TALBERG & PANNELL

[2020] FCCA 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

TALBERG & PANNELL [2020] FCCA 2019

Catchwords:
FAMILY LAW – Parenting – application for recovery order – where applicant mother fails to disclose relevant information – application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS TALBERG

Respondent: MR PANNELL

File Number: DNC 332 of 2020

Judgment of: Judge Young

Hearing date: 26 June 2020

Date of Last Submission: 26 June 2020

Delivered at: Darwin

Delivered on: 26 June 2020

REPRESENTATION

Counsel for the Applicant: Ms Murray

Solicitors for the Applicant: Northern Territory Legal Aid Commission

The Respondent: In person

ORDERS

1. That the children X born in 2011, Y born in 2012 and Z born in 2016 live with the father.

2. That the father is to ensure that the children attend school unless a child is sick in which case the other children are to still attend school and the father provide the mother with a medical certificate setting out the reason for the sick child’s non-attendance at school with 24 hours of any such non-attendance.

3. That an injunction be granted and the mother be restrained from consuming alcohol or any other illicit substance whilst children are in her care or to permit anyone else to consume alcohol or any illicit substance in the presence of children.

4. That the children spend time with mother each Friday from 4.30pm to noon on Sunday with changeover to take place at B Family Services NOTING that the weekends commencing 26 June 2020 and 3 July 2020 changeover is to take place at McDonalds Suburb C.

5. That parties do all acts and things to enrol at B Family Services to access their suitability to participate in the supervised changeover program.

6. That the father file and serve a Response, affidavit and notice of risk within seven (7) days.

7. That pursuant to section 69ZW of the Family Law Act1975 the 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 2011, Y born in 2012 and Z born in 2016;

   (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.

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

9. That pursuant to s.11F of the Family Law Act 1975, the parties and the children X born in 2011, Y born in 2012 and Z born in 2016 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia,  Darwin on 8 July 2020 at 9.00am, with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance NOTING that the family consultant is to have discretion as to how the children and the parents attend.

10. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

11. That the parents will undertake and complete the Anglicare ‘For The Kids’ parenting program or with a similar program provider as follows:  

12. Each parent, within seven (7) days of the date of these Orders are to contact Anglicare NT and enrol in the Course;

13. The parents will attend all sessions of the course and comply with all reasonable directions of the course providers;

14. At the conclusion of the course each parent provide the Court and the other parent with a certified copy of the certificate of completion.

15. That the matter be adjourned to 21 July 2020 at 9.30am for further directions.

16. That the mother’s application for a recovery order be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 332 of 2020

MS TALBERG

Applicant

And

MR PANNELL

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 X, who is eight, Y is seven, and Z, who is four.  There are no previous orders.  The parties separated in late 2018 it would appear.  The children have been, it appears uncontested, living in an informal shared care arrangement between the parents, either on a three nights/four nights a week basis, or four nights and three nights.  There appear to have been problems between the parents, which they have, so far, been unable to resolve by themselves.

3. In October 2019, the mother invited the father to attend a mediation at the Family Relationship Centre in Darwin.  An invitation was sent to him at the end of the year, according to the certificate that is attached to the mother’s affidavit.  He failed or refused to attend that mediation.

4. I asked Mr Pannell why he had declined to attend the mediation, and his answer was, frankly, unsatisfactory.  He was also invited to attend a mediation by the mother through the Northern Territory Legal Aid Commission, it would appear, in about March 2020, and, again, he declined to attend.

5. Those matters are of great significance, in my view, because when the matter came on before me today at short notice, the father having retained the children and taken them out of school, the father told me that he was concerned about the children and was concerned that they were not properly cared for by the mother, and he raised some specific issues.

6. He raised the allegation that she consumed alcohol to excess and, indeed, that her consumption of alcohol was at a problematic level and raised questions about her capacity to properly care for the children.  He said that the eight year old, X, had said, and I quote, that she was “neglected” in her mother’s care.  He assured me that that was a word that X herself had used to him, and that X had generally, or the older children, it was unclear, had complained about the mother’s consumption of alcohol.

7. Given that Mr Pannell said that these had been concerns in his mind for a long time, some months, I was concerned that he had refused to attend mediation, and in my mind it raised real doubts about whether these concerns were truthful or genuine.

8. On 14 June 2020, there was an incident when the father was returning the children to the mother.  The mother at the time was, apparently, at her brother’s house, and there was some kind of family occasion going on, and the father told me, from the bar table, so to speak, that on that occasion the children were reluctant to return to their mother and fearful.  He said, the children – and he did not say which children but, I presume, the older children, were fearful while their mother was drinking and they did not want to stay with her.  He said that eventually there was a scene, an unpleasant scene, and the mother called the police.  He had left by that stage.

