PENDON & DELCOURT

[2020] FCCA 3470

FEDERAL CIRCUIT COURT OF AUSTRALIA

PENDON & DELCOURT [2020] FCCA 3470

Catchwords:
FAMILY LAW – Parenting – whether unacceptable risk of harm to the children – concerning two children aged seven and 10 years old – where the children live with the mother – where the father seeks to spend unsupervised time with the children – where the mother failed to comply with an order for the children to participate in child inclusive conference – where the views of the children are not known – where allegations of family violence and historical use of illicit substances – where further information required. 

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR PENDON

Respondent: MS DELCOURT

File Number: DNC 189 of 2018

Judgment of: Judge Young

Hearing date: 1 December 2020

Date of Last Submission: 1 December 2020

Delivered at: Darwin

Delivered on: 1 December 2020

REPRESENTATION

Counsel for the Applicant: Ms Czislowski

Solicitors for the Applicant: Ward Keller Lawyers

Counsel for the Respondent: Ms Cooper

Solicitors for the Respondent: Maley Barristers & Solicitors

ORDERS

IT IS ORDERED BY CONSENT:

1. That the parties complete three random chain of custody urinalysis testing at the request of the other parties' solicitor upon the following conditions.

   (a)Requests may not be more frequent than every 28 days;

   (b)The party must undertake the urinalysis within 24 hours of the request being made; and

   (c)The party must provide the results to the other party's solicitor within 48 hours of the results being available.

2. That the parties shall not drink alcohol to excess when the children X, born in 2010 and Y born in 2013 (collectively “the children”) are in their care and in the event either parent intends to drink to excess on any occasion they shall make appropriate arrangements for the child to be cared for by the other party, a family member or friend.

3. That the mother shall post the father a copy of the child Y’s school reports.

4. That all communication between the parties shall be in writing via text or email, except in the case of an emergency when communication may be by telephone.

5. That the parties advise each other of any change to their telephone numbers or residential address or postal address within 48 hours of such change occurring.

6. That each parent inform the other parent as soon as practicable of any medical emergency.

7. That each party enrol in a parenting skills course and provide confirmation of their enrolment and a certificate of completion to the other parties’ solicitor within 7 days of such enrolment and completion.

8. That the parties be restrained and an injunction issue restraining them, from denigrating the other parent in the presence or within the hearing distance of the child.

9. That the parties encourage and not undermine the children’s relationship with the other parent.

10. That the parties be restrained and an injunction issue restraining them from:

    (a)Exposing the children or allowing the children to be exposed to family violence; and

    (b)Exposing the children to illicit drug use or allowing the children to remain in the presence of persons consuming illicit drugs.

11. That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the children X, born in 2010 and Y born in 2013 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 child's interests.

12. 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.

13. 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 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

14. 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.

15. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child/ren of the relationship X, born in 2010 and Y born in 2013 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 31 May 2021. NOTING subject to the discretion of the family consultant it is hoped the children attend upon the family consultant in person.

16. That the family report to deal with the following matters:

    (a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

    (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

    (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

17. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

18. That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

19. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

20. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

NOTING:

A.    At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B. Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.    In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 12 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

IT IS FURTHER ORDERED BY CONSENT:

1. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

2. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

3. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served prior to the family report interviews as follows:

   (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

   (b)annexing such material as is considered relevant, with

   (c)the affidavit to be paginated, indexed and exhibits tagged.

AND THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the children shall spend supervised time with the father at ‘B Contact Centre’ City C from 3pm until 4pm every Tuesday and Friday, or such other times that can be accommodated by ‘B Contact Centre’.

2. That the children shall have telephone contact with the father every Sunday from 6pm for no less than 10 minutes and longer if the children are engaging in the call, and for the purposes of this order, the father is to place the call and is permitted to speak to both children.

3. That the mother is to ensure that both children attend any interviews at which they are required, including any interviews with the Family Consultant and Independent Children's Lawyer.

4. That the father reimburse the mother for any negative drug tests undertaken pursuant to Order 1 herein.

5. Pursuant to section 69ZW of the Family Law Act 1975 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 2010, and Y, born in 2013;

   (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.

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

7. The matter be adjourned for a trial call over on 17 June 2021 at 10:30am.

8. That the Independent Children's Lawyer has liberty to apply at short notice.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 189 of 2018

MR PENDON

Applicant

And

MS DELCOURT

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 matter concerning two children, Y, who is seven, almost eight years old, and X, who is 10 years old and will turn 11 later this month.  Orders were made on 17 September 2018 in relation to Y, essentially final orders that provided for her to spend time with her father.  The position of X was left unresolved at that stage and I note the orders said that there was to be an interim hearing in relation to X. 

3. X, I might say, is not the biological child of the father but I note that according to the father’s affidavit, at least, X was only one year old when the mother and the father began the relationship, and there are other indications that X has a good relationship with her father.  However, I do not know in any detail what the nature of the relationship with X and the respondent or Y is, suffice to say that the mother does not particularly oppose Y spending time with the father but she has objected to X spending time with the father on the basis that he is not X’s biological father. 

4. Regrettably, there was an order for a child inclusive conference made, which was held on 4 November 2020, and the mother failed to comply with the order to take the children to the conference, which has had the effect of depriving me of the benefit of knowing what the views of the children are in a case where there is a great deal of conflict, serious allegations of threats of violence against the mother by the father made to the children, allegations of the father’s drug use, including smoking cannabis in front of the children and so on. 

5. I was hoping that a child inclusive conference would give me the children’s perspective on some important questions of risk, but I have been deprived of the assistance of knowing their views in circumstances that have not been explained by the mother.  Her recently filed affidavit does not address the issue of why she did not comply with orders and, in my view, in those circumstances I am entitled to draw the inference that any explanation would not assist the mother.  There are other indications that the mother is reluctant or unwilling or unable to engage in the process of litigation. 

6. It was necessary to make an order that she attend Court in person because she had failed to appear previously and I made an order that she would be arrested if she did fail to appear, so there is some history of a non-engagement by the mother in the processes of the Court and processes calculated to obtain information and make a decision about the best interests of these two children.  All in all I am not satisfied that I have sufficient information to make any informed decision at the moment in the absence of knowing the wishes of these children of reasonably mature age, particularly X. 

7. I think, in the circumstances and considering the allegations, I might say there are allegations that appear to have some substance, particularly as there is a history of family violence, and I note that the father told the family consultant that he was incarcerated for three months in 2014 as a result of assaulting the mother, so there is a history of family violence.  In addition both parties acknowledge historical use of methamphetamine and the father says that he continues to use cannabis.  Against that background, I think some caution is required in assessing questions of risk and I am satisfied there is unacceptable risk in making the orders the father seeks, which is for unsupervised time with these children at this stage.  I would need more information before I make such an order. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 13 January 2021