Desmond & Yardley

Case [2020] FamCA 1062

FAMILY COURT OF AUSTRALIA

Desmond & Yardley [2020] FamCA 1062

File number(s): NCC 2504 of 2016
Judgment of: GILL J
Date of judgment: 11 December 2020
Catchwords: FAMILY LAW – children - interim proceedings – unacceptable risk – where both parties alleges that the other poses an unacceptable risk to the child – where there are risks in both households - whether appropriate protections can be put into place to allow the child to have the benefits of relationship with the father without exposure to unacceptable risk – orders for the child to spend time with the father
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 65DAA
Cases cited:

Johnson & Page [2007] FamCA 1235

Jollie & Dysart [2014] FamCAFC

M v M (1988) 166 CLR 69

N and S and the Separate Representative (1996) FLC 92-655

Phillips & Hansford [2019] FamCAFC 165

SS & AH [2010] FamCAFC 13
Number of paragraphs: 79
Date of hearing: 9 December 2020
Place: Canberra
Counsel for the Applicant: Ms Davis
Solicitor for the Applicant: Joplin Lawyers
Solicitor for the Respondent: Bowral Legal
Solicitor for the Other: Legal Aid ACT

ORDERS

NCC 2504 of 2016
BETWEEN:

MR DESMOND

Applicant
AND:

MS YARDLEY

Respondent

LEGAL AID ACT

Independent Children’s Lawyer

ORDER MADE BY:

GILL J

DATE OF ORDER:

11 DECEMBER 2020

THE COURT ORDERS, UNTIL FURTHER ORDER THAT:

1.Orders 1, 2, 3, 4 and 5 of the Consent Orders of 7 March 2019 made by Judge Tonkin are hereby discharged.

2.The child, X, born … 2012 shall spend time with her father as follows, unless otherwise agreed in writing:

(a)commencing 19 December 2020:

(i)on the third Saturday of each month from 11:00 am until 5:00 pm, with the mother to deliver and the father to collect X from B Town Police Station at the commencement of time and the father to deliver and the mother to collect X from B Town Police Station at the conclusion of time; and

(ii)on the Sunday that immediately follows the third Saturday of each month from 9:00 am until 3:00 pm, with the mother to deliver and the father to collect X from B Town Police Station at the commencement of time and the father to deliver and the mother to collect X from B Town Police Station at the conclusion of time.

3.The mother and the father are hereby restrained by injunction from:

(a)Insulting, belittling, degrading, rebuking, abusing or otherwise denigrating the other parent or a member of their immediate household in the presence or hearing of X and from permitting any other person to do so;

(b)Physically disciplining or striking X or allowing any other person to do so; and

(c)The father is restrained from bringing X into contact with

(i)The grandfather, Mr C Desmond;

(ii)Y; and

(iii)Ms E.  

4.The parties are at liberty to re-list this matter at short notice.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may…

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AGLC
Desmond & Yardley [2020] FamCA 1062
Case
[2020] FamCA 1062
Decision Date

CaseChat Overview and Summary

In *Desmond & Yardley*, Gill J of the Family Court of Australia considered an application concerning the time a child, X, would spend with her father. Both parents alleged that the other posed an unacceptable risk to X, with evidence presented suggesting risks existed in both households. The central dispute revolved around whether appropriate protections could be implemented to allow X to maintain a relationship with her father without being exposed to unacceptable risk.

The court was required to determine the nature and extent of the risks presented by each parent and their respective households. Specifically, the court had to assess whether the allegations of risk were substantiated and, if so, what measures, if any, could mitigate those risks to an acceptable level. This involved evaluating the evidence of past interventions by Family and Community Services, instances of violence within the mother's household, and concerns regarding sexualised behaviour by a third party towards children in the mother's care.

Gill J's reasoning focused on balancing the child's right to a relationship with both parents against the paramount consideration of her safety and wellbeing. The court acknowledged the risks identified in the mother's household, including past involvement of Family and Community Services, the presence of a brother with a history of violence, and concerning behaviour by the brother's son. However, the court also considered the mother's efforts to address these issues and her willingness to engage with supports. The court ultimately found that while risks existed, it was possible to implement orders that would allow for supervised time with the father, thereby facilitating the child's relationship with him while mitigating unacceptable risks.

