FEDERAL CIRCUIT COURT OF AUSTRALIA
| WALEYS & WALEYS | [2020] FCCA 841 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – consent orders in place – risk asserted – whether time to be supervised. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61C, 61DA, 65D, 65DAA, 69ZT |
| Cases cited: Re K (1994) 117 FLR 63 |
| Applicant: | MS WALEYS |
| Respondent: | MR WALEYS |
| File Number: | SYC 5841 of 2017 |
| Judgment of: | Judge Morley |
| Hearing date: | 26 November 2019 |
| Date of Last Submission: | 26 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Roberts |
| Solicitors for the Applicant: | Ms Reid |
| Counsel for the Respondent: | Gordon & Barry Lawyers Pty Ltd |
| Solicitors for the Respondent: | Bondi Beach Solicitors Pty Ltd |
ORDERS
THE COURT ORDERS THAT PENDING FURTHER ORDER:
The orders made on 25 September 2017 by Judge Henderson are suspended.
That the Mother have sole parental responsibility for the child X born in 2008 (‘X’).
That X live with his Mother.
That X spend time with his Father on each alternate weekend for such period of time between 9:00am and 5:00pm on Saturday and for such period of time between 9:00am and 5:00pm on Sunday as can be arranged, and that such time to be supervised by such of Mr A, Mr B, or a commercial supervision agency agreed upon between the parents in writing, and failing such agreement, by C Family Services.
That the costs of any commercial supervision in accordance with order (4) herein be paid for as follows:
(a)Where there are no arrears of child support owing by the Father for the child, by the parents equally; or
(b)Where there are arrears of child support owing by the Father for the child, at the Father’s sole expense.
That the Father be restrained from allowing Ms D from being present during the time that X spends with his Father.
That the Father be at liberty to contact X by telephone, Skype, or WhatsApp every Monday and Thursday at sometime between 6:00pm and 7:00pm, with the call to be initiated by the Father.
Each of MS WALEYS born in 1964 and MR WALEYS born in 1974 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X, a male, born in 2008, from…
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- WALEYS & WALEYS [2020] FCCA 841
- Case
- [2020] FCCA 841
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were to assess the evidence presented to determine if there was an unacceptable risk to the child X if he had unsupervised contact with his father. This involved considering the potential for future harm, whether physical or emotional, and the connection between any alleged past conduct of the father and the safety of the child. The court also had to consider the appropriate interim arrangements for X's living arrangements, time spent with each parent, and communication, taking into account the best interests of the child.
Judge Morley applied the principle of "unacceptable risk" as the touchstone for the inquiry, drawing on established Family Court jurisprudence. The court acknowledged that at an interim hearing, with contested evidence, it may not be possible to make definitive findings of fact. Instead, the court considered whether the evidence, on the balance of probabilities, indicated a potential jeopardy to the child in the father's care. The court suspended the existing consent orders and made new interim orders. These included the mother having sole parental responsibility and X living with her. Time with the father was to be supervised, with specific arrangements for the cost of supervision depending on child support arrears. The father was also restrained from allowing a particular individual to be present during his time with X, and both parents were restrained from denigrating each other or discussing the proceedings in X's presence. Furthermore, the court made extensive orders regarding the appointment of an Independent Child's Lawyer, the preparation of a Single Court Expert's Report concerning the parents' mental health and X's welfare, and prohibitions on X leaving the Commonwealth of Australia.
Orders
Orders of the court
THE COURT ORDERS THAT PENDING FURTHER ORDER:
1.
The orders made on 25 September 2017 by Judge Henderson are suspended.
2.
That the Mother have sole parental responsibility for the child X born in 2008 (‘X’).
3.
That X live with his Mother.
4.
That X spend time with his Father on each alternate weekend for such period of time between 9:00am and 5:00pm on Saturday and for such period of time between 9:00am and 5:00pm on Sunday as can be arranged, and that such time to be supervised by such of Mr A, Mr B, or a commercial supervision agency agreed upon between the parents in writing, and failing such agreement, by C Family Services.
5.
That the costs of any commercial supervision in accordance with order (4) herein be paid for as follows:
(a) Where there are no arrears of child support owing by the Father for the child, by the parents equally; or
(b) Where there are arrears of child support owing by the Father for the child, at the Father’s sole expense.
6.
That the Father be restrained from allowing Ms D from being present during the time that X spends with his Father.
7.
That the Father be at liberty to contact X by telephone, Skype, or WhatsApp every Monday and Thursday at sometime between 6:00pm and 7:00pm, with the call to be initiated by the Father.
8.
Each of MS WALEYS born in 1964 and MR WALEYS born in 1974 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X, a male, born in 2008, from the Commonwealth of Australia.
9.
X be and is hereby restrained from leaving the Commonwealth of Australia.
10.
It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of two years.
11.
Upon expiration of the period referred to in Order (10) and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s names from the Watch List.
12.
Pursuant to section 68L of the Family Law Act 1975 (Cth), the interests of the child X are to be independently represented by an Independent Child’s Lawyer in these proceedings.
13.
The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order.
14.
