Obana & Pedroni

[2021] FCCA 472

FEDERAL CIRCUIT COURT OF AUSTRALIA

Obana & Pedroni [2021] FCCA 472

File number:	DNC 337 of 2019
Judgment of:	JUDGE YOUNG
Date of judgment:	15 February 2021
Catchwords:	FAMILY LAW – parenting – application concerning two children who are 10 and 6 years old – whether the children are at an unacceptable risk of harm – where the mother is seeking a recovery order – where the father alleges the mother is engaging in prostitution – where the father alleges the child has been exposed to explicit text messages – court not satisfied there is sufficient evidence to make the recovery order – further consideration of the matter required
Legislation:	Family Law Act 1975 s 69ZW
Number of paragraphs:	12
Date of last submission:	15 February 2021
Date of hearing:	15 February 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Holtham of Story & Associates
Solicitor for the Respondent:	Ms Gray of Grays Legal NT

ORDERS

DNC 337 of 2019

BETWEEN:

MS OBANA

Applicant

AND:

MR PEDRONI

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	15 FEBRUARY 2021

THE COURT ORDERS:

1.That X born in 2014 and Y born in 2010 (“the children”) are to communicate with the mother between 6.00pm and 7.00pm (NT time) each Monday, Wednesday and Friday with the mother to make the call by skype or any other electronic communication.

2.That the applicant file and serve a Reply and affidavit within 14 days of the date of this order.

3.That the parties are restrained and an injunction is issued restraining the parties from discussing with the children or in the presence or hearing of the children these proceeding or any allegations made in these proceedings.

4.That pursuant to s 11F of the Family Law Act 1975 (Cth), the parties and the children X born in 2014 and Y born in 2010 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Cairns on a date to be advised to the parties. 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 and whether the child X is interviewed.

5.That 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. That pursuant to section 69ZW of the Family Law Act1975 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 children X born in 2014 and Y born in 2010;

(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.

6.That 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.

7.That the matter be adjourned to 11 March 2021 at 2.15pm for interim hearing in relation to the recovery order filed by the mother.

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 Obana & Pedroni is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

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 the first return of an urgent application by the mother for a recovery order in respect of two children: Y, who is 10 years old and X, who is six years old.  The existing consent orders from 2019 provide that the children live with the mother and spend time with the father.  The father has, it appears, lived in City B until recent times.  He came to Darwin in January, he says, with a view to reconciling with the mother. 

3. The father says that Y was able to access or was exposed to his mother’s text messages from late December 2020 to January 2021. Exactly how this occurred was not explained by the father. It is said those text messages are indicative of the mother engaging in prostitution and selling Viagra and Cialis tablets. It is implied by the father that this is indicative of the mother working as a prostitute. 

4. I have read the text messages. They are, in my view, inconclusive about that claim.  They may or may not be consistent with the mother working as a prostitute. I do not know.  However, if they are genuine and they are the mother’s text messages, it is a concern that the 10-year-old child was able to obtain access to these messages because it is entirely inappropriate. 

5. The mother’s evidence is that she is not working as a prostitute and the father’s claims about her are simply denigration of the worst kind. She states the father’s claims are directed at undermining her relationship with the children.  In either case, the allegations are serious, in my view. 

6. I was told by counsel for the mother, without objection, that despite the serious allegations made by the father he has not made any report to Territory Families. This is contrary to what the father says in his affidavit.

7. The response to the notice of risk, which I will direct to be released to the parties, states that on 1 February there was a notification of emotional abuse. This has been investigated or is being investigated by Territory Families and is at an early stage.  I consider that I ought to give the mother a period to respond more carefully to the allegations made by the father.  I am instructed by her counsel that she has seen the text messages and simply denies that they are anything to do with her. 

8. This is not a case where a parent concedes that they engage in prostitution but asserts that the children are protected from exposure to that and that they are otherwise well cared for. This case is somewhat different. This is a mother simply denying that the allegations made by the father have any shred of truth to them at all. The mother also asserts that the text messages are not hers, and, by implication, that the claims against her are fabricated. 

9. In all the circumstances I do not believe the evidence before me permits me to make the recovery order that the mother seeks. I believe the course I should adopt is that the mother be given the opportunity to more completely answer the allegations against her. 

10. Ms Holtham submitted that the allegations, even at their highest, do not indicate that the children are at an unacceptable risk of harm in the mother’s care. I am not convinced that this is the case.  The father’s version of reality is that the child, Y, through accessing the text messages was exposed to his mother working as a prostitute.  I consider that if that occurred it is unacceptable.  It is unclear whether there are other aspects to unacceptable risk. In any event, I cannot make any findings at this interim hearing.

11. I propose to make the following orders:

    (1)an order pursuant to section 69ZW of the Family Law Act 1975 (Cth) directed towards Territory Families;

    (2)an order that the mother has to file any responding material within 14 days of the date of this order;

    (3)an order that the children are to speak to their mother between 6:00 and 7:00pm (NT Time) on Monday, Wednesday and Friday with the mother to make the call via Skype, telephone or any other digital platform; and

    (4)an injunctive order restraining the parents from speaking to the children about these proceedings or any allegations made in the proceedings.

12. I do not propose to make an order that the mother is to speak in English to the children.  The language in which she communicates with the children is a matter for her to decide. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       12 March 2021