Small & Pittman
[2024] FedCFamC2F 1884
•12 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Small & Pittman [2024] FedCFamC2F 1884
File number(s): MLC 12252 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 12 December 2024 Catchwords: FAMILY LAW – Parenting – Where final orders already in place – Where mother has unilaterally withheld child against final orders – Where mother has indicated intention not to be involved in proceedings – Decision to proceed undefended – Where father and Independent Children’s Lawyer seek final orders to remain in place – Final orders reinforced – Orders and reasons for judgment to be provided to Child Protection for any future involvement. Division: Division 2 Family Law Number of paragraphs: 12 Date of hearing: 12 December 2024 Place: Melbourne Counsel for the Applicant: Mr Burns Solicitor for the Applicant: Bowlen Dunstan and Associates The Respondent: No appearance Counsel for the Independent Children's Lawyer: Mr Radich Solicitor for the Independent Children's Lawyer: Melanie Wyatt Family Law ORDERS
MLC 12252 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SMALL
Applicant
AND: MS PITTMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
12 DECEMBER 2024
THE COURT ORDERS THAT:
FINAL ORDERS:
1.The Final Parenting Orders of 6 March 2023 (annexed as annexure “A” to these orders) in relation to the child, X born in 2013 (‘the child’) remain in full force and effect subject to the minor variations in Orders 1-5 of the Orders of 8 August 2024 (annexed as annexure “B” to these orders) noting the correction of the numbering from the original Orders.
2.Orders 1-5 of the Orders of 8 August 2024 remain in full force and effect.
3.The Independent Children’s Lawyer do all acts and things to cause and ensure that a copy of these sealed orders and ex tempore judgment delivered this day (when settled) be provided to the Department of Families, Fairness and Housing (‘Child Protection’) for the purpose of these documents being readily available in the event there is further involvement by Child Protection.
4.The Independent Children’s Lawyer serve a copy of these sealed orders to the Respondent, Ms Pittman, as soon as practical via email.
5.The Independent Children’s Lawyer be and is hereby discharged 29 days after these orders.
6.All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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 Annexure A 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge O’Shannessy
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
Decision to proceed in the absence of the Mother
The first issue and duty for me is to determine whether I should hear the matter today in the absence of the respondent mother, Ms Pittman (‘the Mother’). I am satisfied that it is appropriate that I proceed to hear the matter in the absence of the Mother this day. The next issue for me is to determine whether I should proceed with the matter, what is known as undefended. That is, relying on the case and evidence of the applicant father, Mr Small (‘the Father’), without hearing further from the Mother. I am satisfied that it is appropriate that I do that and, apart from the evidence of the Father, I also take into account and rely upon the information in the section 67ZBE report and the Child Impact Report.
Background
The matter of Small & Pittman concerns the parenting arrangements for young X, who is now 11. There had been final orders made on 6 March 2023 when it was hoped, at that time, to settle X’s living arrangements. What occurred in 2024 was that, on an occasion where X’s mother was to spend time with him over a weekend pursuant to the 2023 orders, she simply did not bring X back. X’s father made application to the Court for orders that would ensure that the Mother returned X to his care.
The 6 March 2023 orders provided that the parents would have shared responsibility for long-term decisions concerning X and that X would live with his father and spend regular time with his mother. At that time, the Mother cared for two of X’s half-brothers: B and C. In May 2024, the Mother not only did not return X to his father’s care in accordance with the applicable court orders, but chose to enrol him in another school. The Father navigated the procedural matters in the court, and the Mother was ordered to return X to his father’s care, or permit him to be collected that afternoon, the day of the court hearing.
The Father attended and X was not handed over. The matter returned to court a couple of days later, and unfortunately, it was necessary that a recovery order be made. The Victoria Police then executed the recovery order and X returned to his father’s care. Thereafter, it appears undisputed that X has remained living with his father and spending the court-ordered time with his mother. The orders provide that the Mother was to collect X from school on a Friday on her weekend, but a recent practice has developed where the Father actually delivers X to his mother’s care.
Orders sought
The Independent Children’s Lawyer (‘ICL’) in the case seeks that the existing orders of 6 March 2023 remain in full force and effect, subject to some minor variations as were put in place by orders 1 to 6 of the orders of 8 August 2024. Counsel for the Father seeks the same orders. The Mother did not appear at court this day and has, I am satisfied, communicated to the lawyers involved – being the ICL and the Father’s lawyers – that she was aware of this court hearing, but did not intend to attend.
Reports concerning the family
The Mother did attend and participate in the Child Impact Report that the court ordered, at public expense, to attempt to work out what were the best arrangements for X. That report included the following observations:
8. [X] attended the Melbourne Registry in the presence of [Mr Small]. He was observed to be relaxed and comfortable in the presence of [Mr Small], and they appeared to engage and interact with each other easily. Following introductions, [X] separated with ease from [Mr Small], and met with the writer independently.
…
10. [X] was well presented, friendly and confident, describing himself as a comedian. Whilst he was comfortable to engage with the writer informally and through games, he was hesitant and unwilling to discuss matters concerning his family life or his life experiences. [X] informed the writer his response would be “I don’t know” or “I forget”. He referred to his experiences as “secret family bizz”, and he would often refer to this through the conversation. He was reluctant and disinterested to share his recent experiences of residing in the care of his mother and returning to the care of his father. He stated he feels happy and excited to see both of his parents.
