Patchett & Tapley
[2023] FedCFamC2F 737
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patchett & Tapley [2023] FedCFamC2F 737
File number: DNC 234 of 2023 Judgment of: JUDGE YOUNG Date of judgment: 30 May 2023 Catchwords: FAMILY LAW – application for recovery – where there is a long history of family violence between the parties – where the father has alleged two of the children are not his – where the children have alleged they have been hurt by their mother’s partner – where there is an unacceptable risk of harm to the children in the mother’s care - the application is dismissed. Division: Division 2 Family Law Number of paragraphs: 9 Date of hearing: 30 May 2023 Place: Darwin Counsel for the Applicant: Mr Thompson Solicitor for the Applicant: Thompson and Associates Counsel for the Respondent: Ms Gray Solicitor for the Respondent: Grays Legal NT ORDERS
DNC 234 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PATCHETT
Applicant
AND: MR TAPLEY
Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
30 MAY 2023
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.The mother’s Application in a Proceeding for a recovery order filed on 15 May 2023 be dismissed.
The W born in 2018, X born in 2013, Y born in 2010 and Z born in 2008 live with the father.
2.The children spend time with the mother every alternate weekend, beginning this weekend if the parties agree, commencing after school Friday until before school Monday on the condition that Mr B is not present and the children do not come into contact with him.
3.The children have telephone communication with the mother every Wednesday between 6 and 8pm and the father is to do what is necessary to ensure the call takes place.
4.Pursuant to s 68L(2) of the Family Law Act 1975, the interests of the children W born in 2018, X born in 2013, Y born in 2010 and Z born in 2008 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the children's interests.
5.That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.
6.That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and / or copy any material in accordance with Rule 6.37 of the Federal Circuit and Family Court of Australia (Family Law) Court Rules 2021 subpoenaed by the parties and released by the Court up to that date.
7.That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.
8.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and Child 1 W born in 2018, Child 2 X born in 2013 Child 3 Y born in 2010 and Child 4 Z born in 2008 (“the children”) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (“the Court Child Expert”) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
9.Part 1 of the event will occur by video call, using Microsoft Teams, 10 July 2023, with:
(a)The Applicant to attend at 9.00am; and
(b)The Respondent to attend at 10.30am.
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
Part 2 of the event will occur in person at the Darwin Registry at Darwin Supreme Court Building, on the morning 12 July 2023. Specific details regarding the attendance of the parties and children on this date will be provided to the parties in Part 1 of the event.
10.Each party will do all things necessary to ensure the children attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
11.The parties and the children shall continue to attend at such times, dates and places as the Court Child Expert may advise.
12.Not later than 4.00pm on Friday 16 July 2023 the parties must provide their contact telephone numbers and email addresses to [email protected].
13.Pursuant to order 9 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those views;
(d)the impact of the issues/dispute before the Court on the children;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the children.
14.Upon completion, the Child Impact Report shall be provided to the Registrar for release to the parties, including by way of order made in Chambers.
15.The Court Child Expert shall be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)Material produced by a Child Protection authority pursuant to subpoena or a Section 69ZW order made in these proceedings;
(b)Material produced by a Police Service pursuant to subpoena or Section 69ZW of the Family Law Act 1975 (Cth) made in these proceedings;
(c)Any other relevant material presently before the Court in admissible form.
16.These proceedings are adjourned for directions before Senior Judicial C on 26 July 2023 at 12.00pm.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Patchett & Tapley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge Young
This is an interim application for a recovery order in respect of four children: Z, 14; Y, 13; X, 9; and W, 4. The children have been living with their mother and spending time regularly with their father pursuant to informal arrangements between the parents. That has been the case since at least 2021, when it appears from the material that there was a final separation between the parties. There is a long history of allegations of family violence between these parties, though there does not appear to be anything particularly recent involving the father and the mother together.
