Locke & Jamison (No 2)

[2021] FCCA 1193

FEDERAL CIRCUIT COURT OF AUSTRALIA

Locke & Jamison (No 2) [2021] FCCA 1193

File number:	DNC 173 of 2018
Judgment of:	JUDGE YOUNG
Date of judgment:	27 April 2021
Catchwords:	FAMILY LAW – parenting – concerning a child who is four years of age – where the child lives with the mother and spends time with the father – where the mother has prevented the child spending time with the father – where there is evidence of the child being subjected to emotional harm in the father’s care – Court satisfied there is an unacceptable risk of harm to the child in the father’s care.
Legislation:	Family Law Act 1975 (Cth) ss 11F, 60CC, 69ZW
Number of paragraphs:	7
Date of hearing:	27 April 2021
Place:	Darwin
The Applicant:	Appearing on his own behalf
Solicitor for the Respondent:	Mr Barry of Darwin Family Law

ORDERS

DNC 173 of 2018

BETWEEN:

MR LOCKE
Applicant

AND:

MS JAMISON

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	27 APRIL 2021

UPON NOTING THAT:

A.The father told the Court that he would not spend time with the child at B Contact Centre; and

B.The mother indicated notwithstanding the father’s attitude she would agree to supervised time with the child at B Contact Centre.

THE COURT ORDER UNTIL FURTHER ORDER THAT:

1.The time the father spends with the child X born in 2017 be suspended.

2.Notwithstanding order 1 if the father changes his mind about B Contact Centre the child is to spend time with the father at B Contact Centre at times that can be accommodated by B Contact Centre.

3.The Affidavit filed by the father on 26 April 2021 be uplifted and refiled for non-compliance with the Federal Circuit Court Rules in particular regarding font size.

4.Pursuant to s 68L(2) of the Family Law Act 1975, the interests of the child X born in 2017 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the child's interests.

5.Forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

6.Upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and/or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

7.Within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

8.Pursuant to section 69ZW of the Family Law Act 1975 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 child X born in 2017;

(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.

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

10.The affidavit filed by the father on 29 April be uplifted and re-filed in compliance with Federal Circuit Court Rules particularly regarding font size.

11.Pursuant to s.11F of the Family Law Act 1975 the parties attend reportable child dispute conference at the Federal Circuit Court of Australia Darwin on a date and time to be advised to the parties with a family consultant, to discuss the care, welfare and development of the child X born in 2017 in an endeavour to resolve any differences between the parties in relation thereto. 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 NOTING that the family consultant is to have discretion as to how the parties attend.

12.Following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

13.These proceedings be adjourned to 16 June 2021 at 2.15pm for interim hearing in relation to the time the child spends with the father and the question of supervision.

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 Locke & Jamison (No 2) 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 a parenting matter. Orders were made in this Court by consent on 21 November 2019. The consent orders are poorly drafted. My interpretation of the consent orders is not consistent with counsel for the mother, Mr Barry’s, interpretation.  My interpretation of the consent orders is the same as the father, Mr Locke.  That is, under the present orders, the child would be spending one night a week with the father.  However, the mother has refused to make the child available since 3 April 2021.  The mother does so on the basis of some material provided by Territory Families in an email to her dated 14 January 2021. This was presumably provided to the father also. 

2. On 2 January 2021, the child, X, who has just turned four years old, attended with the father at the C Hospital where various complaints were made that the child was at risk of abuse.  That appears to have been investigated though the claims are very vague.  The Territory Families email dated 14 January 2021 clearly responds to the initial report to Territory Families.  It says that, and I quote:

   In relation to concerns of physical neglect and sexual harm there is insufficient evidence that the child has suffered or is at significant risk of suffering harm whilst in the care of his mother Ms Jamison.

   I believe that relates to the matters of concern at the hospital that were raised by the father. However, the letter goes on to conclude that following investigation there are concerns of emotional harm at the hands of the father.  The letter pointed to indicators of emotional harm, including the child’s very young age, and the child “being consistently asked leading questions that are inappropriate to his age as well as being video-recorded by his father”.  An example is provided when the father “asked X a question in which he responded ‘no’ Mr Locke continued to be heard to tell his son, ‘you need to tell me if he hit you’” The letter went on to identify that “if this behaviour continues, there is a risk that this would have a significant and detrimental effect on X’s emotional wellbeing in the future”. 

3. There are also other indications that the behaviour of the father has heightened at changeover in the presence of X. The father is reluctant to let X return to his mother which upsets the child.  It is also claimed that the father has consistently taken X for medical examinations due to the concerns of physical and sexual abuse whilst in the care of his mother.  The visit to the C Hospital on 14 January 2021 is probably an example of that. 

4. There was also information from the Northern Territory police, Suburb D Day Care, and B Contact Centre.  In respect of the father, all these organisations recorded that they held:

   •Concerns around communication issues between Mr Locke and one of the agencies where the agency reported how Mr Locke often calls to ask unnecessary questions, such as who picks up and drops off X and asking whether X has presented with any bruising marks. 

   •Despite X attending multiple medical examinations, the medical records recorded no evidence of any physical and (sic) sexual harm towards X. 

   The Territory Families recommended that the father work with services to increase his parenting capacity, to assist him to understand appropriate parenting behaviour and to help him to meet the child’s emotional needs. 

5. The other issue that was raised by the mother is set out in an email from the father to the mother dated 30 March 2021. It states (noting the grammatical errors):

   Dear Ms Jamison,

   I would like to inform you which I believe you already know that the head of Child Protection in Darwin is close to E’s mother and there own daughter also work for Child Protection on some good position.  And they were continually asked for my DNA, as you know I have been set up for rape more than 4 to 5 times, police also listen to them and they can have anything changed.  As I’m in fear of mine and X’s life from them, because they are very influential and powerful and I hope X and you are safe.  Because they can do anything they want and can take the kids away from any parents, and also on Friday 26/3/21 when you pulled up outside my place, that either your or there person was trying to get into my car and then tried to open my unit door.  And police don’t do anything because of there power. 

6. I asked the father whether he thought people were trying to harm him or X and he confirmed that he did. He refers specifically to family members he is in dispute with. He said that he was threatened if he came to court he would be subjected to some indeterminate harm. The material before me raises doubts in my mind about the father’s insight into the needs of a young child. It also raises doubts about his own mental health and his willingness to see conspiracies. In conclusion, I consider that there is an unacceptable risk of harm to this child at the present juncture. Section 60CC(2)(b) of the Family Law Act 1975 (Cth) (the Act), in my view, is engaged.  I asked the father whether he would agree to attend B Contact Centre if X was to spend supervised time with him.  He told me he would not. 

7. Accordingly, I propose to make the followings orders:

   (1)the orders providing for the child to spend time with the father until further order be suspended; 

   (2)an order pursuant to section 69ZW of the Act directed to Territory Families.

   (3)an order pursuant to section 11F of the Act for a Child-Dispute Conference on a date to be advised;

   (4)an order for the appointment of an Independent Children’s Lawyer. 

   (5)an order to adjourn the matter for an interim hearing in relation to the child’s time with the father and the question of supervision. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       31 May 2021