Hammons & Hammons

[2021] FCCA 1285

FEDERAL CIRCUIT COURT OF AUSTRALIA

Hammons & Hammons [2021] FCCA 1285

File number:	DNC 657 of 2020
Judgment of:	JUDGE YOUNG
Date of judgment:	5 May 2021
Catchwords:	FAMILY LAW – parenting – interim hearing – concerning four children who are fifteen, twelve, ten and five years old – where significant conflict exists between the parents – where the children have experienced emotional harm – where the father is believed to be responsible for causing the emotional harm – where there is limited evidence before the Court – Court satisfied it is appropriate to adopt the recommendations of the Family Consultant
Legislation:	Family Law Act 1975 (Cth) ss 11F, 69ZW
Number of paragraphs:	11
Date of hearing:	5 May 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Franz of Darwin Family Law
The Respondent:	Appearing on his own behalf

ORDERS

DNC 657 of 2020

BETWEEN:

MS HAMMONS

Applicant

AND:

MR HAMMONS

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	5 MAY 2021

THE COURT ORDERS THAT:

1.That the parents facilitate and ensure that the child X born in 2006 continue her attendance at counselling at B Counselling.

2.That changeover occur at school on school days and in a public place on non-school days with the parties not to communicate with each other.

3.That the father enrol and complete the “Circle of Security” program at B Counselling and provide a proof of completion certificate to the other parent.

4.That pursuant to section 69ZW of the Family Law Act 1975 the Territory Families, Housing and Communities provide the Court with the following documents or information:

(a)copies of any notifications regarding abuse allegations arising or relating to the children Y born in 2006, Z born in 2008, X born in 2010 and W born in 2016;

(b)any assessments or investigations into such abuse allegations;

(c)the outcome or findings of any such assessments and investigations; and

(d)copies of any reports received by Territory Families, Housing and Communities in the course of investigating any such notifications.

5.That neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Territory Families, Housing and Communities without the Courts leave.

6.That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship Y born in 2006, Z born in 2008, X born in 2010 and Z born in 2016 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released on a date to be advised.

7.That the family report to deal with the following matters:

(a)any views expressed by the said child and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

(b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

8.That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

9.That the parties are to confirm their attendance to the Case Co-ordinator Child Dispute Services by email at [email protected] or alternately call 1300 352 000 fourteen days prior to the date of the interview and in the event such confirmation is not received the interviews will be cancelled.

10.That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

11.That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

(a)a Children’s Court;

(b)a child protection authority;

(c)a State or Territory legal aid authority; and

(d)a convener of any legal dispute resolution conference.

NOTING:

A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 11 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

12.That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

13.That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

14.That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served on prior to the family report interviews as follows:

(a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

(b)annexing such material as is considered relevant, with

(c)the affidavit to be paginated, indexed and exhibits tagged.

15.That the proceedings are adjourned to the trial call-over list on 1 October 2021 at 2.15pm.

16.That the parties no less than seven (7) days prior to the call-over date provide to the Court:

(a)a brief Summary of Argument including Minute of Orders sought; and

(b)a trial plan indicating estimated length of trial sought and witnesses relied upon at trial.

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 Hammons & Hammons  is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an interim parenting matter concerning four children: Y, Z, X and W. The three eldest children currently live with their parents on a week about arrangement. The youngest, W, spends two nights each week with his father. This matter is a high conflict matter where each parent is making allegations about the parenting capacity of the other.

2. Leaving aside those allegations, what is clear is that there are indications that the children have been exposed to the conflict between the parents. For the first time at the interim hearing today I was informed that following a notification to Territory Families an investigation commenced on 3 December 2020 and concluded on 31 March 2021. Territory Families made a finding that X and Y experienced detrimental emotional harm with the father being the person believed responsible. I only have a summary of that finding. I do not have the detailed notes of the investigation and conclusions of the Territory Families caseworker. An order pursuant to section 69ZW of the Family Law Act 1975 (Cth) (the Act) has not been sought at any time.  I was not aware that there was an investigation underway.

3. The current hearing is proceeding on the basis of very limited information. I do not propose to list the matter for a further interim hearing at this point. If I make an order pursuant to section 69ZW of the Act and material is produced that supports the mother’s present proposal that the children’s (particularly X and W) time with the father be reduced, then there is no reason why the mother cannot make an application in a case.

4. Part of the difficulty in this matter is that the Child-Inclusive Conference Memorandum pursuant to section 11F of the Act recorded that the older children wish for the current arrangement to continue – that is, a week about arrangement. The Family Consultant recorded concerns about X’s mental health, including an observation that she had expressed suicidal thoughts. However, the Family Consultant gave weight to each of the wishes of the children, including X who is 10 years old. X expressed a desire to continue with the current living arrangements which would see her spending time with each parent in line with the time arrangements of her two older brothers. I am satisfied X’s two older brothers are a very significant protective factor in her life.

5. W did not, having regard to his age of five, express particularly clear thoughts about what arrangements he wished.  The family consultant recommended that the living arrangements of the three older children remain the same and that W’s living arrangements be changed so that he spend a block of four nights a week with the father when his older siblings are also with the father.  It should be noted that Y and Z both expressed a strong view that W should be spending time with them in the same arrangements.  X was a little more ambivalent about that but I consider the views of the older children about that factor should be taken into account.

6. If this were the only material before the Court then there would be no particular difficulty about the matter.  However, the Territory Families material, whilst sparse, is very concerning.  The father expressed surprise at the Territory Families’ conclusion and asserted that it was not justified.  Without knowing the details of the allegations, the investigations, and what was said, I do not feel able to form any view about that.  I think what is appropriate at this stage is that I adopt the recommendations of the Family Consultant.

7. I will make an order pursuant to section 69ZW of the Act which will see the production to the Court of the details of the Territory Families file and then that can be considered in more detail.

8. I also propose to make an order for a Family Report which will consider these issues in more detail. That will be released on a date to be advised. 

9. I also propose to make an order that the father enrol and complete the “Circles of Security” B Counselling parenting program.  The father is to provide notification to the mother’s solicitor that he has enrolled in that course and he is to provide notification to her when it is completed.

10. There will be an order that both parties facilitate and ensure that X continues with her counselling at B Counselling. 

11. I propose to put the matter into a trial call-over list on 1 October 2021 at 2:15pm.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       8 June 2021