FAINES & ALLPORT

[2020] FCCA 3469

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAINES & ALLPORT [2020] FCCA 3469

Catchwords:
FAMILY LAW – Parenting – whether there is an unacceptable risk of harm to the child – regarding a child who is almost four years old – where the mother has withheld the child – where the father has applied for a recovery order – where the father has made threatening text messages regarding the mother – satisfied there is an unacceptable risk of harm to the child in the father’s care.

Legislation:

Family Law Act 1975 (Cth)

Mental Health Act 2009 (SA)

Applicant: MR FAINES

Respondent: MS ALLPORT

File Number: ADC 5006 of 2020

Judgment of: Judge Young

Hearing date: 30 November 2020

Date of Last Submission: 30 November 2020

Delivered at: Darwin

Delivered on: 30 November 2020

REPRESENTATION

Counsel for the Applicant: Mr Anderson & Ms Purdie

Solicitors for the Applicant: Purdie Jordan Legal Pty Ltd

Counsel for the Respondent: Mr Lewis

Solicitors for the Respondent: The Family Law Project

ORDERS

1. That the child X born in 2016 live with the mother.

2. That the child spend time with the father from 1pm to 3.00pm on Tuesday and Saturdays with that time to be supervised by the paternal great grandmother Ms B.

3. That the child spend time with the father on her birthday in 2020 from 1.15pm to 3.15pm.

4. That all changeovers occur at the paternal great grandmother’s residence and the father is to attend at the residence no earlier than 1:15pm and to leave no later than 3.00pm and the mother is to attend no later than 1.00pm and no earlier than 3.15pm.

5. That the father be restrained and an injunction granted restraining the father from approaching or speaking to the mother.

6. That pursuant to s.11F of the Family Law Act 1975, the parties and the child X born in 2016 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Adelaide on 30 March 2020 at 10.00am, with the parties to telephone the Case Coordinator Child Dispute Services on 1300 352 000 to confirm their attendance NOTING that the family consultant is to have discretion as to how the parties attend.

7. That the parties be at liberty to inspect only and the parties’ legal representatives and the Independent Children’s Lawyer (if appointed) be at liberty to inspect and photocopy the document produced by the Department for Child Protection in response to the Notice of Risk filed in these proceedings NOTING THAT this information is confidential and cannot be disclosed to any other person or entity without an Order of this Court and NOTING penalties may apply pursuant to s.121 of the Family Law Act 1975 if the report is printed or published other than as directed in these proceedings

8. That pending further order, the parties’ legal representatives are restrained from providing a copy of the document to any other person.

9. That the matter be adjourned to 4 May 2021 at 2.15pm for interim hearing in relation to the time the child spends with the father with one hour allowed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 5006 of 2020

MR FAINES

Applicant

And

MS ALLPORT

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 matter concerning a child, X, who is four years old tomorrow.  It is not in dispute that when the parties separated early in 2019 the parties entered into a week-about arrangement with X, and since then X has been spending equal time with her mother and father.

3. The mother withheld the child around August or September this year, it is unclear exactly when.  The father has applied for a recovery order.  The mother responded by raising various allegations against the father, including an allegation that the child said to her around August “let’s kiss with tongues” and that the child went on to say that that is what she did with the father.

4. The mother said that she raised that matter with the Department of Child Protection (“DCP”), but there is no detailed reference to that in her affidavit and she does not say when she raised that with the DCP.

5. She says that on 5 November 2020, while the child and mother were bathing, the child apparently motioned as if to lick the mother’s vagina or pubic region and the mother said that she reported that to the DCP on 7 November 2020.

6. She apparently first sought legal advice in September 2020, though it is unclear what she sought legal advice about.  She also said that at a later time the child said to her that she did not want to speak to the father and was upset about the idea of going to see her father.

7. At paragraph 36 of the mother’s affidavit, she said that in September 2020 the child had spent time with the father and that when the child was returned by the father he smelt of alcohol and the child was upset.

8. The Court has received a response to the notice of risk from the Department of Child Protection as follows:

   The Department of Child Protection has had no investigative involvement in relation to X.

   Records indicate there are four reported concerns dating back to December 2016, the majority of which did not meet the threshold required for intervention and were assessed as notifier concern.

   The nature of reported concerns includes: Concerns in relations to the parents’ mental health and a relationship characterised by domestic violence (Dec 2016). Vague concerns that X said to her mother ‘let’s kiss with tongues’, however it was unclear where this originated and concerns the father may sleep naked and bathe with X (Sept 2020). Vague concerns X presented with a red anus and vagina upon return from father’s care and allegations X jokingly attempted lick the mother’s pubic hair when they were in the bath together. Allegations X said her father had done it to her (Nov 2020). Concerns the father has mental health issues and alcohol and substance misuse. Father was reportedly detained under the Mental Health Act. Allegations the father has threatened to take X interstate and hire a hitman to kill the mother. Allegations X has made disclosures of possible sexual abuse while in the father’s care (Nov 2020).

9. The response of DCP was that there were no grounds for intervention and there is no investigation underway. I might say, in relation to the allegations of the father being detained under the Mental Health Act, I was told that related to an allegation of something that happened in 2015. There was no other evidence about that.

10. The mother’s affidavit said that she had taken the child to a doctor who examined the child’s anus and vagina on the mother’s complaints that there was redness, and she was told that it may be nappy rash and there was no basis for any further investigation and certainly not invasive investigation.

11. All in all, the allegations raised by the mother, for the most part, appear to be without substance and there would be a proper basis for an order that the status quo resume.

12. However, the father has made remarks to his former partner, Ms C, in the middle of the year, the date is unclear.  In a series of text messages, apparently with his then girlfriend Ms C, he has said:

    I’m sorry.  I will kill Ms Allport, not myself, and her mum.  I would rather X in foster care.

13. And then a response from whoever it was: 

    She would go to next of kin. 

    Her mum, too.  Her mum’s the reason Ms Allport is twisted. 

14. And later:

    I’ve made it very clear to my mum, and Nana, that I will happily murder anyone who tries to take her from me or hurt her.  They laugh.  I’m like, no, no, I’m a hundred and ten per cent serious.  Not actually joking.

15. I am not satisfied there is not unacceptable risk in making an order that the child resume a fifty-fifty arrangement.  Those text messages, even if they were made in April, are chilling, particularly as the father has said he is not joking.

16. It is hardly surprising that the mother is frightened, as I suspect she is.  Long gone are the days when such threats could be dismissed as a joke or taken lightly, or a client advising their lawyer, “I didn’t mean it”. 

17. There will be an order, until further order, that the child live with the mother.  The child is to spend time with the father for two hours on Tuesday and Saturday, 1.15 pm until 3.15 pm, with the time to be supervised by the paternal great grandmother.  In addition, the child will spend time with the father from 1.15 pm until 3.15 pm tomorrow, her birthday.  Handover is to take place at the paternal great grandmother’s residence, and the father is to attend the residence no earlier than 1.15 pm and to leave no later than 3 pm.

18. The father is restrained and an injunction issued preventing him from approaching or speaking to the mother.  There will be an order for the parties to attend a child dispute conference on 30 March 2021 at 10 am and I will have an interim hearing after that on 4 May at 2.15 in relation to the child staying with her father.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 21 December 2020