FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wayfield & Gadsby [2024] FedCFamC2F 725
File number(s): HBC 417 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 7 June 2024 Catchwords: FAMILY LAW – PARENTING – undefended hearing – allegations of family violence – assessment of risk of harm to child – admissibility of video recording of father – evidence as to video recording taken on voir dire – video recording not admitted into evidence on public policy grounds – recording likely made contrary to provisions of Listening Devices Act 1991 (Tas) – parental responsibility and decision making – father’s unsupervised time with the child conditional on restraints and protective orders Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Listening Devices Act 1991 (Tas)
Cases cited: Garrido & Garrido [2024] FedCFamC2F 634
Huffman & Gorman (No 2) [2014] FamCA 1077
Tonkin & Rojas [2024] FedCFamC2F 358
Division: Division 2 Family Law Number of paragraphs: 49 Date of hearing: 22-23 May 2024 Place: Hobart For the Applicant: No appearance by or on behalf of the Applicant Counsel for the Respondent: Mr Trezise Solicitors for the Respondent: Butler McIntyre & Butler Counsel for the Independent Children's Lawyer: Mr McKenna The Independent Children's Lawyer: Ms Pagett, Pagett & Associates ORDERS
HBC 417 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WAYFIELD
Applicant
AND: MS GADSBY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
7 JUNE 2024
THE COURT ORDERS THAT:
1.All previous parenting orders are hereby discharged.
Parental responsibility
2.Ms Gadsby (“the mother”) have sole decision making responsibility for all major or long-term issues affecting the child, Z born 2019 (“Z”).
3.For the purpose of exercising decision making in accordance with Order 2, the mother is to give Mr Wayfield (“the father”) 30 days prior notice of the decision before it takes effect.
Live with and spend time with arrangements
4.Z will live with the mother, except when spending time with the father.
5.Z will spend time with the father as follows:
(a)On a two-week rotating basis as follows:
(i)In week one, commencing 17 June 2024: each Monday and Thursday from the end of school until 6:00PM.
(ii)In week two, commencing 29 June 2024: on Saturday from 10:00AM until 6:00PM.
(b)After the expiry of six (6) months from the date of these Orders and conditional upon the father complying with the requirements in Orders 6, 7 and 8 of these Orders, the time in week two will occur on both Saturday and Sunday (but not overnight) from 10:00AM until 6:00PM each day.
(c)On the following special occasions:
(i)For Christmas in odd numbered years, from 12:00 noon Christmas day until 6:00PM.
(ii)For Christmas in even numbered years, from 12:00 noon Christmas eve until 6:00PM.
(iii)For Z's birthday, if not otherwise in the care of the father, from after school (or 2:00PM if a non-school day) until 6:00PM.
(iv)For Easter, in odd years, on Easter Saturday from 10:00AM until 4:00PM.
(v)For Easter, in…
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- [2024] FedCFamC2F 725
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CaseChat Overview and Summary
The court found that the video recording, which was potentially obtained in violation of the Listening Devices Act 1991 (Tas), should not be admitted due to public policy considerations. Given the allegations of family violence and the need to protect the child, the court imposed restraints and conditions on the father's unsupervised time with the child. The court allocated sole decision-making responsibility to the mother, with the father required to undergo specific assessments and treatments, including completing a behavioural change course, undertaking a mental health assessment, and following any recommended treatments. The court also set out detailed arrangements for the child to spend time with the father, subject to compliance with certain conditions, and outlined specific changeover arrangements and communication protocols between the parents.
The court discharged all previous parenting orders and established new arrangements that prioritised the child's safety and well-being, incorporating protective orders to prevent family violence and substance abuse during the father's time with the child. The father was also required to complete various health and behavioural assessments and treatments within specified timeframes. The court extended the appointment of the Independent Children’s Lawyer to ensure the child’s best interests were continuously represented and to facilitate discussions with the father regarding the court’s orders.
Orders
Orders of the court
HBC 417 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR WAYFIELD
Applicant
AND:
MS GADSBY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
7 JUNE 2024
THE COURT ORDERS THAT:
1. All previous parenting orders are hereby discharged.
Parental responsibility
2. Ms Gadsby (“the mother”) have sole decision making responsibility for all major or long-term issues affecting the child, Z born 2019 (“Z”).
