PARKMORE & MIGLIO

[2020] FCCA 3568

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARKMORE & MIGLIO [2020] FCCA 3568

Catchwords:
FAMILY LAW – Parenting – concerning two children aged four and seven – where the applicant is not the children’s mother – where the children have previously lived with the applicant – where the children live with the respondent – where whether the children are related to the respondent is unclear – where the applicant alleges the children are at risk of harm of physical violence – where child welfare authorities have not acted on the applicant’s report that the children are at risk of harm – where not satisfied that the children are at unacceptable risk of harm.

Legislation:

Family Law Act 1975 (Cth), ss.60I, 69ZW

Applicant: MS PARKMORE

Respondent: MS MIGLIO

File Number: DNC 707 of 2020

Judgment of: Judge Young

Hearing date: 22 December 2020

Date of Last Submission: 22 December 2020

Delivered at: Darwin

Delivered on: 22 December 2020

REPRESENTATION

The Applicant: On her own behalf

Counsel for the Respondent: Ms Gray

Solicitors for the Respondent: Grays Legal NT

ORDERS

UPON NOTING:

That the applicant was advised to have regard to section 60I of the Family Law Act 1975 regarding the mediation requirement.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the respondent file and serve a Response, affidavit in support and notice of risk within 21 days.

2. That pursuant to s.11F of the Family Law Act 1975, the parties and the children X born in 2013 and Y born on date unknown in 2016 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Darwin on 15 April 2020 at 2.15pm, 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 and about interviewing the younger child.

3. 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.

4. That pursuant to section 69ZW of the Family Law Act 1975 the Territory Families 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 2013 and X born on date unknown in 2016;

   (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 in the course of investigating any such notifications.

5. That neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon Territory Families without the Courts leave.

6. That the matter be adjourned to 5 May 2021 at 2.15pm for interim hearing in relation to who the children live and spend time with.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 707 of 2020

MS PARKMORE

Applicant

And

MS MIGLIO

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 application by Ms Parkmore.  Ms Parkmore seeks orders, essentially, in relation to two children: X, who is seven, and Y, who is four years old.  Both children are Aboriginal children.  The children are presently living with Ms B, or Ms C, there seems to be some question about the respondent’s proper surname.  The children have, in the past, been involved with Territory Families, but it appears to be the agreed position that there is no current order.  It is unclear to me whether or how the respondent is related to the children.  As I understand Ms Parkmore’s affidavit, she is not the children’s mother, while the children have been placed with her at some point, in circumstances which are not entirely clear.

3. Ms Parkmore makes allegations in her affidavit and I will read the relevant paragraph:

   X said to me many times this year, Mum –

   a reference to Ms Parkmore, apparently –

   I want to live with you all the time.  Mum, why can’t I live with you all the time and go to D School?  You are my best Mum.  You have a pretty face.  You care about me and you do things for me.  I don’t want to live at Ms Miglio’s.  Ms Miglio hits me all the time, and sometimes hits Y and E too.  They swear all the time and I don’t like swearing and I get bullied by the kids.  But please don’t tell Ms Miglio I said this, because Ms Miglio gets angry.

   And then goes on to talk about the verbal denigration of the applicant by the respondent, as reported by the children.

4. Ms Parkmore is a legal professional, apparently, but does not practise in this jurisdiction.  Her application appears, to me, to show her inexperience in this jurisdiction.

5. She had sought an urgent listing today in the mention list, the last hearing day available before Christmas.  She sought an urgent listing on the basis that the children were at risk of harm of physical violence.  The allegation in the affidavit is vague, in my view, and lacking in specifics.  I asked Ms Parkmore if she had reported the matter to Territory Families and she said she had in late October 2020.  I asked her when it became apparent that Territory Families did not wish to act on the matter.  She said that that was apparent almost from that time in October.  It is therefore somewhat surprising that, if it was apparent to Ms Parkmore the children were at risk of harm and there was urgency about the matter, that she did not apply to this Court until 14 December 2020 for orders.

6. As pointed out to Ms Parkmore, Territory Families is the organisation that has primary responsibility for investigating whether children are at risk of harm or neglect under the relevant child welfare legislation.  This Court does not have the means to make investigations of allegations of the kind Ms Parkmore raises.  It depends very much on the evidence from organisations such as the police and Territory Families or, usually, its own inquiries made through the process of preparation of family reports or child memorandums.  That is the primary means that this Court has of investigating and gathering information.  On the return of an urgent application where vague allegations are made, this Court simply does not have the capacity to act unilaterally or hastily in the way Ms Parkmore is urging the Court to do and nor should it, in my view.

7. I am not satisfied that the children are at unacceptable risk of harm and I do not propose to make the orders that Ms Parkmore seeks.  The pressure of business in this Court means, of course, that there will be a delay before the matter can be dealt with.  That is the nature of this jurisdiction, unfortunately.

8. I also pointed out to Ms Parkmore that she had not, in my view, complied with the requirements of section 60I of the Family Law Act and I have strongly urged her to have regard to that section of the Act and give it appropriate consideration, and I will note accordingly.

9. So the orders I propose to make are an order pursuant to section 69ZW for the return of any child welfare material held by Territory Families, for the preparation of a child inclusive memorandum, with the family consultant to have any discretion about interviewing the youngest child. Secondly, I am going to adjourn the matter for interim hearing to 5 May 2021. I have also overlooked that the respondent is to file and serve a response affidavit in support and notice of risk within 21 days

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 18 January 2021