FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pickett & Maxwell [2022] FedCFamC2F 611
File number(s): LNC 56 of 2012 Judgment of: JUDGE TAGLIERI Date of judgment: 13 May 2022 Catchwords: FAMILY LAW – parenting – interim – children living with the father and interim consent orders that children spend time with the mother – where the mother withheld children – where the mother alleges children at risk of psychological and physical abuse in the care of the father and filed urgent interim application – where allegations of family violence between the father and current partner – order that children live with the mother – order that children have electronic communication with and spend supervised time with the father – final hearing expedited Legislation: Family Law Act 1975 (Cth) s60CC(2), s60CC(2A), s60CC(3), s69ZW, s102NA
Criminal Code 1924 (Tas) s50
Cases cited: Beaton & Beaton [2020] FamCAFC 297
Deiter & Deiter [2011] FAMCAFC 82
Goode & Goode [2006] FamCA 1346
Marvel & Marvel [2010] FamCAFC 101
MRR & GR [2010] HCA 4
Division: Division 2 Family Law Number of paragraphs: 62 Date of hearing: 2 May 2022 Place: Hobart Counsel for the Applicant: Mr Kovacic Solicitor for the Applicant: Cann Legal Counsel for the Respondent: Ms Sawyer Solicitor for the Respondent: PWB Lawyers Counsel for the Independent Children’s Lawyer: Mr Trezise ORDERS
LNC 56 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PICKETT
Applicant
AND: MS MAXWELL
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
13 MAY 2022
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.The children X born in 2009 and Y born in 2010 live with the mother MS MAXWELL (“the mother”);
2.The children spend time with the father MR PICKETT (“the father”) via face-time, video-call or telephone for up to one hour on Wednesday and Sunday evenings between 5:00pm and 6:00pm;
3.If practicable, the father have in person time with the children on at least two occasions on weekends for up to three hours on any occasion at dates and time to be agreed between the parties and facilitated at Location B; or in the alternative by a supervisor approved by the Independent Children’s Lawyer.
4.Pursuant to section 68B of the Family Law Act 1975 (Cth) and or the personal protection of the children X born in 2009 and Y born in 2010, the mother MS MAXWELL is restrained by injunction from denigrating or speaking negatively about the father MR PICKETT within the children’s hearing, or allowing the children to remain in the presence of any third party who is doing so.
5.Pursuant to section 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children X born in 2009 and Y born in 2010, the mother MS MAXWELL is restrained by injunction from exposing the children to family violence, and by mandatory injunction is required to remove the children as soon as possible from any circumstance in which family violence arises in their…
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CaseChat Overview and Summary
The court was required to decide whether the children should remain with the mother or return to living with the father. It also had to assess the validity of the mother's allegations of family violence and determine appropriate measures to ensure the safety and well-being of the children. The court had to weigh the evidence presented by both parties, including expert testimony and the children's own statements, to make an informed decision.
After considering the evidence, Judge Tagliari ruled that the children would live with the mother but would have supervised contact with the father. The court found that while there were allegations of family violence, these had not been substantiated to the requisite standard. The judge emphasised the importance of protecting the children from any potential harm and directed that the children would have limited supervised contact with the father, along with electronic communication. The court also imposed injunctions to prevent the parties from engaging in negative communication about each other in the presence of the children and to ensure the children's safety from family violence. The final hearing was expedited to address the ongoing issues between the parties.
The court ordered that the children live with the mother and have specified contact with the father, alongside various protective measures for the children's safety and well-being.
Orders
Orders of the court
LNC 56 of 2012
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR PICKETT
Applicant
AND:
MS MAXWELL
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
13 MAY 2022
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1. The children X born in 2009 and Y born in 2010 live with the mother MS MAXWELL (“the mother”);
2. The children spend time with the father MR PICKETT (“the father”) via face-time, video-call or telephone for up to one hour on Wednesday and Sunday evenings between 5:00pm and 6:00pm;
3. If practicable, the father have in person time with the children on at least two occasions on weekends for up to three hours on any occasion at dates and time to be agreed between the parties and facilitated at Location B; or in the alternative by a supervisor approved by the Independent Children’s Lawyer.
4. Pursuant to section 68B of the Family Law Act 1975 (Cth) and or the personal protection of the children X born in 2009 and Y born in 2010, the mother MS MAXWELL is restrained by injunction from denigrating or speaking negatively about the father MR PICKETT within the children’s hearing, or allowing the children to remain in the presence of any third party who is doing so.
5. Pursuant to section 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children X born in 2009 and Y born in 2010, the mother MS MAXWELL is restrained by injunction from exposing the children to family violence, and by mandatory injunction is required to remove the children as soon as possible from any circumstance in which family violence arises in their presence.
6. Pursuant to section 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children X born in 2009 and Y born in 2010, the parents MS MAXWELL and MR PICKETT are restrained by injunction from discussing parenting issues and these proceedings in the presence or hearing of the children, or allowing the children to remain in the presence of any third party who is doing so.
7. Each parent will keep the other parent informed at all times of their residential address, and mobile telephone numbers, and further will inform the other parent of a change to their contact details within 48 hours of the change.
8. The mother is hereby restrained from removing the primary residence of the children X born in 2009 and Y born in 2010 from her current address at C Street, Town D in Tasmania.
9. The mother and father are to communicate with each other (in respect of the children) either:
(a) By using a communication app agreed by them and in default of agreement the Our Family Wizard app; and the cost of such app is to be shared equally by the parties; or
(b) By text message.
THE COURT NOTES THAT:
A. Pursuant to section 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if he/she holds reasonable belief that the order for personal protection in Orders 4, 5 or 6 have been breached.
B. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment B and these particulars are included in these orders.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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