3. For the purpose of exercising decision making in accordance with Order 2, the mother is to give Mr Wayfield (“the father”) 30 days prior notice of the decision before it takes effect.
Live with and spend time with arrangements
4. Z will live with the mother, except when spending time with the father.
5. Z will spend time with the father as follows:
(a) On a two-week rotating basis as follows:
(i) In week one, commencing 17 June 2024: each Monday and Thursday from the end of school until 6:00PM.
(ii) In week two, commencing 29 June 2024: on Saturday from 10:00AM until 6:00PM.
(b) After the expiry of six (6) months from the date of these Orders and conditional upon the father complying with the requirements in Orders 6, 7 and 8 of these Orders, the time in week two will occur on both Saturday and Sunday (but not overnight) from 10:00AM until 6:00PM each day.
(c) On the following special occasions:
(i) For Christmas in odd numbered years, from 12:00 noon Christmas day until 6:00PM.
(ii) For Christmas in even numbered years, from 12:00 noon Christmas eve until 6:00PM.
(iii) For Z's birthday, if not otherwise in the care of the father, from after school (or 2:00PM if a non-school day) until 6:00PM.
(iv) For Easter, in odd years, on Easter Saturday from 10:00AM until 4:00PM.
(v) For Easter, in even years, on Easter Sunday from 10:00AM until 4:00PM.
(d) After the expiration of twelve (12) months from the date of this Order, Z will spend additional time with the father as may be agreed in writing by the parents.
(e) If the father does not exercise spending time with Z pursuant to Order 5(a) or 5(b) of these Orders on five occasions without notice and agreement, his time pursuant to Orders 5(a), (b) and (c) inclusive is suspended.
6. The mother is at liberty to request that the father undertake CDT testing on two (2) occasions as follows:
(a) Within one month of time progressing between the father and child in accordance with Order 5(b) of these Orders; and
(b) Within one month of the twelve (12) month anniversary of the date of these Orders.
7. For the purposes of Order 6, the following must be complied with by the father:
(a) Within two (2) working days of a request pursuant to Order 6, the father shall forthwith do all things necessary to pay for and submit to a chain of custody under supervision CDT assessment conducted by B Health Service;
(b) The father shall authorise and direct the testing facility and his general practitioner to forward the results of the CDT test on each occasion of testing to the mother’s email address referred to in Order 14 of these Orders; and
(c) The father will be responsible for the cost of this testing.
8. Should the father's CDT test result pursuant to Order 7 herein be equal to or exceed 2.1%, then time pursuant to Order 5(b) or 5(d) herein is suspended until the father produces a further CDT test result at his expense, the result of which is 1.7% or less, at which time the father's time with the child pursuant to Order 5(b) or 5(d) will recommence.
Changeover arrangements
9. Unless otherwise agreed, changeover between the parents will occur in this way:
(a) At school on days Z is at school;
(b) On days that Z is not at school, at McDonalds in Suburb C;
(c) The parents may agree upon alternative changeover arrangements in writing providing the agreement is recorded via the Our Family Wizard app and made at least 24 hours before time is to occur;
(d) Each parent may nominate a third party, other than Ms Coulson, who is known to each other and Z to attend and facilitate changeover provided that is communicated to the other parent before changeover; and
(e) Each parent will ensure handover is prompt and that any words spoken are polite and not related to family law matters.
Communication and related orders
10. The father is permitted to communicate with Z by phone or electronic device as follows:
(a) In week 2 (specified in Order 5(a)(ii) and 5(b) of these Orders) on Thursday at 4:00PM;
(b) The father is to initiate the call within the 10 minutes before or after 4:00PM to the device, telephone number or app nominated by the mother;
(c) The mother is to nominate the telephone number, device or app within seven (7) days of these Orders and ensure the device is charged and available for Z to receive the call and give privacy for the communication; and
(d) If the father does not make the call within the period specified in Order 10(b), the mother does not need to facilitate the communication or provide a make up communication.
11. The father is permitted to send gifts, cards, and letters to Z AND FOR THIS ORDER the mother is required to give any such items to Z.
