Pender and Percival

[2016] FamCA 1185

FAMILY COURT OF AUSTRALIA

PENDER & PERCIVAL [2016] FamCA 1185

FAMILY LAW – CHILDREN – with whom a child shall live

APPLICANT: Ms Pender

RESPONDENT: Mr Percival

FILE NUMBER: CAC 2052 of 2016

DATE DELIVERED: 20 December 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 20 December 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Heinze, Infinity Legal

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. Until further order the children, B, born … 2005 (B), and C, born … 2011 (C), (the children) live with the applicant mother.

2. Until further order the applicant mother have sole parental responsibility for the children.

3. Until further order the respondent father is restrained from removing the children from the applicant mother’s care unless otherwise agreed in writing or ordered.

4. The respondent father is hereby restrained from being within 100 metres of the children, except pursuant to an order made under the Family Law Act 1975.

IT IS NOTED THAT

1. The above orders in relation to the father being restrained in respect of the children are injunctions made pursuant to s 68B of the Family Law Act 1975. If a police officer believes on reasonable grounds that the person against whom the injunction is directed has breached the injunction by:

   (a)       Causing or threatening to cause bodily harm to the protected persons; or

   (b)Harassing, molesting or stalking those persons

   the police officer may arrest the respondent without warrant pursuant to s 68C of the Family Law Act 1975.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 62G(2) of the Family Law Act 1975, the parties and the children of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services, on a date and at times to be advised for the purposes of the preparation of a Family Report and for that report to consider in particular:

   (a)The benefit to the children of having a meaningful relationship with both of the children’s parents;

   (b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence,  including an assessment of any such risk that the children may be exposed to and the impact both in the short term and long term in the event that the children are exposed to abuse, neglect or family violence;

   (c)The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:

   (i)Either of the children’s parents; or

   (ii)Any other child or other person (including a grandparent or other relative of the child including a sibling or step-sibling) with whom the children have been living;

   including an assessment of the nature of the children’s present and prospective attachments in terms of the orders sought by each of the parties;

   (d)The capacity of:

   (i)Each of the children’s parents; and

   (ii)Any other person (including any grandparent or other relative of the children)

   to provide for the needs of the children, including emotional and intellectual needs and any circumstances that may diminish that capacity by reason of physical disability, mental disability or risk of abuse;

   (e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the Family Consultant thinks are relevant;

   (f)If the children are Aboriginal or Torres Strait Islander children:

   (i)The children’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)The likely impact any proposed parenting order will have on that right.

   (g)The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents;

   (h)Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children;

   (i)Any other fact or circumstance that in the opinion of the Family Consultant is relevant.

2. The Family Consultant is granted leave to inspect all documents produced in these proceedings on subpoena.

IT IS NOTED THAT

1. The mother seeks that the father undergoes a psychiatric examination by an accredited psychiatrist.  The father raises issues as to the mother’s mental health and seeks her to also be psychiatrically assessed.  At this stage of the proceedings it is premature to make an order for such assessment given that, in particular, arrangements for the funding of such an assessment are not yet available.  The father does not necessarily oppose himself being assessed.  This is a matter that will need to be revisited at a later occasion.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 69ZW the Chief Executive Officer of the ACT Office of Children, Youth and Family Support (“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 children, B, born … 2005, and C, born … 2011, or either of them:

   (b)Any notification of suspected family violence affecting the above children or either of them;

   (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 may only 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;

   (b)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. In the event that the mother, by virtue of the interim order for sole parental responsibility, obtains passports for each of the children, such passports are to be lodged in the Canberra Registry of the Family Court of Australia within 48 hours of their receipt and are not to be removed from the Registry without further order of a Judge of this Court.

7. I grant leave to the parties to issue subpoenas to:

   (a)ACT Corrections (noting this may not be the correct name for Corrective Services in the Australian Capital Territory);

   (b)       The D Centre;

   (c)       ACT Mental Health;

   (d)The children’s school, Suburb E School, for the purpose of obtaining the children’s attendance records.

8. I give each of the parties leave to issue up to three further subpoenas without further leave of the Court.

9. The matter is relisted for a period of one hour on 16 February 2017 for further interim hearing at 12pm. 

10. Should the parties wish to rely on material on that day, it is necessary that each of them file and serve a single consolidated affidavit from each witness they intend to rely upon no later than 2 February 2017.

IT IS NOTED THAT

1. If material is not filed in accordance with these directions the material may not be available for consideration at the interim hearing.

2. I direct the parties to include in the material to be filed on 2 February 2017 information that relates to the availability and suitability of supervision facilities should an order for supervised time be made.

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 Pender & Percival 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 2052 of 2016

Ms Pender

Applicant

And

Mr Percival

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are interim proceedings in which there is limited information and limited ability to make findings.  The proceedings were commenced on 15 December 2016. The father was released from custody on that day and has had limited opportunity to answer the proceedings.  As yet, he has been unable to file any material in support of his case.  Acknowledging these matters also requires an acknowledgment that whatever findings are made are on the basis that the material is far from complete at this point. 

2. In examining the evidence and concluding what orders are to be made, the primary consideration is the best interest of the children in these proceedings.  In concluding what is in their best interests in relation to what are going to be temporary orders, of particular interest are the primary considerations. 

3. The primary considerations are the benefit that each of the children may receive from a meaningful relationship with each of their parents and also the need to protect each of the children.  The Act compels me to give priority to the second of these two considerations. 

4. I will firstly deal with the question of parental responsibility.  The mother seeks sole parental responsibility, which is a position that the father resists.  It is unclear at this stage what will be in the children’s interests in the longer term in respect of how parental responsibility might be divided.  However, at present, there are severe constraints on the capacity of the parties to interact.  There is a likely history of severe family violence by the father upon the mother.  There is a recent history of the father being in custody in relation to an alleged breach of a Territory protection order.  The father has previously served imprisonment in respect of family violence upon the mother.  The father has recently been arrested in respect of a beach of the domestic violence order, a breach which appears apparent on the annexures to the wife’s affidavit, which shows the sending of a text message apparently in breach of the domestic violence order.  At this stage, it is premature for me to make a finding that it would constitute a breach, however, I note that the breach at present appears to be apparent absent further explanation.  I accept that the father is not in a position at this point to give that further explanation because of how quickly the proceedings have come before me.

5. In the circumstances of this case, it cannot be expected that it is in the interests of the children to force communication between the parties to make decisions in relation to the children.  The mother is currently the primary carer. I understand that the father complains that this has been brought about otherwise than by his agreement and in circumstances that he believes are manipulative of the process.  For whatever reason, he has not seen his children since September 2016 on Father’s Day, although the circumstances in relation to that cessation of time remain unclear.  However, given the current circumstances in the short term, pending further order from the Court, it is appropriate that the mother, as the current primary carer of the children, have sole parental responsibility.  Secondly, and further also being in the short term, with pending criminal proceedings in relation the breach of domestic violence order, recent incarceration of the father and at least a recent history of the mother being the primary carer for the children, it is appropriate that they live with her until the matter can be considered on further evidence.

6. Further, given the history of family violence directed towards the mother, given that there are proceedings in place for the breach of the protection order and the presence of allegations that are as yet both untested and unanswered by the father, it is appropriate that limited restraints be placed in support of the protection of the children, such as to prevent their removal from the mother’s care and at present to prevent the father approaching them until the matter can be given further consideration.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 20 December 2016

Associate: 

Date:  21 December 2016