ALESSI & RAMONT

[2020] FCCA 3542

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALESSI & RAMONT [2020] FCCA 3542

Catchwords:
FAMILY LAW – Parenting – concerning two children aged five and four years old – where the parties have previously entered into a parenting plan for the children to live with the father and spend time with the mother – where the mother has withheld the children – where the mother makes various allegations against the father – where the child protection services have provided a summary of what they know about the parties and their children – where not satisfied there is an unacceptable risk of harm to the children by reinstating the previous parenting plan.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR ALESSI

Respondent: MS RAMONT

File Number: ADC 5084 of 2020

Judgment of: Judge Young

Hearing date: 30 November 2020

Date of Last Submission: 30 November 2020

Delivered at: Darwin

Delivered on: 30 November 2020

REPRESENTATION

Counsel for the Applicant: Ms Fuda

Solicitors for the Applicant: Pascale Legal Barristers & Solicitors

Counsel for the Respondent: Mr Koziol

Solicitors for the Respondent: BK Legal

ORDERS

UPON NOTING:

That these orders give effect to the previous May 2020 parenting plan.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the children X born in 2015 and Y born in 2016 live with the father.

2. The children will spend time with the mother from 5.00pm Thursday until 5.00pm Sunday in week one, and from 5.00pm Thursday until 12pm Saturday in week two.

3. The children are to bathe at separate times. 

4. The children are to sleep in separate rooms.

5. That each parent can call the children every second night at 7.00pm and speak to them for up to 15 minutes in private.

6. That each parent contact the other parent as soon as practicable when the children have an issue or a proposed celebration.

7. That each parent will contact the other parent as soon as practicable when a child requires medical attention.

8. That each parent use a communication book to share other important information regarding the children.

9. That each parent be restrained and an injunction do issue restraining each parent from subjecting the children to physical punishment.

10. That the children are not to be left alone at any time while the children are in the care of the respective parents.

11. That pursuant to s.11F of the Family Law Act 1975 the parties attend reportable child dispute conference at the Federal Circuit Court of Australia, Adelaide on 31 March 2021 at 9.30am with a family consultant, to discuss the care, welfare and development of the children X born in 2015 and Y born in 2016 in an endeavour to resolve any differences between the parties in relation thereto with the parties to telephone the Case Co-ordinator Child Dispute Services on 1300 352 000 to confirm their attendance.

12. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

13. The parties be at liberty to inspect only and the parties’ legal representatives and the Independent Children’s Lawyer (if appointed) be at liberty to inspect and photocopy the document produced by the Department for Child Protection in response to a request by the Court NOTING THAT this information is confidential and cannot be disclosed to any other person or entity without an Order of this Court and NOTING penalties may apply pursuant to s.121 of the Family Law Act 1975 if the report is printed or published other than as directed in these proceedings

14. That pending further order, the parties’ legal representatives are restrained from providing a copy of the document to any other person.

15. That the matter be adjourned to 29 April 2021 at 9.30am for mention.

IT IS NOTED that publication of this judgment under the pseudonym Alessi & Ramont is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 5084 of 2020

MR ALESSI

Applicant

And

MS RAMONT

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 parenting application concerning two children, X, who is five, and Y, who is four.  The parties do not agree on when they separated.  The father says 2019, the mother says 2017.  In any event, the parties have entered into two parenting plans, one in February 2020 and a subsequent one in May 2020, that provided that the children would spend five nights in 14 with the mother and nine with the father.

3. The mother has withheld the children, and indeed it appears that she relocated for a period of three months, about three months ago, taking the children with her.  As far as I can see from the materials, the children have not spent any time with the father in accordance with the parenting plan.  According to the materials they were taken out of, in the case of X, his kindergarten, and in the case of Y, from her day care, by the mother. 

4. In her affidavit filed today, at paragraph 6, the mother alleges that:

   The children had disclosed to me that the father had been smacking them quite often and had told them not to tell me.

5. There is no particularity about that claim.  It is not said when it occurred or what the circumstances were.  It is a claim notable for its lack of particularity.

6. Another claim is made at the next paragraph as follows:

   The children had also disclosed that the father had been leaving them at home alone when he went to the shops.  They told me they felt scared.

7. Again, there is no particularity about that claim.  There are some allegations of family violence, again lacking particularity. 

8. However, there are some allegations with a degree of particularity.  These are that the father assaulted the mother in October 2015; that in March 2020, the father was verbally aggressive to B, the child of the mother’s; that in March 2020, an argument developed between the father and the mother, he poured water over her head and attempted to headbutt her, she scratched him.

9. It is said that on 19 June 2020, while the father was driving the mother and the children from the shopping centre to their home, (apparently he had volunteered to do that), he became “wound up” and was “speeding and driving erratically” – again, no particulars.

10. At paragraph 72, there is reference to an incident in 2019 when, according to the mother, the father caused the children to swear at her and stick their middle fingers up at her.  They are the allegations. 

11. I asked the Department of Child Protection liaison officer to email my chambers with a summary of what was known about these parties and their children.  I received an email very promptly from the court liaison officer which I found very helpful, and that will be exhibit C1.  I will read the entirety of it.

    The Department does not have an open case in relation to this family.  The Department have an extensive history of child protection notifications regarding this family dating back to 2013.  The reported concerns have pertained to:

    - Domestic violence between the mother and the father, which impacted in the children with them not wanting to see their father.  The father has been physically abusive to the children, including the mother’s other children (not party to the proceedings).

    - The mother having drug dependency and has been convicted of driving under the influence with the children in the car, previously.  The mother has a history of mental illness which has led her to self-harm and often requires hospital admission because of it.

    - Concerns regarding the state of the home, including animal faeces in the living area, bedroom, laundry and the kitchen that have been stepped in and tracked through the house.  A strong ammonia smell from cat urine causing “respiratory discomfort and stung throat and nose”.

    In 2013, the Department undertook an investigation and confirmed inadequate supervision of the children by the mother.  At this time, the mother engaged with services and the Department closed their involvement with the family.

    The most recent Child Protective concerns regarding the children were received in September 2020.  The reported concerns pertained to the state of the mother’s home, including animal faeces in the living area, bedroom, laundry, and in the kitchen, that had been stepped in and tracked through the house.  A strong ammonia smell from cat urine causing “respiratory discomfort and stung throat and nose”.

    The family were referred to the Department of Human Services Child Wellbeing Program.  The Program worked with the mother and the family to connect them with the services to support their areas of need.  The mother was linked in with services to assist with her parenting capacity, drug and alcohol issues, the children’s ongoing emotional wellbeing and the mother’s mental health.  Given the mother is engaged with multiple services, the Child Wellbeing Program closed their involvement with the family in October 2020.

12. All in all, I am not satisfied there is any unacceptable risk in returning to the previous parenting program.  I think given the references in that memorandum to current concerns about the mother’s parenting capacity and her drug and alcohol issues, it is appropriate that the parenting plan be reflected in orders until further order.  I propose to make orders giving effect to the May parenting plan. 

13. There will be a child dispute conference on 31 March at 9.30 am and I will adjourn the matter for mention to 29 April at 9.30.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 23 December 2020