12. Except in the case of an emergency, the parents must use the Our Family Wizard app (or such other parenting communication application as agreed in writing) to communicate with one another.
13. For the purposes of Order 12, the mother is to establish the Our Family Wizard app (or other agreed parenting application) account within seven (7) days of the date of these Orders and invite the father to join, with each party paying their own costs of obtaining the app.
14. In the case of emergency the parents can contact one another by phone AND FOR THIS ORDER, each parent is to keep the other informed of their preferred mobile telephone number, residential address and email address for use with the Our Family Wizard app (or other agreed parenting application).
Protective orders, injunctions and restraints
15. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the mother and Z, the father is restrained from:
(a) Subjecting Z to any form of physical discipline;
(b) Exposing Z to any form of family violence as defined by s 4AB of the Family Law Act 1975 (Cth);
(c) Exposing the mother to any form of family violence as defined by s 4AB of the Family Law Act 1975 (Cth);
(d) Using illicit drugs in the 24 hour period immediately prior to Z spending time with the father and during the time Z is in the father's care AND FOR THIS ORDER the term 'illicit drugs' is defined to mean and include any drug that is illegal to have (e.g., 3,4 Methylenedioxymethamphetamine (MDMA), methamphetamine, and cocaine) and the non-medical use of drugs that are legally available but not prescribed to a party, such as pain killers and sleeping pills; and
(e) Drinking alcohol during any time Z is in the father's care, and in the 12 hours immediately prior to this time.
16. For the personal protection of the parents and Z, and by way of ancillary Order, the father is restrained by injunction from:
(a) Denigrating, demeaning or belittling the mother or members of the mother's family to, or in the presence of the mother or Z; and
(b) Entering onto the mother's place of residence.
Engagement with health care and related supports
17. Within six (6) months from the date of these Orders, the father must enrol in and complete the Circle of Security or an equivalent men's behavioural change course and provide proof of completion to the mother.
18. Within three (3) months of the date of these Orders, the father must:
(a) Contact D Organisation and obtain advice and assisting on utilising the PACE model for behavioural support of Z and implement the model; and
(b) Seek a referral from his general practitioner to a psychiatrist for a mental health assessment to determine whether he suffers from any mental health condition or disorder including, but not limited to, an Alcohol Use Disorder or mental health disorder.
19. Following assessment pursuant to Order 18(b) of these Orders, the father must:
(a) Provide a letter from the psychiatrist identifying the outcome of the assessment to the mother within 14 days of the assessment being completed and for this purpose the father must provide a copy of these Orders to the psychiatrist; and
(b) Undertake treatment and follow any recommendations of the psychiatrist about management of any diagnosed disorder or psychological symptoms or traits.
20. The mother is to continue receiving psychological supports and treatment for so long as recommended by her mental health or allied health professional and must follow the reasonable recommendations of that professional.
Publication of these orders and related matters
21. Each of the parents and the Independent Children's Lawyer may provide a copy of these Orders to:
(a) D Organisation;
(b) Any school Z attends; and
(c) Any medical or allied health professional that the parents attend and/or that Z may attend from time to time.
22. This Order acts as an authority to all health and medical professionals who treat Z from time to time to provide each of the parents with all information and documentation sought by them in relation to Z’s welfare and medical treatment from time to time, including but not limited to copies of all reports, referrals, records and documents pertaining to Z (at each party’s own cost).
23. This Order acts as an authority to all schools attended by Z from time to time, to provide to each of the parents all information and documentation sought by them in relation to Z’s welfare, progress and activities at school from time to time, including but not limited to providing the parties with copies of school newsletters and other notes/letters to the parties, copies of Z’s school reports, details of Z’s parent/teacher interviews, copies of order forms for Z’s school photos and certificates and awards obtained by Z (at each party’s own cost).
24. Within 28 days of the date of these Orders, the Independent Children’s Lawyer is to discuss with and explain to the father the Court’s Final Orders and Reasons for Judgment.
25. The appointment of the Independent Children’s Lawyer is extended for a period of 28 days from the date of these Orders.
AND THE COURT NOTES THAT:
A. Pursuant to s 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if he/she holds reasonable belief that the Orders for personal protection in Order 15 of these Orders have been breached.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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