PASCOE & O’KEEFE

[2019] FamCA 268

FAMILY COURT OF AUSTRALIA

PASCOE & O’KEEFE [2019] FamCA 268

FAMILY LAW – CHILDREN – Independent Children's Lawyer.

FAMILY LAW – CHILD ABUSE – Allegation.

FAMILY LAW – CHILDREN – Suspension of time with mother.

APPLICANT: Ms Pascoe

RESPONDENT: Mr O’Keefe

FILE NUMBER: CAC 790 of 2015

DATE DELIVERED: 1 May 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 1 May 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid, ACT - on a duty lawyer basis

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. The proceedings are adjourned for interim hearing to 2pm on 3 June 2019. 

2. If the Father seeks to maintain his Application for suspension of the final orders, insofar as they deal with D spending time with her Mother, then he is to file an Application and a single consolidated affidavit from each witness he intends to rely upon at the interim hearing for that purpose by 4pm on 22 May 2019.

3. The Mother is to file any affidavit material and Response to such application by 4pm on 29 May 2019.

4. Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for D, born … 2014, and the Legal Aid Commission of the Australian Capital Territory is requested to provide such representation.

5. The parties are to provide to the Canberra office of the Legal Aid Commission of the Australian Capital Territory forthwith copies of all documents thus far filed by them in these proceedings.

6. Leave is granted to the Independent Children’s Lawyer to issue such subpoena as they consider relevant to the issues before the Court.

7. Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.

8. Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.

IT IS NOTED THAT

1. It is requested that the Legal Aid Office of the ACT act with urgency in affecting the reappointment of the Independent Children's Lawyer in this matter due to the recent allegations of sexual abuse of D that have been made.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 69ZW(1) of the Family Law Act 1975 the New South Wales Department of Family and Community Service (“the agency”) provide to the Canberra Registry of the Family Court of Australia within 14 days all documents and information in the agency’s possession or control about any the following:

   (a)Any notification to the agency of suspected abuse of the child D, born … 2014:

   (b)Any notification of suspected family violence affected the above child;

   (c)Any assessment by the agency of investigations into a notification of suspected abuse or family violence and the findings and outcomes of those investigations;

   (d)Any reports commissioned by the agency in the course of investigating a notification;

2. In complying with this order it is not necessary that material identifying the person who made a notification be produced and to that end it is sufficient to produce documents and information with any material that may identify such a person being blanked out or otherwise made unreadable.

3. At the time of the delivery of the documents to the Court the Agency is to advise the Registry Manager in writing as to whether the documents contain material that may identify a person who made a notification.

4. In the event that the documents or information identifies the person who made a notification no access to the material is allowed pending further order of the Court.

5. In the event that the documents or information do not identify a person who made a notification, the legal representatives for the parties, any self-represented party and any Independent Children’s Lawyer or report writer appointed pursuant to s 62G or Chapter 15 of the Family Law Rules 2004 are authorised to inspect such material subject to the following:

   (a)The material cannot be photocopied otherwise than pursuant to an order of the Court;

   (b)The material may be photocopied on the basis that all copies are to remain within the control of the legal representatives of the parties, the Independent Children’s Lawyer and any report writer with such copies to be destroyed or returned to the Court at the end of the appeal period following the finalisation of the proceedings;

   (c)Any use or disclosure of the information contained within the documents produced, other than use in the conduct of the case before this Court, is not permitted.

6. The parties and the Independent Children's Lawyer are granted leave to issue a subpoena directed to the Child at Risk Health Unit in the ACT in respect of D.

7. Order 4 of the orders made on 21 May 2018 is suspended until further order of this Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pascoe & O'Keefe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 790 of 2015

Ms Pascoe

Applicant

And

Mr O’Keefe

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The matter has come before the Court today by virtue of an Application for Contravention filed by Ms Pascoe on 15 April 2019.  That Application is accompanied by sparse evidential material.  That evidential material points to the Mother not having spent time with her daughter D, the subject of these proceedings, since 25 December 2018.

2. Since 21 May 2018, on the making final orders in this matter, the Father has had sole parental responsibility for D and D has lived with him.  Those orders provided for D to have time with her Mother each alternate weekend and also for portions of the school holidays.  A live issue in those proceedings was as to whether or not D was placed at risk when in the company of the Mother's husband, Mr Pascoe.  The upshot of the determination in that instance was that a balance was struck whereby D would spend the time as described above with the Mother but would live on a full-time basis with her Father.

3. Since the making of those orders there has already been one occasion for the Mother to have the Father dealt with for contravention, that was dealt with in September 2018 and compensatory contact was ordered, along with the requirement that the Father attended a parenting program.  I am not aware of whether or not the Father has complied with that order to attend the parenting program.

4. Despite having dealt with the Father for contravention he has not permitted D to spend time with the Mother since 25 December 2018.  It is now 1 May 2019. 

5. The Father says that he attempted to file an Application to seek a suspension of the orders made in May 2018 but was refused by the counter staff at the Registry.  He subsequently tendered the material that he had sought to file.  What he had sought to file on that occasion was an affidavit accompanied by a number of other documents.  He advised that he was told by the counter staff that he would need to recommence the proceedings.  That was undoubtedly the correct procedural approach to be taken by the counter staff on that occasion.  He has not recommenced the proceedings. 

6. The bulk of the material that he sought to file has now become exhibit F1 in the proceedings.  What that contains are allegations of sexual abuse by Mr Pascoe upon D, founded by the claim made by the Father that D has described such to him.  The Father indicates that he has also taken the step of taking D to the General Practitioner, notes of which are attached, but also taking D to the Child at Risk Health Unit which is a unit located in the Australian Capital Territory that deals in part with allegations of sexual and other abuse of children. 

7. Bearing in mind the need to protect D and the primacy of that consideration in the determination of her best interests over and above the maintenance of meaningful relationship, and bearing in mind that the Mother at this stage declines to have an arrangement in place that would exclude her husband from contact with D, the current circumstances are sufficient to justify a short suspension of the orders made on 25 May 2018 insofar as they deal with the Mother spending time with D, pending the filing of a proper Application and material and responsive material by the Mother.

8. Given the nature of the allegations that have been made, it is appropriate to reappoint the Independent Children's Lawyer who was involved in the final proceedings in May 2018. 

9. Given the involvement of the New South Wales welfare department it is appropriate that a s 69ZW order be directed to that Department.  It is also appropriate that the parties be given leave to serve a subpoena upon the Child at Risk Health Unit so that material may be obtained from them as to their interactions with D, and in particular as to the allegations as to sexual abuse that are now made by the Father. 

10. It is unclear who may act on that leave at this point as the Mother is only represented on a duty basis and the Father is not represented at all.  A request will be made for the Independent Children's Lawyer to be reappointed as a matter of extreme urgency.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 1 May 2019.

Associate:

Date:  1 May 2019