The court ordered that the previous consent orders be discharged. Until further order, X was to spend time with her father on the third Saturday and the following Sunday of each month, with all handovers to occur at B Town Police Station. The parents were enjoined from denigrating the other parent or allowing physical discipline of X. Crucially, the father was restrained from bringing X into contact with his grandfather, Mr C Desmond, and two other individuals, Y and Ms E. The parties were granted liberty to relist the matter on short notice.

Orders

Orders of the court

THE COURT ORDERS, UNTIL FURTHER ORDER THAT:

1. Orders 1, 2, 3, 4 and 5 of the Consent Orders of 7 March 2019 made by Judge Tonkin are hereby discharged.

2. The child, X, born … 2012 shall spend time with her father as follows, unless otherwise agreed in writing:

(a) commencing 19 December 2020:

(i) on the third Saturday of each month from 11:00 am until 5:00 pm, with the mother to deliver and the father to collect X from B Town Police Station at the commencement of time and the father to deliver and the mother to collect X from B Town Police Station at the conclusion of time; and

(ii) on the Sunday that immediately follows the third Saturday of each month from 9:00 am until 3:00 pm, with the mother to deliver and the father to collect X from B Town Police Station at the commencement of time and the father to deliver and the mother to collect X from B Town Police Station at the conclusion of time.

3. The mother and the father are hereby restrained by injunction from:

(a) Insulting, belittling, degrading, rebuking, abusing or otherwise denigrating the other parent or a member of their immediate household in the presence or hearing of X and from permitting any other person to do so;

(b) Physically disciplining or striking X or allowing any other person to do so; and

(c) The father is restrained from bringing X into contact with

(i) The grandfather, Mr C Desmond;

(ii) Y; and

(iii) Ms E.

4. The parties are at liberty to re-list this matter at short notice.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

In this case, both parties identified material suggestive of risk to X in the other’s household.Evidence regarding risk in relation to the mother The father identified that risks posed by the mother had become apparent from material produced on subpoena. The material produced on subpoena indicated that there has been significant involvement by Family and Community Services (“FaCS”) with the mother and X. FaCS removed children from the mother’s care for a period of about five weeks in September 2017. Page 1 of the tender bundle refers to the return of the children to the mother, correspondence at May 2018 noting that FaCS casework had ceased but that supports were in place. The mother accepts that at times the children have been at risk in her care, but asserts that she has “worked very hard to address these issues” and that she is willing to continue to engage with supports. From August 2019 until October 2020, the mother’s brother, Mr H, lived in the mother’s home. The relationship has involved incidences of serious violence, and involved the mother and Mr H being jointly criminally charged in relation to an attendance at their cousin’s home. The mother says that Mr H would not leave her home at her request and that eventually her father moved into the home forcing Mr H out. Her father remains in the home to offer the mother support. The mother also accepts that Mr H’s son, J, who attended at her home, behaved in a manner toward the mother’s children that she described as “concerning.” At page 316 of the tender bundle, J is reported as behaving in a sexualised manner toward the females in the house, and in a violent manner toward X. In September 2018, officers from FaCS asserted to the mother than a close associate of hers, Mr K, presented a sexual risk to children. It is uncontroversial that leading up to that time Mr K had extensive involvement in and contact with the mother’s household. Pages 272ff contain the FaCS records about the interaction. Although the records redacted in part references to “[Mr K]” not all were redacted. It is unclear why the Department redacted the references as context indicates that Mr K was not a person who has made a notification in terms of s 69ZW of the Act. At the initial attendance of the FaCS workers on 24 September 2018, the mother indicated that she did not accept that Mr K was a risk, but that she would exclude him form the home. A further attendance occurred on 25 September 2018. Although FaCS asserted that they had substantiated abuse by Mr K (whatever that may mean), the mother did not accept that he presented a risk, he having been intimately involved in the raising of the children from time to time. Despite this there is no indication that the mother allowed Mr K to have any contact with the children, a position that firmed when the mother and her current partner, who were then separated, reconciled in October 2018. At p 285 of the tender bundle L Services notes on 20 September 2018 that the mother is acting protectively re sex abuse risk. This appears to predate the FaCS attendance regarding Mr K, but was submitted to correlate to that intervention. This remains unclear.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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