BECKWORTH & GARNETT (No.2)

[2017] FCCA 1229

FEDERAL CIRCUIT COURT OF AUSTRALIA

BECKWORTH & GARNETT (No.2) [2017] FCCA 1229

Catchwords:
FAMILY LAW – Interim parenting – where Independent Children’s Lawyer sought leave to file in Court a Notice of Risk immediately before reasons for judgment were to be published and orders made in the matter before the Court – where the subject child has threatened self-harm – where the Court considered postponing making orders and publishing reasons – where the Court ultimately decided that it was in the best interests of the child that orders be made, and reasons published, as originally planned.

Applicant: MR BECKWORTH

Respondent: MS GARNETT

File Number: SYC 6947 of 2012

Judgment of: Judge Altobelli

Hearing date: 9 May 2017

Date of Last Submission: 9 May 2017

Delivered at: Wollongong

Delivered on: 9 May 2017

REPRESENTATION

Solicitors for the Applicant: Rossi Simicic Lawyers

Counsel for the Respondent: Mr Thomas

Solicitors for the Respondent: A R Connolly and Company Lawyers

Solicitors for the Independent Children's Lawyer: Legal Aid Commission of NSW

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

SYC 6947 of 2012

MR BECKWORTH

Applicant

And

MS GARNETT

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I am about to hand down reasons for Judgment in the matter of Beckworth & Garnett.  Shortly before I was about to hand down reasons for judgment, it came to my attention that the Independent Children’s Lawyer had a draft Notice of Risk that she sought to rely on.  As it turns out, I granted leave to the Independent Children’s Lawyer to file in Court that Notice of Risk.  During the course of the proceedings this afternoon, I inquired of the Independent Children’s Lawyer as to the details that were behind the particulars of the alleged risk.  For the record, at section 4 of the Notice of Risk, the Independent Children’s Lawyer has caused to be stated:

   Subject child X, born (omitted) 2005, has, on 8 May 2017, made threats of self-harm and disclosed previous self-harm to her hand whilst living in the father’s household.

2. Ms B very graciously, and in a situation where she could well have refused without any criticism from the Court, nonetheless acceded to the Court’s request to be told specifically what it was that X told her that would give rise to the particulars insofar as it relates to a threat of self-harm.  I mention that the Court did not request Ms B to provide anything about the other issue raised and that is the previous self-harm.  Ms B explained to the Court that X had said to her the following words:

   I just feel like I want to hurt myself.

3. The concern that the Court had was whether it should, in the circumstances, postpone the handing down of reasons for judgment and the making of orders.  Of course, the difficulty that all the parties, including the Independent Children’s Lawyer had, is that they do not know what is in my reasons for judgment.  I have heard brief submissions from the parties.  It seems common ground between the parents that something will be done urgently to have X attend counselling or to be assessed in some fashion.  That is most appropriate and the Court can only encourage all parties involved to have this done as soon as possible.

4. The Court adopted the rather unorthodox course of inquiring whether it is possible that X knew that I was handing down judgment this afternoon.  The reasons for that will become apparent on reading my reasons for judgment and I will say no more.  It is an uncontested fact, it would seem, that the parties were notified about my intention to hand down judgment shortly after noon yesterday. 

5. Exhibit A1, which was made available to the Court today, purports to be X’s diary entry for yesterday, which says quite clearly, and I quote:

   The Court day tomorrow, the big day, 09/05/17.

6. She goes on to say:

   I need to know what to do.  I will stress out all day and can’t stop thinking about it.  I just need help and advice.  I need help.

7. On seeing this document, the Court decided that it should go ahead and hand down its reasons for judgment.  At the very least, and consistent with Ms B’s submissions, X needs to know what the Court has decided.  The elephant in the room is how X came to know about the fact that the judgment was being handed down today.  That, of course, is a matter for final hearing and the appropriate testing of evidence. 

8. I am going to hand down my reasons for judgment in just a moment, and the parents and their representatives will see that I have not changed the existing orders in relation to X;  that is to say, the orders that are previously in place for her will continue.  That is not to say that should further evidence become available which would cause the Court to adopt a different view, that it will not revisit this issue. 

9. The Court observes that it has made certain findings in this case, almost entirely based on the Mother’s own evidence.  The Court, in its reasons for judgment, makes it very clear that it believes that a family report is not appropriate in this case and that the case urgently needs two things:  appropriate expert evidence, and for it to be heard this year.  The Court can assist with the latter matter; it cannot assist with the former.

10. I publish my reasons for judgment and I make the orders that are set out therein. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 8 June 2017