Each of the parties shall, within seven days of any request by the Independent Child’s Lawyer:
(a) Complete and provide to the Independent Child’s Lawyer a parenting questionnaire and/or such other information as may be requested.
(b) Provide to the Independent Child’s Lawyer copies of all any documents filed by them in these proceedings together with:
(i) Any medical reports they hold relating to the child;
(ii) Any psychological or school counsellor or pre-school intervention reports they hold relating to the child;
(iii) Any school reports they hold for the child;
(iv) Any other documents they hold and wish the Independent Child’s Lawyer to see and/or that they intend to seek to tender to the Court or rely upon in these proceedings.
15.
Each of the parties shall present X to such places and at such times and dates as are requested and/or advised by the Independent Child’s Lawyer for the purpose of the Independent Child’s Lawyer meeting with the child.
16.
Leave is granted to the Independent Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to section 69ZW and/or in response to subpoena.
17.
Leave is granted to the Independent Child’s Lawyer to issue such further subpoena as they may consider relevant, appropriate, or useful, and such leave expressly authorises and allows the issue of more than five subpoenas by the Independent Child’s Lawyer.
18.
The appointment of the Independent Child’s Lawyer is made on the following bases:
(a) As per the Child Dispute Conference Memorandum;
(b) There is manifest continuing hostility between the parties to the proceedings;
(c) There are issues of anti-social tendencies on the part of a parent or parents or other persons with whom X comes regularly into contact;
(d) There are allegations of significant mental illness or personality disorder in relation to either party or X, or to other persons having significant contact with the child, the symptomology of which condition is alleged to impact negatively upon that parent’s capacity to care or otherwise negatively affect X;
(e) There are issues of drug and/or alcohol abuse in relation to either party or other persons having significant contact with X which are alleged to impact negatively upon that parent’s capacity to care or otherwise negatively affect X;
(f) X is of an age and apparent maturity whereby the International Convention on the Rights of the Child would require that he have a voice in the proceedings and with respect to decisions that will affect his future; and
(g) There are allegations of Family Violence and/or abuse suggested to impact upon X’s best interests.
19.
Within 28 days of the appointment of the Independent Child’s Lawyer, the Mother is to nominate in writing three psychiatrists for the purpose of the appointment of a Single Court Expert, to prepare a Single Court Expert’s Report addressing matters relevant to:
(a) The Mother and Father’s mental health, and other aspects of her/his character, personality, and presentation;
(b) The welfare of X; and
(c) The matters relevant under section 60CC of the Family Law Act 1975 (Cth).
20.
Within 14 days of the Mother’s compliance with order (19) herein, the Father is to elect one of the nominated psychiatrists and pursuant to Division 15.2 of the Federal Circuit Court Rules 2004 (Cth), that nominated psychiatrist to be appointed as the Single Court Expert to prepare the Single Court Expert’s Report addressing the issues set out in orders (19)(a) to (19)(c) herein.
21.
Within 56 days of the Independent Child’s Lawyer being appointed, the Independent Child’s Lawyer shall do all acts and things to prepare a letter of instruction to the Single Court Expert seeking the preparation of the Single Court Expert’s Report.
22.
The letter of instruction to the Single Court Expert to be prepared pursuant to order (21) herein shall include:
(a) The affidavits filed by the Parties in these proceedings; and
(b) Such other material as the Independent Child’s Lawyer considers relevant including from any subpoenaed material.
23.
The Mother and Father are directed to:
(a) Attend all appointments made with the Single Court Expert;
(b) Ensure the attendance of X upon the Single Court Expert at all times nominated by the Single Court Expert when X is in that parent's care;
(c) Comply with all reasonable directions and requests made by the Single Court Expert to assist her/him in the preparation of his/her Single Court Expert’s Report including arranging for the attendance of any other person as requested.
24.
The Mother and the Father shall each pay one half of the cost of the Single Court Expert as and when the payment falls due.
25.
Leave be granted to the Independent Child’s Lawyer to have photocopy access to all material produced under subpoena for the purpose of providing the same to the Single Court Expert and that the fees in respect of such photocopying be waived.
26.
Leave be granted to the parties and the Independent Child’s Lawyer to provide copies of all Applications, Responses, and affidavits filed by the parties to the Single Court Expert as well as all orders made with respect to parenting matters and the Child Dispute Conference Memorandum.
27.
The Father attend a Parenting Order Program course offered by Relationships Australia called ‘Taking Responsibility’, or such other parenting program offered by E Counsellors, in Sydney or Brisbane as soon possible and upon completion of the course provide to the Mother and the Independent Child’s Lawyer the certificate confirming his attendance.
28.
That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family, or any member of the other parent’s household in the presence or hearing of X.
29.
That each of the parents is restrained from allowing X to remain in the presence of or within his hearing of any other person who is denigrating the other parent, any member of the other parent’s family, or any member of the other’s parent’s household.
30.
That each of the parents are restrained from discussing these proceedings with X, from discussing these proceedings within his hearing, or allowing X to remain within the hearing of any other person who is discussing these proceedings.
31.
That the Father is restrained from using marijuana in any of its forms for a period of seven days before he spends time with X, or at any time whilst X is in his care.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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