FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mottram & Faulkner [2024] FedCFamC2F 183
File number: ADC 2699 of 2022 Judgment of: JUDGE BROWN Date of judgment: 15 February 2024 Catchwords: FAMILY LAW – Interim hearing – parenting arrangements for a child aged five years old – mother alleges child has made disclosures of a sexual nature – father denies allegations and asserts mother is alienating the child from him – assessment of risk – exposure to family violence – where the parties have no capacity to co-parent – where the matter is listed for trial in five weeks – assessment of risk at an interim stage – section 102NA considerations – proportionate response to risks identified – matters to be considered Legislation: Australian Constitution Ch III
Family Law Act 1975 (Cth) Pts VII, XI, Div 3, ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 68B, 68LA, 69ZW, 102NA 114,
Cases cited: B and B (1993) FLC 92-357
Deiter & Deiter [2011] FamCAFC 82
M & M (1988) FLC 91-979
Marvel & Marvel (No 2) [2010] FamCAFC 101
N & S and the Separate Representative (1996) FLC 92-655
Slater & Light [2013] FamCAFC 4
W & W (abuse allegations: unacceptable risk) (2005) 34 Fam LR 129
Division: Division 2 Family Law Number of paragraphs: 206 Date of hearing: 6 February 2024 Place: Adelaide Counsel for the Applicant: Mr Lindsay Solicitor for the Applicant: CG Family Law Respondent: Appeared in person Counsel for the Independent Children's Lawyer: Ms Horvat Solicitor for the Independent Children's Lawyer: Lee Kelly Legal ORDERS
ADC 2699 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MOTTRAM
Applicant
AND: MR FAULKNER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
15 FEBRUARY 2024
THE COURT ORDERS UNTIL FURTHER OR OTHER ORDER THAT:
1.The Orders of 14 December 2023 and paragraphs 1, 2 & 4 of Orders made 30 August 2023 are hereby suspended.
2.The respondent father, Mr Faulkner, is to spend time with X born 2018 commencing Saturday 17 February 2024 from 9.00am to 6.00pm and each Saturday thereafter.
3.All handovers occur at the Suburb B Police Station.
THE COURT FURTHER ORDERS THAT:
4.Pursuant to s102NA(1)(c)(iv) of the Family Law Act 1975 (Cth), the parties in this matter are restrained from cross-examining the other party directly or personally other than through a legal practitioner acting on their behalf.
5.Pursuant to Section 69ZW of the Family Law Act 1975 (Cth), the Department for Child Protection do provide the Court on an urgent basis with the following documents or information from 10 August 2022 to present:
(a)copies of any notifications regarding abuse allegations arising relating to the child X born 2018;
(b)copies of any notifications regarding abuse allegations arising relating to either party during the course of their adult lives.
(c)any assessments of investigations into such abuse allegations;
(d)the outcome or findings of any such investigations; and
(e)copies of any reports received by the Department for…
Continue reading Mottram & Faulkner
Sign in free to access the full text
- AGLC
- Mottram & Faulkner [2024] FedCFamC2F 183
- Case
- [2024] FedCFamC2F 183
- Decision Date
CaseChat Overview and Summary
The court was required to consider the provisions of section 102NA of the Family Law Act 1975 (Cth) and ensure a proportionate response to the risks identified. The court evaluated the allegations, the child's safety, and the capacity of the parents to co-parent. Given the allegations and the potential risk of harm, the court determined that it was in the best interests of the child to suspend the previous orders and establish new interim arrangements. The court also imposed restrictions on cross-examination and requested additional information from relevant authorities to better inform its decision.
Judge Brown ordered that the previous interim parenting orders were suspended, with Mr Faulkner to commence spending time with the child starting on 17 February 2024, with all handovers occurring at a police station to mitigate any risk of family violence. Additionally, the court restrained the parties from directly cross-examining each other and requested urgent reports from the Department for Child Protection and the South Australian Police Department regarding any child abuse or family violence allegations. The court also confirmed the upcoming trial date and requested the Independent Children's Lawyer to arrange for the Family Report writer to give evidence.
The final orders included the suspension of prior orders, specific interim parenting arrangements, restrictions on direct cross-examination, and the provision of reports from relevant authorities. The trial was confirmed to commence as scheduled, and all other interim applications were dismissed.
Orders
Orders of the court
ADC 2699 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS MOTTRAM
Applicant
AND:
MR FAULKNER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
15 FEBRUARY 2024
THE COURT ORDERS UNTIL FURTHER OR OTHER ORDER THAT:
1. The Orders of 14 December 2023 and paragraphs 1, 2 & 4 of Orders made 30 August 2023 are hereby suspended.
2. The respondent father, Mr Faulkner, is to spend time with X born 2018 commencing Saturday 17 February 2024 from 9.00am to 6.00pm and each Saturday thereafter.
3. All handovers occur at the Suburb B Police Station.
THE COURT FURTHER ORDERS THAT:
4. Pursuant to s102NA(1)(c)(iv) of the Family Law Act 1975 (Cth), the parties in this matter are restrained from cross-examining the other party directly or personally other than through a legal practitioner acting on their behalf.
5. Pursuant to Section 69ZW of the Family Law Act 1975 (Cth), the Department for Child Protection do provide the Court on an urgent basis with the following documents or information from 10 August 2022 to present:
(a) copies of any notifications regarding abuse allegations arising relating to the child X born 2018;
(b) copies of any notifications regarding abuse allegations arising relating to either party during the course of their adult lives.
(c) any assessments of investigations into such abuse allegations;
(d) the outcome or findings of any such investigations; and
(e) copies of any reports received by the Department for Child Protection in the course of investigating any such notifications.
6. Pursuant to section 69ZW of the Family Law Act 1975 (Cth), the South Australian Police Department shall provide the Court on an urgent basis with the following documents or information from 10 August 2022 to present:
(a) copies of any reports or notifications of child abuse allegations or allegations of family violence involving either of the parties (Ms Mottram born 1997 & Mr Faulkner born 1996) or the child (X born 2018); and
(b) the outcome or findings of any such investigations, including antecedent reports for each of the said parties.
7. The Independent Children’s Lawyer is requested to arrange for the Family Report writer to give evidence at 10:00am on 21 March 2024 and confirm in writing the availability of the report writer with the other parties and the Associate to Judge Brown.
8. The trial listed to commence on 21 March 2024 for two days is confirmed.
9. All extant interim applications are dismissed.
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).
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.