WALTUS & TREGEAR (No.2)

[2020] FCCA 2239

EDERAL CIRCUIT COURT OF AUSTRALIA

WALTUS & TREGEAR (No.2) [2020] FCCA 2239

Catchwords:
FAMILY LAW – Parenting – what time the children are to spend with their father – where the children live with their mother and spend time with their father – where a child has been having some psychological and emotional difficulties in her relationship with her father – where the children’s views and wishes are recorded in a s.11F memorandum.

Legislation:

Family Law Act 1975 (Cth), s.11F

Applicant: MS WALTUS

Respondent: MR TREGEAR

File Number: DNC 190 of 2014

Judgment of: Judge Young

Hearing date: 23 July 2020

Date of Last Submission: 23 July 2020

Delivered at: Darwin

Delivered on: 23 July 2020

REPRESENTATION

Counsel for the Applicant: Ms Holtham

Solicitors for the Applicant: Story & Associates

Counsel for the Respondent: Ms Czislowski

Solicitors for the Respondent: Ward Keller Lawyers

ORDERS

THE COURT ORDERS BY CONSENT THAT:

1. That the children X born in 2007 (“X”) and Y born in 2009 (“Y”) live with the mother.

2. That the children spend time with their father at any additional time agreed between the parents, after taking into account the respective child’s wishes and any recommendations made by the family therapist.

3. That for the purpose of time spent with the father, the mother shall deliver the children to the father’s home at the commencement of time and the father shall deliver the children back to the mother’s home at the conclusion of time being spent, except that if time spent is extended to include school days, then handover to occur at the children’s school, if a school day.

4. That the father is at liberty to attend and spectate at the children’s sporting activities, and to communicate with the children at those events.

5. That the father is at liberty to communicate with the children at any reasonable time, and for the purpose of this Order, the mother shall provide the father a list of the children’s relevant contact information for their various devices and social media platforms, NOTING it is up to the children whether they respond or not AND NOTING that the children each have devices upon which the father can directly message or call.

6. That the parties forthwith make all arrangements required for family therapy at B Family Services, or such other therapist or organisation which may be agreed between the parties, and the children and each of the parents shall attend such therapy as requested by the therapist engaged by the parties, except that attendance by X is subject to her Headspace psychologist providing confirmation that it is appropriate for X to attend.

7. That if the B Family Services therapist and the Headspace psychologist request authorisation to communicate with each other about matters involving the family, the parents shall forthwith provide such authorisation.

8. That each parent shall forthwith make arrangements to attend “For the Kids” post separation parenting program.

9. That each parent is restrained and an injunction is granted restraining each of them from:

   (a)Physically disciplining the children or otherwise using physical force against the children;

   (b)Exposing the children to family violence within their home;

   (c)Speaking negatively to the children about the other parent or that other parent’s partner; and

   (d)Speaking to the children about these proceedings

10. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship X born in 2007 and Y born in 2009 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 30 November 2020.

11. 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 child’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.

12. 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.

13. 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.

14. 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.

15. 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 children 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.

AND IT IS FURTHER ORDERED BY CONSENT:

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

2. 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).

3. 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.

AND IT IS ORDERED:

1. That the child X spend time with her father as follows:

   (a)From 10am Saturday to 5pm Saturday on 1 August 2020;

   (b)From 10am Saturday to 5pm Saturday each alternate week commencing 22 August 2020; and

   (c)At any other time as requested by the child

2. That the child Y spend time with her father as follows:

   (a)From 10am Saturday 1 August 2020 to 12 noon Sunday 2 August 2020;

   (b)From 10am Saturday to 12 noon Sunday each alternate weekend commencing 22 August 2020; and

   (c)At any other time as requested by the child

3. That the father file his Response, Affidavit in support and Notice of Risk either within 21 days from the conclusion of mediation being held with C Counselling Service or 30 September 2020, whichever occurs first in time.

4. The matter is adjourned to 29 January 2021 at 9:30am for trial call over.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 190 of 2014

MS WALTUS

Applicant

And

MR TREGEAR

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a second interim application in this matter concerning two children, X who is 13 years old and Y who is 10 and a half years old. 

3. Pursuant to consent orders made in 2014 the children spent equal time with their parents however at the beginning of the year difficulties developed, particularly with X.  Those difficulties are described in some more detail in the reasons I gave arising out of the earlier interim hearing on 25 June 2020.  Essentially X has been having some difficulties, including psychological and emotional difficulties and her relationship with her father has, it would appear, been significantly compromised. 

4. The section 11F memorandum dated 7 July 2020 essentially is a canvassing of the children’s wishes. In that memorandum X says pretty clearly that she does not want to continue with the week about living arrangement. She makes various complaints about her father including at one point that he was overly physical with her and she was physically restrained. There does appear to be evidence in the 11F memorandum however that at times X’s behaviour is difficult to manage and both her mother and father find that difficult to manage. Nevertheless a physical restraint, if that is what it was, of a child of almost 13 is likely to be highly unproductive and so it appears to have been in this case.

5. X has objected and feels somewhat estranged from her father perhaps significantly as a result of that incident in addition to some other matters as well.  The upshot is that she does not want to spend substantial and significant time with her father and indeed does not want to spend overnight time with her father.

6. She told the family consultant that she would be willing to spend time with her father once or twice a month to begin with until she felt comfortable in his presence again.  The dispute between the parents in relation to X is whether she spends once a month on Saturday or twice a month on Saturday.  In other words once every month or once every fortnight with her father from 10 am to 5 pm. 

7. The mother has put on affidavit material saying that X has said that she wants it to be once a month.  That would appear to be inconsistent with what the family consultant has recorded at paragraph 26 of the 11F memorandum and indeed what lead to the family consultant’s recommendation at paragraph 76 that X spend alternate Saturdays or Sundays with her father.

8. I am satisfied the family consultant canvassed X’s views with her carefully and while the wishes of a 13-year-old would ordinarily be given a great deal of weight, and this case is no different, the family consultant was of the view that in order to maintain the relationship between X and her father that more regular time was appropriate.

9. By way of background the parties have generally agreed that the present orders are to be varied and that the children live with their mother.  The issue is how much time they spend with their father.  The parties have also agreed that they will engage in family therapy and that X is to continue with her psychological therapy.  The parties are to undertake a post-separation parenting course.  There is agreement for the involvement of family therapy as they sort through their difficulties. 

10. Whether or not X spends once a month with her father or twice a month with her father is, it seems to me, a pretty evenly balanced proposition.  The once a month simply depends on her wishes, as reported to her mother or by her mother, and the twice a month is consistent with what the family consultant believed was appropriate having regard to X’s wishes. 

11. Taking all of that into account I think that it is appropriate to adopt the recommendations of the family consultant.  There will be an order that X spend from 10 am to 5 pm on alternate Saturdays with her father.

12. In relation to Y the dispute is about the mother’s proposal for the child to spend time with the father one night a fortnight from Saturday to Sunday and the father’s proposal which is for the child to spend time with the father from Friday after school to Monday before school.

13. The situation in relation to Y is that she was happy to see and spend time with her father.  Whether or not X went to spend time with her father did not matter to her.  She told the family consultant that she would like to see her father on weekends and she wanted that to occur every second weekend for one overnight.  The recommendation of the family consultant in relation to that was she did not nominate whether it ought to be one, two, or three nights a fortnight, but she did recommend that there be overnight time each alternate weekend.

14. As this is an interim hearing it is perhaps not possible to explore all of those matters in detail.  Again, this family is continuing to engage in family therapy.  I think doing the best I can I will recognise Y’s wishes as I have done with X’s wishes. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 12 August 2020