MAEDA & BEAULIUE

[2019] FCCA 3801

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAEDA & BEAULIUE [2019] FCCA 3801

Catchwords:
FAMILY LAW – Parenting – where allegations of violence and abuse were raised by the child to the family consultant – protection of child from risk of harm and abuse – where Legal Aid conference is scheduled for the following week – where there are orders preventing parents exercising corporal punishment – where there is no unacceptable risk of harm and abuse – matter adjourned following Legal Aid conference.

Legislation:

Family Law Act 1975 (Cth), s.60CC(2)

Applicant: MR MAEDA

Respondent: MS BEAULIEU

File Number: ADC 4412 of 2018

Judgment of: Judge Young

Hearing date: 11 December 2019

Date of Last Submission: 11 December 2019

Delivered at: Adelaide

Delivered on: 11 December 2019

REPRESENTATION

Counsel for the Applicant: Ms Green

Solicitors for the Applicant: Phillips Green & Associates

Counsel for the Respondent: Ms Qu

Solicitors for the Respondent: Qu Family Lawyers

Counsel for the Independent Children’s Lawyer: Mr Adey

Solicitors for the Independent Children’s Lawyer: Norman Waterhouse Lawyers

UPON NOTING

A.That the parties are to attend a family dispute conference at Legal Aid Commission on 17 December 2019.

B.That any urgent application in a case will be considered prior to the adjourned date.

THE COURT ORDERS

1. That the matter be adjourned to 25 February 2020 at 9.30am for further directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4412 of 2018

MR MAEDA

Applicant

And

MS BEAULIEU

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 a parenting matter concerning [X], a five year old child, who lives with his mother and spends time with his father. 

3. At the interview with the family consultant [X] disclosed to the family consultant that his mother used corporal punishment on him and said that he had been smacked “hundreds” of times, including around the head and the face on occasion. I think he said on one occasion.

4. On further questioning by the family consultant the child became avoidant, which would appear to indicate that the child was anxious about disclosing any further information to the family consultant.

5. The reason why the report was released today is the family consultant had indicated, probably to the director of Children’s Services in the Court, her concerns about the situation. She has also made a mandatory report to the Child Protection unit. There is no indication, as far as I am aware, of any investigation flowing from that. 

6. In addition, there were some other concerning factors which indicated some question mark about the mother’s mental health, though nothing very definite and, at this stage, nothing terribly serious. All in all, those factors point to an engagement of subsection 60CC(2)(b) of the Family Law Act 1975, that is, the greater weight to be given to the need to protect the child from the risk of harm or abuse.

7. I was contemplating whether some further order needed to be made today about that subject. I, in effect, invited submissions from counsel about that and the position across the bar table, as I understand it, is that it is thought that, presumably on instructions, though for some reason the mother is not here today, and bearing in mind that there is a Legal Aid conference next week, the parties are hopeful, perhaps optimistic, about reaching some agreement about [X] and where he is to live and with whom he is to spend time and how much time.

8. I will indicate to the parties that if there is not a resolution next week at the conference I will entertain any urgent application. Given the fact that there is an order in place prohibiting either party using corporal punishment on [X] and there is no suggestion that [X] is at risk of that in his father’s household - on the contrary, there is clear evidence that corporal punishment is not practiced in the father’s household, and deliberately so; given that there is a conference next week; given that I have indicated that I would entertain an urgent application and given that there is an existing order prohibiting the parents, in this case the mother particularly, from exercising corporal punishment on [X], I am satisfied that any risk of harm to him is acceptable at this stage. To put it in the more usual format, there is not an unacceptable risk of harm to him in remaining in his mother’s care at this stage.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  8 January 2020