Tallant & Kelsey (No. 3) - [2016] FamCA 933

FAMILY COURT OF AUSTRALIA

TALLANT & KELSEY (NO 3)

[2016] FamCA 933

FAMILY LAW – CHILDREN - Child related proceedings – Department of Family and Community Service invited to intervene in the proceedings.

Family Law Act 1975 (Cth)91B

APPLICANT:

Ms Tallant

RESPONDENT:

Mr Kelsey

INDEPENDENT CHILDREN’S LAWYER:

Mills Oakley

FILE NUMBER:

PAC

3364

2013

DATE DELIVERED:

4 November 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

4 November 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Women's Legal Service NSW

SOLICITOR FOR THE RESPONDENT:

No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mills Oakley

Orders

Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.
In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention as soon as practicable.
Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

THE COURT NOTES

A. A short Judgement will be published with respect to the request for the Department of Family and Community Services to intervene.

IT IS ORDERED THAT

The hearing dates for the resumed hearing commencing 5 December 2016 are confirmed.

THE COURT NOTES

B. The father has not complied with directions and orders made with respect to the preparation of the matter for the resumed hearing. In the event that he does not appear at the resumed hearing the matter will be determined on an undefended basis and in his absence.

THE COURT ORDERS THAT

Each of the parties is to file and serve an Affidavit by 24 November 2016 concerning the following matters:
a. Any contact between the father and the children subsequent to 10 June 2016;
b.Any matters relevant to the children’s welfare and wellbeing subsequent to
10 June 2016 including but not limited to the children’s pattern of attendance at a school;
c.Any other matter relevant to the best interests of the children arising from events subsequent to 10 June 2016.
The parties have liberty to issue any subpoena as they regard relevant to matters arsing after 10 June 2016. Such subpoenas are to be returned and inspected prior to the resumed hearing.
The father is restrained from spending time with the children or either of them other than in accordance with the orders of 10 June 2016, except in the course of the update assessment of Mr R.
The mother is restrained from taking any steps that facilitate or enable the father to spend time with the children or either of them other than in accordance with the orders of 10 June 2016, except in the course of the update assessment of Mr R.

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 Tallant & Kelsey (No 3) 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 PARRAMATTA

FILE NUMBER: PAC 3364 of 2013

Ms Tallant

Applicant

And

Mr Kelsey

Respondent

REASONS FOR JUDGMENT

In the course of parenting proceedings which are currently part-heard I made an order that the Secretary of the Department of Family and Community Services (Community Services) be invited to intervene in the proceedings. This order was made at the request of the independent children’s lawyer (ICL) and is also in my view an appropriate order to be made.
These are the reasons for making such an order.
The parenting proceedings between the parties relate to their two daughters who are aged 14 and five.
The mother who is 42 and the father who is 41 commenced a relationship in around 1999. The parents began living together in around 2001 and the first child C was born in 2002. The second daughter D was born in 2011.
The parents initially separated in March 2013 and final orders in relation to the future parenting of the children were made in December 2013. Under those orders, the parents equally shared parental responsibility for the children who lived between the parents in a shared care relationship.
Notwithstanding their separation, the parties continued a sexual relationship until October 2014.
Until the father recently started spending time with the children again, he last spent time with them in October 2014 when the mother alleges that the younger child who was three made a complaint of sexual abuse said to have been committed by the father. JIRT commenced an investigation into the alleged disclosure but it was not substantiated and no further action was taken by police or Community Services.
Following separation the mother moved to a refuge at an undisclosed location with the children and a few days later an ADVO was sought for the protection of the mother against the father.
The mother commenced these proceedings in November 2014, seeking sole parental responsibility for the children and orders that they live with her and spend no time with their father, as well as orders with respect to the parties property.
It is the mother’s case that the father poses an unacceptable risk of harm to the children on a number of bases. In addition to her contention that there is an unacceptable risk that the father may sexually abuse the children she also contends that she has been the victim of coercive and controlling violence throughout the relationship to which the children have been exposed. There are also allegations about the father’s mental health. In addition the mother contends that the father’s substance misuse detrimentally affects his parenting capacity. There are other concerns about the father’s parenting capacity including his use of physical discipline.
When the final parenting trial began in June 2016 the father had not spent any time with the children other than in the course of assessments with a family consultant and when the mother was required to bring the children to court. This time did not occur even though orders had been made in December 2015 that the father spend a short period of supervised time with the children which would then progress to overnight time and that this regime be instituted immediately. The mother’s position in failing to make the children available to the father in accordance with these orders was that she was not prepared to expose the children to the harm that she contended was posed by the father.
During the proceedings and under cross-examination the mother did not appear to be so trenchantly opposed to the father spending any time with the children and ultimately agreed that she would make the children available in accordance with the court’s orders. Orders that were made on 10 June 2016 when the first part of the trial was adjourned provided for the father to spend time with the children supervised by a private supervision agency for a minimum of three hours per week and such other period as was agreed between the parties.
When the proceedings were adjourned orders were also made requiring the father to submit to urinalysis at the direction of the ICL and each of the parties were to enrol in a parenting program as directed by the ICL. The mother was also required to take all necessary steps to arrange therapeutic counselling for the children as nominated by the ICL and was restrained from taking the children from any other counsellor or therapist. The father was also restrained from coming within 100 metres of the mother’s home and any school attended by the children without the prior written consent of the mother.
On 22 September 2016 when the matter was before the court for the purposes of making further directions in relation to the preparation for trial the father represented himself while the mother was represented by her lawyer. On that occasion the ICL informed the court that there was an incident in the course of the father’s time with the children supervised by the private supervision agency on 3 September 2016 and as a result the service was no longer prepared to supervise the contact. As I understand it the father was observed to have behaved in an aggressive and threatening manner when the children were with him. The father at that stage informed the ICL and mentioned to the court that he was spending time with the children other than in compliance with the court orders as it was unsupervised. The ICL also advised the court that the father had told her that the parenting dispute between the parents had been resolved or was close to resolution. The father was informed that any discussions concerning the matter should include the ICL. The mother’s legal representative was not in a position to obtain instructions as to these matters as her client was not at present.
The matter was relisted today at the request of the ICL primarily as the father had not paid for an updated expert’s report as require. The ICL also brought to the court’s attention a number of matters in relation to the litigation generally and which gave rise to a concern about the well-being of the children and current risks of harm to them. It is in this context that the Secretary was invited to intervene.
Matters of concern raised by the ICL are that the father has not complied with any directions in relation to urinalysis and has not complied with the order with respect to obtaining a report in relation to his mental health. There have also been occasions on which the father has taken the younger child to school which is contrary to a restraint on him doing so and he has not enrolled in any parenting course. The ICL also informed the court that the father had allegedly intercepted email correspondence between the mother and her lawyers.
According to the ICL concerns about the circumstances of the children also arise in the mother’s household. The older child has a 48 per cent attendance rate at school and also regularly attends the father’s home and stays overnight with him.
It was conceded on behalf of the mother that although she maintains that the father has sent threatening text messages to her and continues to perpetrate controlling and coercive violence against her she has not been able to prevent C from “self-placing” with the father. The mother describes herself as “conflicted” and has not sought the assistance of police or community services in ensuring that the child does not place herself with the father.
The proceedings are listed to resume on 5 December 2016 and it is hoped that they will then be concluded. The court may be asked to make a finding that there is an unacceptable risk of harm to the children in both of the parent’s households and in these circumstances the Secretary of the Department is invited to intervene in the proceedings.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on

4 November 2016.

Associate:

Date: