Lipmann & Flemming
[2024] FedCFamC2F 1298
•16 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lipmann & Flemming [2024] FedCFamC2F 1298
File number(s): DUC 305 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 16 September 2024 Catchwords: FAMILY LAW – Parenting – Urgent interim hearing – Whether a recovery order can be made for child governed by a very old children’s court order – Longstanding arrangement – Conflict between teenager and ‘live with’ parent – Child not attending school – Child now living with previous ‘spend time’ parent – Child to live with long term ‘live with’ parent – Matter adjourned pending advice from NSW Child Protection. Legislation: Family Law Act 1975 (Cth) s 69ZK Division: Division 2 Family Law Number of paragraphs: 25 Date of hearing: 16 September 2024 Place: Melbourne Solicitor for the Applicant: Ms Blockley-Ireland, Allwright Bourke Lawyers & Conveyancing The Respondent: In Person ORDERS
DUC 305 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LIPMANN
Applicant
AND: MR FLEMMING
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
16 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.These orders are to come into effect when the orders of the New South Wales Children’s Court at City H made on 29 July 2016 (‘the 2016 Children’s Court Orders’) and the orders of the District Court of New South Wales made on 31 May 2017 (‘the 2017 District Court Orders’) cease to have effect, OR these orders come into effect when the written consent of a child welfare officer of the State of New South Wales has been obtained and provided to this Court and to the parties.
2.The Department of Communities and Justice NSW (‘the Department’) be and is URGENTLY REQUESTED to do all acts and things to assist the implementation of these orders and is REQUESTED to provide written consent for this Court to deal with the matter pursuant to section 67ZK(1)(b) of the Family Law Act 1975 (Cth) (‘the Act’), unless the Department:
(a)Intervenes in these proceedings; or
(b)Deals with the issue of the welfare of the children, X born in 2010 (‘X’) and Y born in 2011 (‘Y’), (collectively, ‘the Children’).
3.The matter be and is listed for Mention before Judge O’Shannessy at 4.15 pm on Wednesday 18 September 2024, AND at 2.15 pm on Thursday 19 September 2024 with appearances to be via Microsoft Teams.
4.An officer of the Department is REQUESTED to attend the hearing listed for 4.15 pm on Wednesday 18 September 2024.
5.On or before 2.15 pm on Wednesday 18 September 2024, the relevant officer of the Department is REQUESTED to provide advice to this Court via communication with the Chambers of Judge O’Shannessy, as to whether they provide consent or not pursuant to order 2 herein.
6.The City D Family Court Liaison Officer, Mr E, is REQUESTED to bring these orders to the attention of the Department as soon as possible.
7.The Father do all acts and things to cause and ensure that X attend Town C Police Station at 10.00 am on Thursday 19 September 2024 for the purpose of returning to the care of the Mother.
8.The solicitor for the Mother provide to the Officer in Charge of the NSW Police at Town C and at City F:
(a)a copy of these Orders; and
(b)the reasons for judgment (as soon as they are available).
Parenting arrangements
9.The children live with the applicant Mother, MS LIPMANN (‘the Mother’).
10.The children spend time with the respondent Father, MR FLEMMING (‘the Father’) at the same times provided in the 2017 District Court Orders as follows:
(a)No less than one weekend every four (4) weeks commencing on a date to be agreed between the parties in writing via text message or email, or in default of agreement, commencing on Friday 18 October 2024:
(i)From 4.30 pm on Friday to 2.30 pm on Sunday;
(ii)For one-half of each gazetted NSW Public School holidays and failing agreement as to which half, it shall be the first half in each even numbered year and the second half in each odd numbered year, or as agreed between the Father and the Mother.
(iii)For the purposes of Order 8(a)(ii) the following applies:
1. The ‘first half’ of the school holiday period means from 4.00 pm on the last day of due attendance of the school term until 12.00 pm on the midpoint day of the holiday period inclusive;
2.The ‘second half’ of the school holiday period means from 12.00 pm on the midpoint day until 5.30 pm on the day immediately preceding the first day of due attendance in the next school term.
Father’s Day and Mother’s Day
(b)Notwithstanding any other order herein contained, the Father and the Mother ensure that:
(i)The Father shall not have the children on the weekend which includes Mother’s Day but in substitution the Father will have the children with him on the following weekend in accordance with the arrangements set out in these Orders;
(ii)The Mother shall not have the children on the weekend which includes Father’s Day but in substitution the Mother will have the children on the following weekend in accordance with the arrangements set out in these Orders.
Christmas
(c)Notwithstanding any other order herein contained, the parent not spending time with the children during the first half of the Christmas school holidays will spend time with the children from 4.30 pm on Christmas Eve to 2.30 pm on Christmas Day, or as agreed between the Mother and the Father in writing via text message or email.
Children’s birthdays
(d)Notwithstanding any other order herein contained, both the Father and the Mother shall allow the other parent to have contact with the children during the following hours:
(i)If on a school day, from the end of school for a period of 2 hours on each child’s birthday; and
(ii)If on a weekend, for a period of 4 hours on each child’s birthday; or
(iii)At such other times as agreed between the Father and the Mother in writing via text message or email.
Agreement
(e)Such further times as agreed between the Father and the Mother in writing via text message or email.
Changeover
(f)All changeovers are to take place at City F police station.
11.The Father shall keep the Mother and the Department advised of his contact telephone numbers and address and any change to those details at least forty-eight (48) hours prior to such changes or as soon as practicable immediately thereafter.
12.The Father is at liberty to telephone, Skype or Face Time the children on Tuesdays at 6.30 pm and Sundays at 10.30 am or as agreed between the Father and the Mother in writing via text message or email.
13.The Father and the Mother shall ensure that the other parent is kept informed of:
(a)Any medical problems or illness suffered by the children while in the other parent’s care;
(b)Any medication that has been prescribed for the children;
(c)Any other matter relevant to the children’s welfare.
Information sharing
14.Pursuant to section 67ZBE of the Act, the Department is to provide to the Court as a matter of urgency any documents and any information in its possession or control relating to:
(a)All interview notes, assessments, records, information or documents related to the children, X born in 2010 (‘X’) and Y born in 2011 (‘Y’), relating to any of the following matters set out in section 67ZBE(2):
(i)abuse, neglect or family violence to which a child to whom the proceedings relate has been, or is suspected to have been, subjected or exposed since mid-2017 (the date of the District Court orders);
(ii)family violence to which a party to the proceedings has been exposed, or in which a party to the proceedings has engaged, to the extent it may affect a child to whom the proceedings relate since mid-2017, if any;
(iii)any risk or potential risk of a child to whom the proceedings relate being subjected or exposed to abuse, neglect or family violence since mid‑2017;
(iv)any risk or potential risk of a party to the proceedings being subjected to, or engaging in, family violence, to the extent any such family violence may affect a child to whom the proceedings relate since mid‑2017, if any; and
(b)any other documents or information pursuant to section 67ZBE(5) that relate to the children since mid-2017.
Independent Children’s Lawyer
15.Pursuant to s 68L(2) of the Act, the Children be independently represented AND IT IS REQUESTED that NSW legal aid body arrange such independent representation and:
(a)forthwith upon appointment by NSW legal aid body or otherwise, the Independent Children’s Lawyer file a notice of address for service;
(b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent themselves) provide to the Independent Children’s Lawyer copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports;
(c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Federal Circuit and Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and
(d)the Independent Children’s Lawyer prepare a minute of the orders they will recommend be made as final orders.
16.Leave is granted to the Independent Children's Lawyer to inspect and copy:
(a)Any subpoena material produced in relation to these proceedings;
(b)Any material produced by the Department in response to the notification made under s 67ZBD;
(c)Any documents produced by the Department in response to the order to provide documents or information (s 67ZBE Order).
Child Impact Report
17.Pursuant to section 62G of the Act, the parties and the Children are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates to be advised, or as otherwise directed by the Court Child Expert.
18.Each party will do all things necessary to ensure the children attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
19.The parties and the children shall continue to attend at such times, dates and places as the Court Child Expert may advise.
20.Not later than 4.00 pm on Monday 23 September 2024 the parties must provide their contact telephone numbers and email addresses to …@....
21.Pursuant to order 17 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(d)the impact of the issues/dispute before the Court on the children; and
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the children.
22.Upon completion, the Child Impact Report shall be provided to the registrar for release to the parties, including by way of order made in Chambers.
23.The Court Child Expert shall be at liberty to inspect any material filed by the parties, and any subpoenaed documents.
Restraints
24.The parties be and are restrained from:
(a)Discussing these proceedings or an allegation made in these proceedings with the children;
(b)Denigrating the other parent or family member or a member of his or her family or household in the presence of the children and from permitting another person to do so;
(c)Exposing the children to any form of family violence including verbal violence or using abusive language, within, or in the hearing of the children or permitting another person to do so; and
(d)Physically chastising or physically disciplining the children in any way.
25.The Father be and is restrained from using drugs and drinking alcohol while the children are in his care and at least 12 hours prior to the children entering his care.
26.Within fourteen (14) days of the date of these orders and every three (3) months thereafter, the Father shall participate in Hair Panel Testing with the Drug Detection Agency, or such other accredited agency for hair drug testing purposes and for the purposes of this order:
(a)The collection of the hair testing is to be conducted by a qualified and certified collector;
(b)The chain of custody procedure is to be applied to the sample;
(c)Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory;
(d)That head hair is to be collected for testing;
(e)The Father shall be solely responsible for the cost of such testing; and
(f)The results of such testing are to be provided to the Applicant's legal representative within 24 hours of the Father's receipt of same.
27.Until completion of the hair follicle testing, the Father shall refrain from taking any step which may interfere with the provision of hair samples or interfere with the test results including taking any step to shave, cut, shorten, colour, bleach any scalp or body hair and shall be restrained from cutting his head and body hair shorter than 3.9cm in length.
28.The Father is directed to provide a copy of these orders to the Drug Detection Agency, or other such accredited agency.
29.In the event of a positive test or any breach of this order by the Father, the Father’s time with the Children under this order is suspended until further order.
30.Each party be and is at liberty to apply at short notice in the event that order 23 herein is invoked.
AND THE COURT NOTES THAT:
A.The matter is listed for hearing on Wednesday 18 September 2024 at 4.15 pm and Thursday 19 September 2024 at 2.15 pm to consider the making of a recovery order in the event that X has not returned to the care of the Mother, and in the event that the Department consents in writing to an order, or that the 2017 District Court orders have ceased.
B.The Mother asserts that her solicitor has provided the application and affidavits in these proceedings to the Department on:
·1 August 2024;
·11 September 2024; and
·16 September 2024.
C.Pursuant to section 67ZBK the parties are restrained from issuing any subsequent subpoena to the Department requiring the Department to provide documents or information in relation to these proceedings, except with the leave of the Court.
D.Material provided by the Department pursuant to these orders may be redacted pursuant to section 67ZBF.
E.Pursuant to section 67ZBH(1) the Court must admit into evidence any particulars, documents or information provided under an order made under section 67ZBD, or under subsection 67ZBD(5), on which the Court intends to rely.
F.An Independent Children’s Lawyer has been appointed due to the significant risk of abuse, neglect, and/or harm to the children’s welfare in this case.
G.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
H.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.
I.Affected unrepresented parties may apply to the court and then 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.
J.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
K.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
The matter of Lipmann & Flemming comes before me this day as an urgent matter on an interim hearing week in Melbourne. The matter concerns two children, being X born in 2010 (‘X’) and Y born in 2011 (‘Y’) (collectively ‘the children’). X is 14, and Y is 12, almost 13. The hearing proceeded by video link (Mother) and telephone (Father).
Ms Lipmann (‘the Mother’), has another two other children from previous relationships, B born in 2007 (‘B’) who is 17 and G born in 2016 (‘G’), who is eight. G’s father has not had any notice of these proceedings, and I am not satisfied it is necessary for any order to be made concerning G. The Mother and the Father live in different cities in NSW.
Background
The parents of X and Y had a relationship long ago, in 2009, and separated in around June 2012. It is common ground that on or about mid-2024, X and his mother got into an argument. X had arranged a part-time job near to where he lives. Instead of starting his part-time job or continuing at school, X attended at the City F Police Station, and complained to the police about living with his mother, and told them that he wanted to live with his father. That much seems common ground. Whether X intended that to be a temporary or permanent arrangement, or whether he had not turned his mind to it, is not clear.
In her affidavit filed on 29 July 2024, the Mother sets out what she says is the inconsistent attendance of the Father to see the children.
History of proceedings
Back in mid-2016, the Children’s Court at City H had made orders placing X and Y in the care of the Minister of Community Services for a period of 12 months. At the expiration of that 12 months, parental responsibility for B and X and Y was allocated to their mother, Ms Lipmann. This was to continue until they were 18 years of age.
The Father appealed that order, and the matter was then dealt with by the District Court of New South Wales in Sydney. That Court confirmed the orders which were, effectively, that the children were in the care of the Minister, but living with the Mother for 12 months, from mid‑2016, but provided that the boys, Y and X, were to see their father no less than one weekend in every four.
The Father tells me that X is desperate to live with him, and it would break his (the Father’s) heart if I ordered that X was to return to his mother. X has told his father (according to the Father), that he wants no contact with his mother, and he fears her actions. The Father tells me that X complains of being interrogated and questioned by his mother, and his mother denigrating his father. The Father tells me that he has taken some time and trouble to try and have X’s medical appointments still in place, and some time and trouble to try and get X to attend school in Town C or Town J.
