ALLENBY & WADDINGHAM

[2020] FCCA 3471

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALLENBY & WADDINGHAM [2020] FCCA 3471

Catchwords:
FAMILY LAW – Parenting – application for two children aged 14 and 12 to spend time with their father – whether there is an unacceptable risk of harm to the children – where the younger child is autistic – where the father has been previously charged with assault while he was in care of the children – further information regarding the father required.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS ALLENBY

Respondent: MR WADDINGHAM

File Number: ADC 1487 of 2009

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

The Applicant: In Person

Counsel for the Respondent: Mr Harley

Solicitors for the Respondent: Dixon Gallasch

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the orders made 11 June 2014 for the children X born in 2006 and Y born in 2007 to spend time with the father be suspended.

2. That the children spend time with the father each Sunday afternoon from 12.00pm to 5.00pm.

3. That the mother file and serve a Response, affidavit in support and notice of risk within 14 days.

4. That pursuant to s.11F of the Family Law Act 1975, the parties and the children X born in 2006 and Y born in 2007 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Adelaide on 18 May 2021 at 9.30am, with the parties to telephone the Case Coordinator Child Dispute Services on 1300 352 000 to confirm their attendance NOTING that the family consultant is to have discretion as to how the parties attend.

5. 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.

6. That the matter be adjourned to 25 May 2021 at 11.30am for interim hearing in relation to the children’s time with the father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 1487 of 2009

MS ALLENBY

Applicant

And

MR WADDINGHAM

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 an application by the father to reinstitute time under orders that were made in 2014.  Those orders provide for two children, X who is 14 and Y who is 12 but is autistic, to spend time with their father on alternate weekends.  The mother, who is unrepresented today but she tells me that she has sought legal advice and material will be filed next week on her behalf, says that she is concerned that the environment in the father’s home is unsafe for the children, particularly for the children to spend overnight, and particularly for Y who is autistic and, as the mother says, needs to be properly prepared to spend time with the father. 

3. The incident that has precipitated the difficulty occurred on Christmas Day 2019.  The father in his affidavit describes the incident as follows:

   On 24 December 2019 I went to the dentist and had eight teeth removed.  I was in a lot of pain and on painkillers.  On 25 December 2019 I stupidly decided to drink alcohol to relieve the pain.  The alcohol and pain medication interacted.  My mother’s dog bit my hand, leaving a nasty injury.  I pushed the dog out of the way, and my mother then fell over the dog.  I became very distressed at my and my mother’s injuries.  The police were outside the front of my mother’s house, dealing with another matter.  I suffer from major lung disease.  I was choking up and spat to relieve my congestion.  Unfortunately, I accidentally spat on a police officer.  I was arrested and charged with assaulting police.  I eventually pled guilty to assault police and got a suspended sentence with a good-behaviour bond.  It was the biggest mistake of my life.  I do not normally drink alcohol.  I am not a violent person.  The dog was subsequently destroyed because it was violent.  

4. What the father does not say is that all of that apparently happened while the children were in his care.  The mother heard about that event and she has told me the following from the bar table that is not on affidavit and in the absence of any useful information from the father I think I can give some weight to what she says. 

5. She says that she heard from X at about 10 pm that evening after the police had placed X with the paternal uncle.  The mother, not surprisingly, was concerned that the father’s household may not be safe, considering that one reading of the father’s material is that he has abused alcohol in a circumstance where he ought not to have.  I say abuse of alcohol because it would appear that any use of alcohol when he was taking strong painkillers constitutes an abuse of alcohol.

6. That then escalated to a point where the father assaulted a police officer.  He says in his affidavit it was accidental, but I do not accept that, because that would be inconsistent with a finding of guilt and a conviction for assault.  The denial also raises concerns in my mind about the degree to which the father has accepted responsibility for what happened and his willingness to consider what might be appropriate in the future if the children are going to be spending time in his care. 

7. I want to know, for example, about his relationship with alcohol and medication.  I want to know a great deal more about the father and his circumstances, considering that this is a very, very serious matter which the mother alleges at least, and it is not denied by the father, took place in front of his two children.  I am not satisfied at the moment that there is an acceptable risk.  I consider that there is an unacceptable risk in the children spending overnight time with the father until I know more about him and his circumstances.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 21 December 2020