9. The father has obtained the police summary of that event.  It is largely corroborative of what the father says.  It is highly corroborative of what the father says in relation to the 14 June incident, at least.  The police attended at, it appears, the mother’s brother’s home and a police officer spoke to the children. The relevant police officer, whose name I will not reproduce:  

   … spoke to the children, who stated they wanted to stay with their dad because they didn’t feel safe with their mum whilst she was drinking.  They stated she knew she was drinking because she had a Great Northern can and she smells (like alcohol) today.  They don’t like staying with her while she was drunk, and they wanted to stay with their dad.

10. It also records the following, that the officer spoke to, or officers spoke to the mother and she is described as “intox.”  I take that to mean that the mother was observed to be intoxicated by the police officer who interviewed her. 

11. The mother has put on an affidavit in support of her application for a recovery order, and in relation to the 14 June episode, she confirms that the changeover was to take place at her brother’s home, and she says that the children were upset, but it was nothing out of the ordinary and the father was being difficult and, essentially, refusing to leave without the children, and he also denigrated the mother to X.

12. The mother says that while she was speaking to the police on the telephone the father ripped the electric guard off its track and told the children to run for the car.  Eventually the father drove off with the children, who were all crying.  Thereafter the children were removed from school by the father.  The father has confirmed that, and he confirmed the reason why he removed the children from school was his concern that the mother would come and collect the children.

13. There was no mention in the mother’s affidavit that she was consuming alcohol at the time or that alcohol played any part in the events of 14 June.  I asked the mother’s counsel about that and the mother’s counsel obtained further instructions.  She told me that there was a family gathering of some sort at the brother’s home, implying, as I understood, that alcohol was consumed.  She told me that her instructions were that the mother had told her, the solicitor, that she had consumed “half a can of beer.”  Counsel for the mother submitted to me, as part of the mother’s instructions, the police officer’s observation was incorrect and that the mother was not intoxicated. 

14. Now, obviously, I cannot make any factual finding about that.  The parties are not being cross-examined, and this is an urgent return.  However, in parenting matters in this Court, there is a duty of complete disclosure in relation to any matter that might impact on the welfare of a child.  In my view, if there was alcohol being consumed at that family gathering, as it was clear there was, then it was the mother’s obligation to refer to that in her affidavit.  If she was consuming alcohol herself on that occasion, in my view it was her obligation to disclose that matter to the Court.

15. I am satisfied on the basis of the instructions that have been put to me by the mother that she did not fully disclose those issues in her application.  I was told by counsel for the mother that no letter was written to the father before the proceeding was commenced, because the mother was concerned that there would be some kind of adverse response by the father once he received the solicitor’s letter.  What was unstated was why that adverse response should be any better than serving, at short notice, as has happened with this matter, legal proceedings on the father seeking a recovery order.  There was no evidence of any real independent assessment by the legal practitioner acting for the mother of these issues. 

16. Counsel for the mother told me that there had been consideration of seeking an ex parte order.  It is notorious that courts are reluctant to make ex parte orders, and it is a very rare circumstance that would merit an ex parte application.  Anyway, it was not made ex parte, so I do not need to say anything more about that.  However, I will say something about the decision not to send a letter before the proceeding commenced. 

17. In civil proceedings in Australia, there is generally an obligation to write a letter preceding the issue of proceedings.  Sometimes it is called a letter of demand in other jurisdictions, but, generally, there is such a requirement.  The reasons for that requirement are obvious.  It permits parties to discuss matters, compromise, exchange information with a view to avoiding the stress and strain of legal proceedings. 

18. In my view, that obligation is extremely important and it is extremely important in this jurisdiction.  In my view, there was no reason why a letter was not written before this proceeding was commenced.  As it has turned out, there is another reason why a letter should be written before a proceeding is commenced because very often the information that is elicited from that letter is useful.

19. In this case, the father was served with a proceeding with minimal notice, because I was told the matter was urgent.  I accept that it was urgent, but the father, as it turned out, had objective and independent information which contradicted, to some degree, what the mother had told the Court in her affidavit.  It was extremely important information, and it would have been very useful to the legal practitioner representing the applicant mother had she been aware of that information because it very significantly undermined her case and brought into question the truth of her instructions.

20. I am satisfied there is independent evidence in this case that the children are concerned about being in their mother’s care whilst she is drinking.  They had told the police officer that independently, apparently without the father being present.  That raises very grave concerns.

21. I do not propose to make a recovery order in those circumstances.  I propose to make an order that until further order, that the children live with their father and spend some time with their mother until there is more information about the quality of the mother’s care and her capacity as a parent, which has been thrown into doubt by the material that is in front of me today.

22. I am satisfied that, on the information before me, there is an unacceptable risk of harm should the children simply be returned to their mother’s care, as has been sought.  Nevertheless, I propose to make an order that the children spend time with their mother. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 23 July 2020