Dacombe & Thornill

[2021] FCCA 1078

FEDERAL CIRCUIT COURT OF AUSTRALIA

Dacombe & Thornill [2021] FCCA 1078

File number(s):	PAC 2088 of 2021
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	7 May 2021
Catchwords:	FAMILY LAW – Interim Parenting – short form reasons – best interest of child – assessment of risk – child to live with father – child spend time with mother as agreed between the parents in writing.
Legislation:	Family Law Act 1975 (Cth) ss 69ZL, 69ZW
Number of paragraphs:	25
Date of hearing:	28, 29 April and 7 May 2021
Place:	Parramatta
Appearing for the Applicant:	Ms Khalil and Ms Sharpe
Solicitor for the Applicant:	Khalil Family Lawyers Pty Ltd
Appearing for the Respondent:	Ms Mansour
Solicitor  for the Respondent:	Fern Lawyers

ORDERS

PAC 2088 of 2021

BETWEEN:

MR DACOMBE

Applicant

AND:

MS THORNILL

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

7 MAY 2021

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1.The orders made on 29 April 2021 are discharged.

2.The child X born in 2012 shall live with the Applicant Father.

3.The child shall spend time with the Respondent Mother as agreed between the parents in writing.

4.The Respondent Mother is retrained by injunction from permitting or allowing the child to come in to contact with Mr B during any period of time the child spends with the Respondent Mother.

THE COURT FURTHER ORDERS THAT:

5.Pursuant to s.68L of the Family Law Act1975 an Independent Children’s Lawyer is appointed for X born in 2012 and request the Legal Aid Commission of NSW to provide such representation.

6.The parties are to provide to the Independent Children’s Lawyer, within 48 hours of receiving notice of their appointment, all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

7.The parties are to provide to the Independent Children’s Lawyer immediately upon notification of their appointment, a copy of any subpoena issued in the proceedings.

8.Pursuant to s.69ZW(1) the Court orders and directs the Department of Communities and Justice (NSW) and Department of Children, Youth Justice and Multicultural Affairs (QLD) and NSW Police Service and QLD Police Service (“the agency”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Act Regulations) to provide to this Court within 14 days with all documents and information held by them about one or more of the following:

(a)Any notification to the agency of suspected abuse of or by the following:

(i)Mr Dacombe born in 1988;

(ii)Ms Thornill born in 1990;

(iii)X born in 2012;

(iv)Mr B born in 1980; and

(v)Ms C (date of birth unknown);

or any of them.

(b)Any notification of suspected family violence affecting the above persons or any of them;

(c)Any assessment by the agency of investigations into a notification of suspected abuse or family violence and/or the findings and outcomes of those investigations;

(d)Any reports commissioned by the agency in the course of investigating a notification;

and provided that no document need be provided which identifies directly, indirectly or by reference the identity of any notifier or witness (unless a party to the proceedings or a Police Officer)and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier or witness is to be blanked out or otherwise removed or obliterated from the document/s so produced.

NOTE: For the purpose of this order the terms “abuse” and “family violence” have the meanings given by sections 4 and 4AB respectively of the Family Law Act 1975 being:

ABUSE

"abuse " , in relation to a child, means:

(a) an assault, including a sexual assault, of the child; or

(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

(d) serious neglect of the child.

FAMILY VIOLENCE

(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to):

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or

(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

9.Neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Department of Communities and Justice /NSW Police Department without the Court’s leave.

10.The parties have liberty to have the matter restored to the list on 24 hours’ notice.

11.The matter is listed for mention at 9:30am on 27 July 2021, with the parties and their legal representatives to appear by telephone on that occasion.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)

JUDGE OBRADOVIC

1. These are short form reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”).

2. On 21 April 2021 the father filed an application in the Parramatta Registry of the Federal Circuit Court seeking urgent interim relief for a recovery order in respect of the parties’ child, X, born in 2012. On 21 April 2021, the same day that the father commenced proceedings, the mother independently filed an application seeking interim parenting orders in the Sydney Registry of the Federal Circuit Court; that matter being before Judge Kemp with a first return date of 17 May 2021.

3. The father’s application was listed at short notice and was first before the Court on 28 April 2021 with the Court hearing the father’s urgent application and the mother’s response to it on that occasion. Judgment was to be delivered at 2pm on 29 April 2021.

4. Between the hearing of the interim application and the delivery of judgment on the following day, the Court was able to secure an urgent child inclusive conference with a family consultant for the parties for 9am on 6 May 2021. The Court also, before delivery of judgment sought to invite the parties to make further submissions as to what time might be appropriate for X to spend with each of his parents in circumstances where he might live with one or the other of his parents, a matter which had not specifically been addressed when the matter came on for urgent hearing on 28 April 2021. Given the opportunity for the parties and X to attend the child inclusive conference on 6 May 2021, the interim hearing was adjourned part heard and for the purposes of hearing further submissions upon the release of the memorandum to 2:15pm on 7 May 2021.

5. The Court has earlier this afternoon released the memorandum and the matter was adjourned for a period of about 30 minutes. During that adjourned period, the mother has left the Court building not being satisfied with the advice that she was provided by her legal representatives who immediately sought to withdraw from the proceedings.

6. The Court has, as a result of the matters in the memorandum, significant concerns for X’s wellbeing particularly noting the matters about Mr B, the mother’s partner, which are referred to in that memorandum as well as the father’s evidence in these proceedings.

