recommendations of the Family Consultant. The Family Consultant was obviously very influenced in her view by X’s strong wish to spend more time with his father. This wish to spend further time with the father comes after I limited the time that both children spent with their father to Sunday afternoon every week following an extraordinary incident in Christmas last year when the father became drunk.  Apparently, others were also drunk during a Christmas celebration and then police were called.  The father was charged and subsequently convicted of assaulting police. 

4. The Family Consultant raises real concerns about the father. Particularly concerning his apparent dysregulation, his mental health, and whether he has an acquired brain injury and how that may be affecting him.  If those matters are affecting him, they are relatively subtle, because the Family Consultant did not form any particular view about the father’s capacity to care for these children.  Indeed, she seems to have formed the view with X, at least, that the father was capable of caring for him adequately over an alternate weekend.  Otherwise, she would not have made the recommendation.  There is nothing in the Child Inclusive Conference Memorandum that points to the incapacity of the father. Though having regard to the incident at Christmas last year, I have very serious reservations about his parenting capacity. 

5. I am not aware of any evidence that the children are at risk of physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  That is, of course, subject to the qualification that I mentioned in relation to the Christmas 2020 episode.  Bearing in mind that that episode concerned the father’s consumption of alcohol, I consider that any risk to the children from the father’s consumption of alcohol can be acceptably mitigated by making an order that the father is not to consume alcohol while the children are in his care. This will be made by consent as I understand it.

6. The other factor that was raised by the Family Consultant was the father’s hostility towards the mother. Specifically, the allegation of a vast number of text messages being sent by the father to the mother. This led to an Interim Intervention Order being made against the father, naming the mother as the protected person.  I am told that the final hearing of that has not yet taken place. 

7. While I agree with the submissions of Ms Tligi that there are real bases for concern about the father, ultimately, I am persuaded that there is no matter in section 60CC(2)(b) of the Family Law Act 1975 (Cth) (the Act) that sways the matter, particularly having regard to an injunctive order preventing the father from consuming alcohol while the children are in his care. 

8. I am satisfied that I do need to give consideration to section 60CC(2)(a) of the Act – that is the benefit to the children of having a meaningful relationship with both parents. It is uncontroverted that in the past both children have spent significant and substantial time with the father. Ms Tligi said that Y has expressed a wish to her mother not to spend time with the father. In the mother’s affidavit filed in December 2020 (not her affidavit filed for this interim hearing), Ms Tligi points out that the mother gives evidence about Y’s wishes. She says:

   Y does not want to stay over at her father’s home.  She wants to visit him but becomes anxious when I ask her if she wanted to sleep at her father’s home.

9. Given the level of hostility between the parties in this case it is very difficult for me to attribute the proper weight to that statement. This is of particular difficulty in view of the Family Consultant’s decision not to interview Y and not to seek to ascertain her wishes. I have no independent evidence about that whatsoever.  However, I do know that prior to the last set of orders Y was spending significant and substantial time with the father while her brother was also spending time with the father. 

10. The evidence before me about Y and her wishes is unsatisfactory.  I do not have any detailed evidence about the level of her disability, her intellectual capacity, how she has responded in the past to spending time with the father or anything of that kind.  I have the mother’s statement about her wishes, without any particular information about how those wishes were imparted or of Y’s capacity to formulate and express wishes.  The independent evidence suggests that there is some issue about that. While I do not discount what the mother says about that, I am unable to reach the conclusion that there is any particular danger to Y or risk of harm to her in the course that I propose to take. 

11. There will be an order for Y to spend time with the father. I will include in that order that if Y becomes distressed for any reason the father is to arrange to return Y to her mother and the father is to communicate with the mother for that purpose only.  The father will not be permitted to approach her directly. In making this order I take into account the fact that the matter will be listed for trial in November 2021, which is about six months away.  If there is a particular problem with Y spending time with the father that should become apparent over those six months. 

12. I also propose to make an order for the preparation of a family report.

13. I will list the matter for trial for three days commencing on 29 November 2021.

14. Otherwise, I make the orders as per the minute. 

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       26 July 2021