There is evidence in the material of some extremely offensive racially denigrating language used by the father against the mother, which the father acknowledges and says he regrets. He said he was drunk at the time, though that, in my view, is not any kind of excuse for the foul language used. There are allegations by the mother that the father has in the past threatened suicide and that would appear to also be borne out by some of the text messages, particularly from around about 2021, though it is a little bit unclear what the dates are but I take it that those were produced at a time of heightened conflict between the parties around the time of their separation.
The other issues raised by the mother is that the father has apparently asserted – and this is apparently borne out by his affidavit material – that two of the children are not his. It is not appropriate for me to go into any detail about that, certainly at this stage of the proceedings, because on whatever conclusion I reached at an interim stage of hearing, it would not be appropriate to separate these children from each other, and indeed, on being queried about his instructions, Mr Thompson confirmed that those were his instructions as well.
The precipitating event behind this application occurred on 24 March 2023 when it is alleged that a Mr B, who apparently is the partner of the mother, assaulted the child X, who was then eight. I gather the children told their father about this incident and the father reported the matter to the police and the child welfare authorities. There have been a number of reports to the child welfare authorities, including this one, but none of those have resulted in any substantiated allegation, though apparently in respect of the incident on 24 March, the child welfare authorities finalised an investigation but no outcome was recorded according to the summary I have received. Nevertheless, the summary sent to the Court by Territory Families said that Territory Families have current concerns about the children.
The incident resulted in the police interviewing each of the children. What was alleged was that on that date, Mr B pushed X in the home of the mother while X was walking up the stairs carrying books. The incident was the subject of interview.
As far as I can see, the event is alleged to have occurred on 24 March, though I note from the police subpoena records there is also a confusing reference to 18 April. It is unclear to me precisely when this alleged assault took place. But the child, X, was allegedly walking upstairs carrying books and fell, or tripped, or dropped some of the books and was then yelled at by Mr B and pushed, and either fell on the stairs or something else. He allegedly threw the books at her, causing one of the books to strike X in the head and causing her to feel pain and cry.
The police subpoena records disclose an interview of each of the children, apparently, and more particularly an interview with X, and there is a transcript of the entire interview in the police material. It is clear enough from that interview that X made very specific allegations that she had been pushed, yelled at, and indeed hurt by Mr B in the incident that I have referred to. She goes on to say in the interview that Mr B is a frequent consumer of cannabis in the household and if he is unable to obtain cannabis he is bad tempered with the children. Each of the children told the police that they were scared in their mother’s house and did not want to return to their mother’s house because of Mr B’s presence. Obviously, on an interim hearing of this kind, I cannot make findings about those matters and I do not. However, I consider that given there are plausible and detailed allegations made by a child supported or corroborated by other children: the child’s sisters, who are older, I consider that until that matter is more carefully investigated there is presently an unacceptable risk of harm in the children returning to live in their mother’s household while there is some possibility that Mr B will be present.
I reach that conclusion also because I have considered the mother’s affidavit. She says in her affidavit that she was present throughout this incident and it is untrue, that is, there was no assault by Mr B, the child was not hurt, and by her counsel today, she alleges that the children were “put up to it” by the father. In those circumstances, I consider that there is a question mark about the mother’s protective capacity at this stage. The application for recovery order is dismissed.
Disappointingly, the legal representatives have not talked before the matter in any significant way before the matter came on today. Legal practitioners practising in this jurisdiction have an obligation to attempt to either settle matters or to agree on issues that can be agreed upon before coming into Court. As far as I can see, neither practitioner has attempted to do that today. Consequently, I asked what time arrangements each party sought, and, not surprisingly, there is no agreement. The mother says that there ought to be time each weekend. The father says each alternate weekend from Friday to Monday. I know nothing from the mother’s affidavit about Mr B’s movements. I am told from the bar table, effectively, that he is a fly-in-fly-out worker but I do not know when he is likely to be present, if he is likely to be present, or anything of the kind.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Young. Associate:
Dated: 30 May 2023
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