7. The father has this afternoon given oral evidence about X’s whereabouts. Contrary to the orders which the Court made on 29 April 2021, the child has not been returned to the mother’s care before school this morning. The Court is satisfied that the father has a reasonable excuse in relation to not returning the child to the mother’s care in accordance with the orders of this Court in circumstances where the child was not well this morning and the father took him to see a medical practitioner and obtained a medical certificate in respect of his non-attendance at school. Furthermore, the father communicated with the mother via email and SMS in relation to the child’s absence from school and the parties had arranged for the mother to pick the child up from the father’s care at the conclusion of these proceedings this afternoon.

8. Given that the mother has left the Court building, the Court has, notwithstanding the father’s assurance that the child is safe with his partner, significant concerns that the mother and Mr B may attend at the father’s residence for the purpose of taking X into the mother’s care. The Court, therefore, immediately vacates the orders made on 29 April 2021 and makes an interim order forthwith for the child to live with the father and spend time with the mother as agreed between the parents in writing.

9. In that regard, the Court notes that there are a few agreed facts between the parties, namely:

   (a)The parents were in a relationship between 2009 and 2013.

   (b)There is one child of the relationship, X, who, was born in 2012. X was approximately one year old when the parties separated. 

   (c)After the parties’ separation X lived with the mother and spent time with the father. 

   (d)From September 2018 X had been living with the father and spending time with the mother. 

   (e)The parties had agreed that X would spend time with the mother from 11 April 2021 to 19 April 2021.

   (f)At the conclusion of that agreed period of time the mother retained X in her care contrary to the parties’ agreement.

   (g)X did not attend school between 20 April 2021 and 28 April 2021.

   (h)He is currently enrolled at D School.

   (i)The mother is in a relationship with Mr B and they have two children together, E and F. The mother and Mr B and their children live together in Suburb G. 

   (j)The father is married to Ms C and they have two children together, H and J, and Ms C has a child from an earlier relationship, K.

   (k)The father and Ms C had lived together with H, J, K and X up until 11 April 2021 when X came into the mother’s care and was retained by the mother following that agreed period of time on 19 April 2021. 

10. The child-inclusive conference memorandum which was released to the parties earlier today, which the Court will mark as exhibit 1 in the proceedings, makes a number of recommendations in relation to X and includes, at paragraph 81, the following recommendation:

    Based on the information available to this assessment it appears that the least detrimental alternative for X’s living arrangement in the interim would be to live with Mr Dacombe.

11. The basis for the recommendation is explained in the memorandum. The family consultant identifies Mr B and his possible behaviours towards X as a significant concern.  So much so that she has recommended that the child not come into contact with Mr B until the Court has had the opportunity of viewing police and child protection authorities’ material.

12. The father in his evidence says that in September 2018, where X came to live with him, it was done as a result of the Queensland Police contacting him and advising that Mr B had been arrested as a result of assaulting X.

13. The mother says that she had agreed for X to live with the father for a period of six months but that the father had later changed his mind about X being returned to her full-time care. The mother says to the family consultant that the reason the child came to live with the father is because the father had lied and manipulated the situation and that the parties had agreed for X to stay with the father when she and Mr B and their children decided to move to Queensland after a home invasion in Sydney.

14. The mother does not in her evidence address whether or not Mr B assaulted the child as the father alleged he was told by the Queensland Police.

15. The parties’ evidence as to how X came to live with the father in September 2018 is at significant disagreement.

16. Indeed, the parties seem to be at significant disagreement about most of the matters concerning their relationship, their interactions post-separation and X’s care arrangement. They are at significant odds in relation to many matters which may be easily corroborated by independent evidence, for example, from police records and other appropriate records from child protection authorities.

17. Neither party has to date sought to issue any subpoenas nor has the Court been invited to make an order pursuant to section 69ZW of the Act.

18. Given the matters raised in the memorandum, as well as the parties’ evidence, it is appropriate for a section 69ZW order to be made requesting both the Department of Communities and Justice in New South Wales, New South Wales Police, Queensland Police, and the relevant child protection authorities in Queensland to provide information to the Court in relation to X, the parties and Mr B and Ms C. Such an order, therefore, is also, forthwith, made.

19. It is clear from the child inclusive conference memorandum, as well as the evidence in the proceedings, particularly the father’s material, that X is suffering as a result of the parental conflict and that he does not want to make any decision about his living arrangement.  He is, after all, only a little boy who has been placed at significant pressure, it appears, by both of his parents.

20. The material contained in the mother’s affidavit contains text messages between the child and the father which are clearly an inappropriate way for the father to communicate with the child. The content of the messages place undue pressure on the child in relation to a whole lot of issues that the child should not have to deal with. 

21. It is important that the father take these comments on board and immediately stop communicating with the child in such a manner. If he is doing so, he must stop putting pressure on the child to tell him information in relation to what occurs at the mother’s residence and about the child’s relationship with the mother and Mr B.

22. Certainly, X has a warm and loving relationship with both his father and his mother. It seems he also has a warm and loving relationship with the father’s partner, Ms C.

23. The Court is satisfied, based on the evidence presently before it, and based on a risk assessment exercise, that it is in X’s best interest that he presently live with the father and spend time with the mother in accordance with an agreement between the parties but that any time that X is to spend with the mother be done in the absence of Mr B, that is, that there be a restraint on the mother in spending time with the child in the presence of Mr B.

24. The Court is also minded to appoint an Independent Children’s Lawyer to represent X’s best interest particularly in circumstances where the mother has disengaged from the proceedings in an abrupt manner this afternoon. 

25. If events which the Court has concerns about eventuate this afternoon, the father will no doubt be making an urgent application for other relief to the Court as a matter of priority. That application may be brought at short notice if and when required.

26          I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated:       21 May 2021