HENRICK & HEWETT

[2019] FCCA 2883

FEDERAL CIRCUIT COURT OF AUSTRALIA

HENRICK & HEWETT [2019] FCCA 2883

Catchwords:
FAMILY LAW – Parenting – interim orders – application to extend number of supervisors – where supervisor proposed by the mother did not disclose relevant incident – where incident involved serious alcohol abuse and threat of violence – best interests of the children – where children are Aboriginal children – proposal of father adopted.

Legislation:

Family Law Act 1975 (Cth) s.60CC

Applicant: MR HENRICK

Respondent: MS HEWETT

File Number: DNC 79 of 2019

Judgment of: Judge Young

Hearing date: 13 September 2019

Date of Last Submission: 13 September 2019

Delivered at: Darwin

Delivered on: 13 September 2019

REPRESENTATION

Counsel for the Applicant: Ms Palavra

Solicitors for the Applicant: Northern Territory Legal Aid Commission

Counsel for the Respondent: Ms Papp

Solicitors for the Respondent: Northern Australian Aboriginal Family Legal Service

THE COURT ORDERS UNTIL FURTHER ORDER:

Arrangements for the children

1. The children, X born … 2013 and Y born … 2015 spend time with the Respondent Mother as follows:

   (a)Supervised once per month at Save the Children in Town F as directed by that organisation;

   (b)Each alternate Saturday from 8:00 am to 12:00 noon commencing from 21 September 2019.

2. The Respondent Mother’s time with the children in Order 1(b) be supervised by either MR A in accordance with his Undertaking filed with the Court on 9 September 2019 (“the supervisor”) AND who will be present both physically and in hearing range at all times the children are spending time with the Respondent Mother.

3. That MR A will end the time if the Respondent Mother is intoxicated, drug affected or abusive towards the children, MR A, his wife, Ms E or any other family members.

4. That the supervisor shall collect and return the children at the front gate of the applicant father’s home.

Father telling mother of other of important things about the children

1. The Applicant Father will make sure to tell the Respondent Mother, as soon as possible, of any important things about the children such as medical and other emergencies and include information about the children’s treating doctors, hospitalisation, medication or other treatment and other similar matters.

2. The Applicant Father will also give the Respondent Mother information about the schools that the children are going to and how they are going at school from time to time.

What cannot be done

1. The Applicant Father and Respondent Mother are not to speak badly and are stopped from speaking badly about each other or their family to the children, in front of them or in their hearing and will not let anyone do this.

2. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship X born … 2013 and Y born … 2015 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 in Darwin such report to be released by 28 February 2020.

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

   (a)any views expressed by the said children 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.

4. 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.

5. That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

6. 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.

7. 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 13 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.

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

2. 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).

3. 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 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.

4. That the matter is listed for trial on 16 and 17 June 2020 at 10.00am at the Federal Circuit Court, Darwin (allowing 2 days).

5. That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness complying with rule 15.28 of the Federal Circuit Court Rules 2001 intended to be relied upon at trial no later than 28 days prior to the trial.

6. That on or before 28 days prior to trial the applicant pay the setting down fee and the respondent pay such daily hearing fee as required for day 2 pursuant to the Family Law (Fees) Regulation 2012.

7. That at least 48 hours prior to trial, Counsel for each party and the Independent Children’s Lawyer file and serve a Case Outline document which clearly identifies the following:

   (a)a list of the material relied upon;

   (b)a brief chronology listing significant events;

   (c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (section 60CC factors);

   (d)a list of other contentions relevant to the decision;

   (e)whether the presumption of equal shared parental responsibility applies (section 61DA), and if not the contentions relied upon;

   (f)a list of the considerations relevant to considerations of equal and substantial parenting time (section 65DAA);

   (g)a list of other relevant considerations (including the relevant section number) (for example, sections 60CG, 61F, 65DAB and/or 65DAC); and

   (h)the actual orders sought.

8. That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court.

9. That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 14 days before the commencement of the hearing.

10. That in the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.

11. That the matter be listed on the 17 October 2019 at 9.30am for consideration of the appointment of an Independent Children’s Lawyer.

12. That the matter be adjourned to 23 March 2020 at 11.00am for mention.

THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 79 of 2019

MR HENRICK

Applicant

And

MS HEWETT

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 an interim parenting matter about two children, X who is five and Y who is four years old. Both children and both parents are Aboriginal people. The background of the matter figures largely about what appears to be clear evidence of the mother’s history of alcohol abuse and associated problems. It appears to be common ground that Territory Families intervened in about September 2018 and the children were, apparently by agreement of the mother, removed from the mother’s care and placed with the father. The reason for that appears to have been concerns about the mother’s misuse of alcohol, and perhaps other drugs, as well as instability in housing. In other words, the children were in need of care. The father was available to care for the children. The father has deposed that he himself was a drinker and a user of “ganja” as he describes it but he said that he gave that up seven years ago and says he is abstinent and employed.

3. The mother’s own affidavit sets out in some detail her history related to the misuse of alcohol. She says that she is on the Banned Drinkers Register. As I understand it, a person’s name is put on that register once he or she is found guilty of various alcohol related offences. She goes on to say that in April 2019 she saw the father in Woolworths in Town F and threatened him and that constituted a breach of an existing domestic violence order or a non-contact order, as I understand it, protecting the father from the mother. She spent four days incarcerated before being released.