Unsurprisingly, in the circumstances where (by the order of the Children’s Court of New South Wales and the District Court of New South Wales) the Mother has entire parental responsibility for X and Y, the Father has experienced difficulties in getting X enrolled at school. At this moment (being the middle of September), since the end of July, X has not been attending school, because his Father has not been able to get him into one.
The Mother is sceptical about the Father’s efforts to get X into school. The Father tells me (and I accept that), that the school authorities have simply not cooperated with him for X to attend school.
Issue concerning X
The Mother’s account is that she was attempting to discipline X, in regard to him surreptitiously using her vape, without her permission. The Father’s account is that X has told him that he was unhappy with the Mother, when the Mother was denigrating the Father and cross‑examining him.
Another issue that arises (in the middle of all this and shortly before X ran away). X had seen a drug in the fridge in the household occupied by his Father, who was then, and is now, living with his mother – that is, X’s paternal grandmother.
That was a photograph of a bottle of a drug, and that was accompanied by X’s text message to his mother:
Hey, Mum.
What is [this]
Mum
Answer me.
Ms Lipmann sent back a message:
[That] is a drug!
A very bad drug, why?
X then sent a photograph of a bottle of the drugs.
The Father has been helpful to me today, representing himself, after taking advice from the duty lawyer. The Father tells me that the drugs belonged to his brother, who was staying overnight on one night, and that he is not taking drugs or other substances. The Father also asserts that he has never been to jail.
Conclusion
X to live with the mother
In all of the circumstances, I am not satisfied that it is in X’s interest not to be attending school and to not be living in the same household as his brother and sister. In all of those circumstances, I am satisfied that it is in X’s interest, until further order, and until this is looked at more carefully, that X live with Y, his sister and the Mother.
In the event that he does not go into that care, I will consider issuing a recovery order, which means the police will track down X, put him in their care and deliver him to the Mother. That could be distressing to X, and I want to avoid that if I can.
Jurisdictional issue
The other aspect is, as at this afternoon, I do not have jurisdiction to make a recovery order. Or rather, I am not satisfied that I do because of section 69ZK of the Family Law Act 1975 (Cth).
Section 69ZK Child welfare laws not affected
(1)A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:
(a)the order is expressed to come into effect when the child ceases to be under that care; or
(b)the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.
…
[Emphasis added]
States retain child protection jurisdiction
The point of it is that the State of New South Wales, like the State of Victoria or Queensland, retains jurisdiction to deal with protective concerns and children’s welfare concerns. The jurisdiction that I have overlaps with that jurisdiction.
However, by reason of section 69ZK of the Act, I do not have jurisdiction to override the NSW Children’s Court order. Relevant parts of the Children’s Court order and the District Court order are as follows:
9.The children live with the applicant Mother, [MS LIPMANN] (‘the Mother’).
10.The children spend time with the respondent Father, [MR FLEMMING] (‘the Father’) at the same times provided in the 2017 District Court Orders as follows:
(a)No less than one weekend every four (4) weeks commencing on a date to be agreed between the parties in writing via text message or email, or in default of agreement, commencing on Friday 18 October 2024:
(i) From 4.30 pm on Friday to 2.30 pm on Sunday;
(ii)For one-half of each gazetted NSW Public School holidays and failing agreement as to which half, it shall be the first half in each even numbered year and the second half in each odd numbered year, or as agreed between the Father and the Mother.
…
Agreement
(e)Such further times as agreed between the Father and the Mother in writing via text message or email.
Changeover
(f) All changeovers are to take place at [City F] police station.
…
The solicitor for the Mother tells me, and I accept, that she served the relevant documents on the NSW Department on 1 August 2024, on 11 September 2024 and again today (16 September 2024). The Mother’s solicitor pressed (and nagged) the Department to deal with the matter, and all I need, is the written consent of the child welfare officer concerned. However, it is likely that there is no child welfare officer concerned.
The Father tells me that he has also sought the assistance of Child Protection to assist him get X into a school. I am satisfied that it is likely that the records of the proceedings in the Children’s Court and the District Court, concerning X and Y, are in storage somewhere, hopefully accessibly electronically, but not necessarily.
The recovery order cannot be issued until and unless the Department consents, or otherwise intervenes in the proceedings.
So, it is in these circumstances that I make the orders that provide for the ‘live with’ order (order 9) to come into effect only upon one of the two events as described in order 1 herein.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 16 October 2024
0
0
1