11. [X] presented with some confusion regarding schools, referring to attending both [D School] and [E School]. He reported he was in year 5, and had recently attended [D School], but was excited to return to [E School] for term 3. [Ms Pittman] had explained she had enrolled [X] at [D School] as “he loves going to school” so she had viewed it as important for him to attend whilst he was in her care. She displayed limited insight into the impact of changing schools, instead shared her view of “[X] just loves school” implying it was irrelevant as to which school he attends.
12. [X] did not raise any concerns about time with either parent, and reported he enjoys spending time in the care of each parent. He expressed no views regarding his living arrangements and was not familiar with existing parenting arrangements. [X] presented as apathetic towards his life experiences.
…
27. [Mr Small] presented with an awareness of [X] and his needs. He was positive regarding the relationship between [X] and [Ms Pittman], and despite the recent dispute he is hopeful of returning to previous parenting arrangements, placing importance on [X] spending time with [Ms Pittman]. [Mr Small] was reflective of his parental choices and behaviours that have contributed to [X]’s experiences, and he appears willing to engage with supports that will further enhance his parental capacity. [Mr Small] appears to be engaged with health professionals for [X], and he is encouraged to inform and share information with [Ms Pittman] regarding [X]’s treatments and progress.
28. [Ms Pittman] presented as reserved, and it appeared she was withholding her views on the current situation. It was noted by the writer this presentation was similar to [X]. She did not provide a proposal and appears to rely on the wishes of [X]. However, she was not able to articulate what [X]’s views of the situation might be. [Ms Pittman] displayed little insight into the impact of her recent decisions to withhold [X] and unilaterally change his school.
…
Also before the Court and in evidence before me is what is known as a section 67ZBE order report which I will refer to in these reasons as ‘the detailed Child Protection report’. Helpfully, Child Protection has provided to the Court a very detailed history and account of Child Protection involvement in X’s life. The detailed Child Protection report includes the following list of interactions of Child Protection with this family:
1. September 2013 (Intake- [X], [B] and [C])
2. March 2015 to April 2015 (Intake- [X], [B] and [C])
3. April 2015 to August 2015 (Protective Intervention- [X], [B] and [C]
4. April 2016 to May 2016 (Intake- [X] and [B])
5. June 2016 to December 2016 (Protective Intervention- [X], [B] and [C])
6. February 2017 to March 2017 (Intake- [X], [B] and [C])
7. April 2017 to September 2018 (Protection Order- [X] and [B])
8. March 2019 (Intake- [X] only)
9. March 2019 to June 2019 (Intake- [X] only)
10. August 2019 (Intake- [X], [B] and [C])
11. September 2019 (Intake- [X] only)
12. June 2020 to July 2020 (Intake- [X] only)
13. September 2020 to September 2020 (Intake- [X] only)
14. October 2020 (Intake- [X] only)
15. October 2020 to November 2020 (Investigation and Assessment- [X] only)
16. February 2021 to March 2021 (Intake- [X] only)
17. November 2021 to December 2021 (Intake- [X] and [B])
18. December 2021 to January 2022 (Intake- [X] only)
19. May 2024 (Intake- [X] only)
It is clear enough from the detailed Child Protection report that when X was a baby, his parents had an unfortunate involvement with drugs and in particular, illicit drugs. It is clear enough now that the Father has sensibly renounced such involvement with that substance. His continued abstinence from illicit drugs or other drugs of addiction are essential for X’s welfare.
The Mother’s mental health had deteriorated in 2015 and 2016, and she was an inpatient at a psychiatric facility for some time. The end result of that was that X was placed by Child Protection in the care of the Father after he had been in the care of his maternal grandmother for some time. In those circumstances, and the Father continuing to care for X, it is unsurprising that the orders of 6 March 2023 were made, confirming X to be in the care of his father. From my perspective, there remains a risk that the Mother will again not return X to his father’s care, and again disrupt his life and education.
Decision and reasons to be provided to Child Protection
I have raised with the parties who have appeared this day whether or not these reasons and the orders that I make should be made available immediately to Child Protection so that they are available on the file in the event that there is further Child Protection involvement, so that they can be readily accessed. It appears to me that the Child Protection officer who gets the call to immediately assess X’s welfare does not have a method of automatically accessing these orders and these reasons. There is a risk that every time there is an involvement of Child Protection, there is a sort of ground zero approach whereby the matter is investigated all over again. That is less likely than previously, given that I would expect Child Protection officers to be able to ascertain and review the detailed Child Protection report of 27 June 2024.
Nonetheless, I am satisfied it is in X’s interests and will assist Child Protection in the event there is further involvement, that these reasons, as well as the orders that I make, should be made available to them so that they can be readily accessed by the department – that is, Child Protection. Counsel for the ICL and counsel for the Father seek that the form of the orders that I make be simply a statement that the orders of 6 March 2023 and paragraphs 1 to 6 of the orders of 8 August 2024 remain in full force and effect, and I will do that, and as a matter of form, have those orders attached to the two orders that I will make as an appendix. Hopefully it is not necessary for anyone to have to access these orders again and X’s life can remain with some stability.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 15 January 2024
0
0
0