4. She also said that in April 2019 she got in a fight with someone in Town B, which is where either the mother lives or her parents or at least her mother lives. She was charged with an aggravated assault on another woman when she was intoxicated. She said she was intoxicated in both incidents. They are recent incidents. She said that as a result of both those matters, last month on 5 August she was found guilty and placed on a six-month good behaviour bond. She said that just a couple of weeks ago on 24 August 2019, while she was in Darwin, a woman insulted her and she, that is, the mother, was “a bit tipsy and high from ganja” and punched the woman in the head. She was arrested and kept in the Darwin watch-house overnight. She was found guilty and convicted of that assault two days later in the Local Court and given a suspended sentence of imprisonment and ordered to do community work. She is on a supervisory order and is not allowed to drink alcohol or take any illicit drugs until 25 May 2020.

5. Whether or not in such a short time it can be assessed whether the mother is compliant with that supervisory order, I do not know. I do not think it can be said whether or not she is compliant with that order. Her history of alcohol misuse and what appears to be a period of unsuccessful rehabilitation earlier in the year, that is, in March before these alcohol related offences would suggest that she will have great difficulty rehabilitating herself.

6. Both parties today conceded that the children’s time with the mother ought to be supervised. The argument really narrowed down to whether the supervision ought to be, as the father proposes, once a month at Save the Children in Town F which is about an hour’s drive from Town B, plus two Saturdays a month of time in Town B supervised by Mr A, who is a maternal uncle, a member of the mother’s family but a supervisor who is acceptable to the father who also lives in this small community in Town B or, as the mother proposes, supervisors including the maternal grandmother, Ms C, and her partner Mr D. The point of the supervision being extended to those two persons is that it would increase the option for time that the children spend with their mother. It is not in issue that the children love their mother and want to spend time with her and it is also not in issue that when the mother is sober she is a good and loving mother.

7. Ordinarily, I would be very sympathetic to the proposal that the number of supervisors be extended. The difficulty I have is this: on 3 May 2019 there was a violent incident at the home of Ms C and Mr D in Town B when the mother, who was apparently drunk, came to her mother’s house, bashed on the door with a metal curtain rod and threatened to get a knife and, by implication, stab someone. The police report confirms that no knife was actually found. The upshot of that was that the police attended and a domestic violence restraining order was put in place to protect Ms C and preventing the mother from the mother having any contact with Ms C, that is, her daughter having any contact with Ms C, when Ms Hewett was under the influence of alcohol.

8. The concern I have is that the maternal grandmother, Ms C, filed an affidavit in these proceedings on 6 September 2019, that is, a period of slightly more than four months after this episode. Inexplicably, the affidavit from Ms C makes no mention of the episode and, indeed, the affidavit goes out of its way, in my view, to suggest that the mother does not constitute any risk to the children at all. Paragraph 7 reads:

   When Ms Hewett –

   a reference to the mother –

   … has seen my grandchildren –

   a reference to the children in this case –

   … with us supervising after she got out of rehab two to three times since April 2019 to now, there has never been any problem with Ms Hewett when we are there with my grandchildren. She has never been drunk or violent then. My grandchildren love to see their mother; they hug and cuddle her. We are both willing to keep supervising the children. This is also the only way we get to spend time with them and with our family as well.

9. The only thing that stops that affidavit from being seriously misleading, in my view, is the qualification imported by the phrases “with my grandchildren” and the word “then”. I consider the affidavit raises very serious concerns about the suitability of Ms C as a supervisor. There is an obligation resting on any person putting themselves forward as a supervisor of a child’s time with a parent who might constitute a risk to the children to engage in a full and frank disclosure of their relationship, the nature of the relationship, the recognition of any risks and what that person would do should a risk arise. I consider the affidavit from Ms C remarkably deficient in those latter requirements. As for the proposal that her partner, Mr D, be a supervisor, I have seen no affidavit from Mr D. There is no affidavit from Mr D.

10. Ms Papp for the mother says that I should not be concerned about the matters that I have just raised because when Territory Families intervened in September, the informal contact agreement put in place involved an agreement between Ms Hewett and Ms C and Mr Henrick, the father in this case, that the children would spend supervised time with the mother on Sundays from 9 to 12 and from Fridays 5 pm to 8 pm at Ms C and Mr D’s house, that is, the maternal grandmother’s home and Mr D’s house, and that the maternal grandmother would pick up the children from the father’s house at that time. Ms Papp submitted that I should be satisfied that Territory Families made an assessment of Ms C and Mr D and their home and I should infer from the existence of that agreement that Territory Families have conducted an investigation and were satisfied that Ms C and Mr D, were supervisors who would properly protect these children. That may be and it may be that all of that has happened but the fact is there is nothing to say it happened and there is no evidence that it happened.

11. In circumstances where I know there has been an incident at the home of Ms C and Mr D involving the mother involving intoxication and violence and a threat of violence of a very serious kind, I think I have to have a little more than I have been given to be assured that Ms C and Mr D are appropriately protective and that there would be no repeat of the episode that occurred on 3 May. In my view, this is a case where subsection 60CC (2)(b) comes into play and the proclivity demonstrated by the mother to intoxication and violence requires a very cautious approach, particularly having regard to the obligation referred to in subsection 60CC(2)(b) to protect children from harm having the greatest weight.

12. Ms Papp said that there are other matters including that the children are Aboriginal children and I have to give due weight to or appropriate weight to their right to enjoy their culture and language and so on. I accept that without question but for the reasons I have given, I consider that those considerations at this stage are outweighed by my concern that these children should be protected from any unacceptable risk of harm.

13. I am satisfied that to ensure that there is no unacceptable risk of harm to these children the proposals put forward by the father should be the ones adopted

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Young.

Date:         9 October 2019