Jay & Tait

[2020] FamCA 757

FAMILY COURT OF AUSTRALIA

Jay & Tait [2020] FamCA 757

FAMILY LAW – CHILDREN – Best interests – where the father submits he is unable to comply with orders made requiring him to ensure his partner is not present on his property during such times the child may be present on the property – where orders providing for the child to spend time with the father are suspended pending conclusion of the final hearing – where orders are made requiring the parties to disclose any instance of police attendance at their property or charge of driving under the influence of alcohol within 24 hours to the other parties.

FAMILY LAW – INJUNCTIONS – Protection of child – where the father is restrained from taking the child into his care – where the father is restrained from coming within one kilometre of the mother’s house – where the father is restrained from contacting the child’s school.

Family Law Act 1975 (Cth)

APPLICANT: Ms Jay

RESPONDENT: Mr Tait

Independent children’s lawyer: Forest Glen Lawyers

FILE NUMBER: BRC 6316 of 2013

DATE DELIVERED: 28 August 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 28 August 2020

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER Forest Glen Lawyers

Orders

IT IS ORDERED THAT

1. The final hearing of this matter is adjourned part heard for two (2) days re-commencing on 28 September 2020 before Justice Hogan.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The operation of Order 2 of the Order made by Judge Purdon-Sully on 6 November 2018 is suspended.

2. Unless otherwise agreed between the parties and the Independent Children’s Lawyer in writing, the child, Z, born … 2007 shall live with her mother from the making of this Order until Monday, 28 September 2020 and the father is restrained and an injunction issue restraining him from taking the child, Z, born … 2007 into his care.

3. The father be restrained and an injunction issue restraining the father from communicating with the child, Z, born … 2007 by email and text message.

4. The father be restrained and an injunction issue restraining the father from coming within one kilometre of the mother‘s residence.

5. The father be restrained and an injunction issue restraining the father from contacting B School.

6. Each of the parents disclose the fact of any police attendance at their home or the fact of any charge brought against them for driving under the influence of alcohol or having a blood alcohol content of more than 0.05%, within 24 hours of the event occurring and such event be notified in writing to the other party and the Independent Children’s Lawyer.

7. The Independent Children’s Lawyer is at liberty to meet with the child, Z, born … 2007 for the purposes of explaining the terms of the Orders made today.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

NOTATION

(A)The Court notes that the mother proposed that, until the matter returns to Court on 28 September 2020, the father be at liberty to communicate by telephone with the child, Z, born … 2007 each Tuesday. Thursday and Sunday.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jay & Tait has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

Family Court of Australia at BRISBANE

FILE NUMBER: BRC 6316 of 2013

Ms Jay

Applicant

And

Mr Tait

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. I do not intend to deliver lengthy reasons in the matter. 

2. I have to date in this trial – which will continue before me on 28 and perhaps 29 September of this year – heard the evidence and cross-examination of, importantly, each of Z’s parents.  I have also had the benefit to date of receiving into evidence the contents of those documents which I have marked as Exhibits.

3. On the basis of the evidence given to date, and noting, of course, that I am yet to see Ms D cross-examined – so my comments are prima facie and arrived at only on the evidence to date given by Mr Tait in particular and the contents of the documentary Exhibits – I am persuaded that it is not in Z’s best interests that there be any risk that she be exposed to any incident between her father and Ms D between now and when the matter returns for the conclusion of the trial.

4. I note the submissions made by the Independent Children’s Lawyer to the effect that, in essence, if the current orders were accepted by Mr Tait and put into effect, then they should remain.  The Independent Children’s Lawyer also sought additional orders: namely, that within 24 hours of police attending at the home of either parent or either parent being charged with an offence of driving under the influence of alcohol, the parent notify the Independent Children’s Lawyer in writing of such event; and, also, an order that the Independent Children’s Lawyer be at liberty to meet with Z to explain whatever orders I make.  Those are the additional orders sought. 

5. It is clear from Mr Tait’s evidence – and he certainly has not resiled from that in the course of his very brief but pointed submissions just given – that he does not intend to comply into the future with the orders which currently restrain him from bringing Z into contact with Ms D (the evidence to date being that there have been two occasions when Z has been present during the course of an incident involving Ms D) and that he does not intend to comply with the order I made on 26 August that he use his best endeavours to ensure that Ms D is not present on his property.

