Docker & Tilley

[2007] FamCA 563

FAMILY COURT OF AUSTRALIA

DOCKER & TILLEY [2007] FamCA 563

FAMILY LAW - CHILD ABUSE - Risk of abuse

FAMILY LAW - CHILDREN - With whom a child spends time - Interim

APPLICANT: MS DOCKER

RESPONDENT: MR TILLEY

FILE NUMBER: BRC 6664 of 2007

DATE DELIVERED: 7 June 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: O'Reilly J

HEARING DATE: 7 June 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Walker-Munro

SOLICITOR FOR THE RESPONDENT: The respondent appeared on his own behalf

Orders

IT IS ORDERED

1. An independent children’s lawyer be appointed for the children, the elder daughter, born on … February 1998, the son, born on … May 2000 and the younger daughter born on … February 2005 and Legal Aid Queensland is requested to arrange such representation.

2. The independent children’s lawyer may peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Brisbane.

AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER

1. The orders made on 25 January 2007 concerning the children are suspended.

1. The children spend time with the father for two hours on each Saturday at the X Contact Centre or the Y Contact Centre whichever sooner may be available.

2. The parties undertake all necessary intake procedures at those contact centres and share all applicable costs and charges.

IT IS FURTHER ORDERED

1. The matter be adjourned to a Judicial Duty List at 10am on 16 August 2007.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6664 of 2007

MS DOCKER

Applicant

And

MR TILLEY

Respondent

REASONS FOR JUDGMENT

1. I have considered the submissions of the father, who appeared in person and Ms Munro-Walker, duty lawyer for the mother, as to whether in the interim until the independent children's lawyer whom I propose to appoint can obtain a family report the consent orders made in the Federal Magistrates Court on 25 January 2007 should continue or be set aside.

2. I am persuaded that until the matters the subject of allegations in relation to the safety of the children can be investigated I ought not allow those orders to continue and should ensure that between now and then the time the children spend with the father be supervised weekly.  The closest contact centre to the parties’ residences is the X Contact Centre and I will thus order that until further order the children spend two hours on each Saturday with the father at the X Contact Centre.

3. My particular reasons for concern in relation to the safety of the children as leading to that order and serving as my reasons for it include the following: 

(1)A report by Queensland Health of reasonable suspicion of child abuse and neglect being provided apparently by Dr D, Senior Medical Officer, Child and Youth Mental Health Service, R Hospital which is annexure C to the mother's affidavit providing as follows:

[The elder daughter] is experiencing panic attacks.  She describes being held hostage in the house with father outside screaming he will burn the house down.  She tells him of driving the car into the house.  She tells of a recent altercation between father and his new partner where dad tore the phone apart.  The partner took the kids in the car screaming and crying while she drove erratically making them feel dizzy and sick while the father threatened to drive himself into a pole.  The children are clearly traumatised and anxious, etc.

Dr D apparently made a notification to the Department of Child Safety which resulted in an investigation and action set out in exhibit 1, namely a finding that the children, the elder daughter and son, have been subject to emotional harm with the father being identified as the person responsible and the third child, the younger daughter, being identified as at risk of suffering emotional harm by the father.

The letter exhibit 1 goes on to provide that at the father's request the X Child Safety Review Service Centre has made a decision to conduct a senior practitioner case review which is currently occurring and expects to give the father a response within 14 days of the date of that letter which is 6 June 2007, yesterday.  I should add at this stage that the children's ages are elder daughter, 9 years; son, 7 years and younger daughter 2 years.

(2)The mother has caused to be filed in the Court on 31 May 2007 a notice of child abuse or family violence which the father acknowledges has been served on him alleging at item 14 an act of family violence obviously on information from the children which relates to the incident described by Dr D, and then at item 18 alleges that the children were involved in an erratic car chase while the father and his partner communicated via cell phones and the children were witness to a violent outburst which culminated with the smashing of a mobile phone, the children then being forcibly removed from the father but soon returned by the father's partner, who is Ms F, present in Court today, and an allegation that the children witnessed loud aggression at various and numerous times over a particular weekend.

From the description of that event it is plain that it may well be one and the same event as described by Dr D, however, of more concern on the next page of the notice (which is an added single A4 page numbered in biro 18.5) appears:

The children were informed and directly witnessed father […] threaten to kill himself. 

1. As I have explained to the father, until investigated allegations are only that.  It may well be that there is no substance in the information the children have given the mother.  It may well be that the mother is making it up.  That is yet to be investigated and determined.  However, as I explained to the father during argument my role at this stage having regard to the serious nature of the allegations is to ensure the children's safety at least until the independent children's lawyer can obtain a family report and interviews with the children so that the Court can be informed by that mechanism by the children themselves as to whether they have concerns or whether in their view the mother may be making all this up.  At this stage I just don't know.  However, in the meantime as my obligation is to protect the children, I will make the order for supervised time as I have indicated each Saturday for two hours.

2. I publish my reasons and I would request please, Mr Court Officer, that they be asked for on the urgent basis so that I can send them to Legal Aid as quickly as possible for the information of the independent children's lawyer.  I would like them today please or no later than tomorrow, if possible.

RECORDED  :  NOT TRANSCRIBED

ORDERS DELIVERED

1. I note that Mr Tilley has stated to me that he doesn't propose to attend at the contact centres, but that really is a matter for him as the father. 

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Reilly 

Associate: 

Date: 

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DOCKER & TILLEY