Beirne and Merchant

[2019] FCCA 3799

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEIRNE & MERCHANT [2019] FCCA 3799

Catchwords:
FAMILY LAW – Parenting – where father is charged with aggravated assault and assault with weapon on the mother – where children are living with father – where father is unable to provide stable housing – where mother is able to provide stable housing – best interests of the child – children ordered to live with mother – recovery order.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS BEIRNE

Respondent: MR MERCHANT

File Number: DNC 625 of 2019

Judgment of: Judge Young

Hearing date: 17 December 2019

Date of Last Submission: 17 December 2019

Delivered at: Darwin

Delivered on: 17 December 2019

REPRESENTATION

Counsel for the Applicant: Ms Cook

Solicitors for the Applicant: Northern Territory Legal Aid Commission

Counsel for the Respondent: In person

Solicitors for the Respondent: In person

UPON NOTING

That an interpreter in Language A will be required to assist the parties at the child inclusive conference on … 2020 and the next court mention on … 2020 if the father is still unrepresented.

ORDERS

1. That the children [V] born 2005, [W] born 2006, [X] born 2012, [Y] born 2014 and [Z] born 2018 be returned to the mother today at 5.00pm at the Suburb B Police Station failing which a recovery order do issue.

2. That the children live with the mother.

3. The children spend time with the father at such time as agreed between the parties.

4. That the father file and serve a Response, affidavit in support and notice of risk within 28 days.

5. That pursuant to s.11F of the Family Law Act 1975, the parties and the children [V] born  2005, [W] born 2006, [X] born 2012, [Y] born 2014 and [Z] born 2018 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Darwin on … 2020 at 9.00am, with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance.

6. 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.

7. That the matter be adjourned to … 2020 at 9.30am for further consideration.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 625 of 2019

MS BEIRNE

Applicant

And

MR MERCHANT

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 five children: [Z], who is one; [Y], who is five; [X], who is seven; [W], who is 13; and [V], who is 14. The parties separated on 28 August 2019, when, on both versions, having heard at length from Mr Merchant today orally and on the mother’s affidavit material, an assault took place in the middle of the night, said to be 28 August, at the home the parties shared.

3. The mother says that she was assaulted by the father who attempted to strangle her in the middle of the night after some argument about a telephone. The father also says there was an argument about a telephone but he says the mother assaulted him and he ran away and she was injured while she pursued him outside the house. I do not know where the truth is in all of that. The police, however, have charged Mr Merchant with a number of counts of assault arising out of the events of 28 August, including an aggravated assault and assault using a weapon, namely a rolling pin, where the mother alleges that Mr Merchant attempted to throttle or strangle her using said rolling pin.

4. The father says that the mother is simply telling lies.

5. I do not have to decide about that today. What I have to decide is what is in the best interests of the children. When the mother left the former matrimonial home the children stayed in the home with the father. She has now made an application that the children live with her. It is apparent that Mr Merchant has cancelled, or rather given notice, perhaps, on the lease at the home that he shared with the mother and that his tenancy expires on 24 January 2020. 

6. I asked the father where he was going to live with the children and it was clear enough from his answer, which was vague, that he had no particular plans about where he was going to live with the children. As far as I can see, there is no real indication that the children are going to be properly housed as from 24 January 2020.

7. The mother, meanwhile, is living in accommodation provided by, I understand, a women’s shelter, in a three-bedroom house in the suburbs. She has at least some security of housing for the future.

8. The mother alleges that there is a long history of family violence in this matter. The father says that the mother is simply lying. I cannot make any finding about that but there are two matters that I am satisfied are correct: the first is that the father has been charged with aggravated assault after the police were called to the former matrimonial home on 28 August and secondly, I am satisfied that the mother has secure housing for the children and the father does not have a prospect of secure housing. Having regard to those matters, I propose to make an order that until further order, the children live with the mother. Furthermore, I propose to make an order for a recovery order. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  8 January 2020