6. Given the father’s position in relation to Ms D’s attendance at his property when Z might otherwise have been there in accordance with the existing orders, it seems to me that I should, acting in Z’s best interests, discharge or suspend the operation of the orders made by Judge Purdon-Sully on 6 November 2018 insofar as they provide for Z to spend time with her father for the period between now and the trial resuming.  That seems to me to be order 2 of that order.

7. In doing that, I note the mother’s submission about the possibility of there being some supervised time arranged between Z and her father between now and the resumed hearing.  Again, the father’s evidence was clear and consistent.  His evidence included that, as recently as yesterday, he told Z that he would not see her on a supervised basis at a Contact Centre.  He has repeated consistently in his evidence that, in the event that orders for supervision over his time with Z are made, he would “walk away”.  Such comments, the manner and the tone in which they were made would be clearly apparent to anyone listening to the recording of these proceedings; not only reading any transcript that might at some stage be obtained.

8. I should also say that, given the father’s evidence that, on occasions, including as recently as a couple of weeks ago, Ms D spent time with family members in C Town for a number of consecutive evenings after he transported her to that town and later returned to collect her, it seems to me that there is, in fact, available a mechanism for the father – should he wish to do so – to continue to avail himself of the opportunity to spend time with Z as provided for by the existing interim parenting orders which provided for the alternate weekend and other week time.

9. I do not accept, therefore, the suggestion that, for the next month, there is no other option available to Mr Tait vis--vis the presence of Ms D on the property. 

10. As I said, I am persuaded, at this stage, that it would not be in Z’s best interests to permit there to be any risk of a repetition of the two events spoken of in the evidence. 

11. For those short reasons, provided orally in the context of this proceeding – noting that it is part-heard and will return before me in a month’s time – I intend to make orders in the following terms.

    (1)That until further order, the operation of order 2 of the orders made by Judge Purdon-Sully on 6 November 2018 shall be suspended.

    (2)That unless otherwise agreed between the parents and the Independent Children’s Lawyer in writing, the child shall live with her mother from the making of this order until the matter returns before me on Monday, 28 September 2020, and the father is restrained and an injunction issue restraining him from taking Z into his care.

12. Given the contents of the text exchanges between the father and Z which are in evidence before me, at this stage, I consider that, on an interim basis, it is also in Z’s best interests that the father be restrained and an injunction issue restraining him from communicating with her by email or text. I make an order in those terms.

13. Given my assessment of the father’s likely upset and, to use his term used by him during his evidence, “frustration” – which I consider could also be described as aggression on occasion – I think it is also in Z’s best interests that, on an interim basis, the father be restrained and an injunction issue restraining him from coming within one kilometre of the mother’s residence, and that he also be restrained from contacting B School.  I make such order.

14. I do not intend at this stage to make any particular orders for telephone communication between Z and her father for the next month.  I note, though, that the mother has offered that such communication occur on Tuesday, Thursday and Sundays via telephone.  I will make a notation to the order to record that offer in these terms:  The Court notes that the mother proposes that until the matter returns to Court on 28 September 2020, the father be at liberty to communicate by telephone with Z each Tuesday, Thursday and Sunday.

15. I consider it appropriate also, given the interim nature of the trial and the evidence before me, to make an order that requires each of the parents to disclose the fact of any police attendance at their home or the fact of any charge brought against them for driving under the influence of alcohol, or with a blood alcohol content greater than 0.05, within 24 hours of either of such event occurring, and that such disclosure shall occur in writing directed to the other parent and the Independent Children’s Lawyer.

16. Given the father’s evidence of his conversation yesterday morning with Z of his intention, should there be a change to the circumstances as he has implemented them in purported compliance with the orders of Judge Purdon-Sully made in November 2018, I consider it likely to be beneficial for Z that she is afforded the opportunity to meet with the Independent Children’s Lawyer for the purpose of the Independent Children’s Lawyer explaining the orders which I have now made on an interim basis;  and explaining to Z that such orders are, at this stage, orders which are only intended to apply for the next month. 

17. The orders will issue in those terms.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 28 August 2020.

Associate: 

Date:  28 August 2020