Tanton & Tanton (No 2)
[2023] FedCFamC1F 619
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tanton & Tanton (No 2) [2023] FedCFamC1F 619
File number(s): SYC 8004 of 2021 Judgment of: CHRISTIE J Date of judgment: 31 July 2023 Catchwords: FAMILY LAW – CHILDREN – INTERIM PARENTING ORDERS – Application to amend previous interim orders in the absence of compliance – Where the applicant father seeks that the orders be amended with the words “children’s counselling” being substituted for “family therapy” – Where the applicant father seeks an order clarifying the therapeutic goal of counselling – Where the applicant father seeks an order in respect of changeover – Where the evidence of a party does not expressly address the application – Proposed orders in the best interests of the children.
FAMILY LAW – CHILDREN – Where material produced under s 69ZW of the Family Law Act 1975 (Cth) is significant and concerning – Orders for expediting final hearing – Request that the Secretary, Department of Communities and Justice intervene in the proceedings.
Legislation: Family Law Act 1975 (Cth) ss 69ZW, 102NA Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 27 July 2023 Place: Sydney Solicitor for the Applicant: Pigdon Norgate Family Lawyers Counsel for the Respondent: The Respondent appeared in person Solicitor for the Independent Children's Lawyer: Farah Lawyers, Solicitors & Barristers ORDERS
SYC 8004 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TANTON
Applicant
AND: MS TANTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
31 JULY 2023
THE COURT ORDERS THAT:
1.The final hearing in this matter be expedited.
2.The hearing dates 13-17 and 20 November 2023 are vacated.
3.The matter is listed for final hearing for 6 days commencing 13 October 2023.
4.In relation to Order 1 of Orders made on 5 May 2023, the words “family therapy” are to be substituted with “the children’s counselling as set out in Order 2”.
5.In respect of changeovers:
(a)In the event the children are sick or are not in attendance at school on the day that they are to spend time with the father, pursuant to Order 1 of Orders made on 5 May 2023, changeover is to occur at the front gate of P School on EE Street.
(b)In the event it is school holidays when the children are to spend time with the father, pursuant to Order 1 of Orders made on 5 May 2023, changeover is to occur at the front gate of P School on EE Street.
6.UPON NOTING that the requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in these proceedings on or after 31 July 2023, neither party may cross-examine the other party personally and any cross-examination must be conducted by a legal practitioner acting on behalf of the other party.
7.Within seven days of the date of these orders, the respondent complete the “Scheme Application Form” and provide to Legal Aid NSW for the allocation of a legal practitioner
THE COURT NOTES THAT:
A.The Court has made an order that the requirements of s 102NA(2) are to apply to the cross examination.
B.The parties have each been advised by the Court that:
(a)pursuant to those requirements, neither party may cross-examine the other party personally;
(b)pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
(c)as to the availability of the Commonwealth Family Violence and Cross‑Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
C.A copy of these orders will be provided by the Court to Legal Aid NSW, which administers the said scheme.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
These interlocutory parenting proceedings come before the court in circumstances where I heard and determined an interim application on 5 May 2023 concerning the children Z born 2015, Y born 2011 and X born 2009. The orders did not relate to W born 2007 and he lives with the mother. The history is set out in the reasons for judgment of that day and I will not repeat them here.
This application is an application to amend the orders which were made on 5 May 2023 in circumstances where it was common ground where there has not been substantial compliance with their terms.
The relevant orders which the father, by his application, seeks to amend are as follows:
2. The children are to attend on [B Counsellors] for the purpose of counselling.
3. Within 14 days of the making of the orders, the mother shall:
(a) Contact [B Counsellors] to arrange initial consultation;
(b) Ensure that the children attend on the recommended therapist and such other family therapist as agreed between the parents, in writing or recommended by [B Counsellors].
(c) Attend upon all appointments as advised by the therapist; and
(d) Ensure the children’s attendance at appointments as required by the therapist.
In a case outline filed 17 July 2023 the father sought orders as follows
1. In relation to order 1 of Order made on 5 May 2023, the words “family therapy” to be substituted with “the children’s counselling as set out in order 2”.
2. In relation to order 2, a new order 2(a) be inserted as follows: “It is noted that the therapeutic goal in the counselling as set out in order 2 is to include supporting the children’s reintegration with their father.”
3. Additional orders be inserted for changeover, as follows:
3.1 In the event the children are sick or are not in attendance at school on the day that they are to spend time with the father pursuant to order 1, then changeover to occur at the front gate of [P School] on [EE Street].
3.2 In the event it is school holidays when the children are to spend time with the father pursuant to order 1, then changeover to occur at the front gate of [P School] on [EE Street].
That matter came before me on 20 July 2023 at which time I made the following orders:
1. The matter is adjourned until 9.00 am on Thursday 27 July 2023.
2.The parties are to file any further material upon which they intend to rely by 4.00 pm on Tuesday 25 July 2023.
3.Pursuant to s 91B of the Family Law Act 1975 (Cth), the Department of Communities and Justice is invited to intervene in these proceedings in respect of the children [W] (born […] 2007), [Y] (born […] 2011), [Z] (born […] 2015) and [X] (born […] 2009). Upon request, the Court will provide to the Department copies of all documents relevant to the proceedings to enable it to consider this request.
4.Pursuant to s 69ZW of the Family Law Act 1975 (Cth) the Department of Communities and Justice is directed to provide to the Federal Circuit and Family Court of Australia (Division 1) documents relating to [X] (born […] 2009), [Z] (born […] 2015), [W] (born […] 2007) and [Y] (born […] 2011) for the period 13 March 2023 to the date of receipt of these orders by 4.00 pm on Tuesday, 25 July 2023.
On 26 July 2023, after the order which I had made pursuant to s 69ZW was complied with by the Department of Communities and Justice, I released that material to the parties.
The mother appeared at the hearing and was representing herself. She informed the Court that her grant of legal aid is being transferred from her previous solicitor to Philip Wilkins & Associates but for abundant caution I intend also to note that this is a matter to which s 102NA of the Act applies. The intention in making that notation is not to create two pathways for the mother to be legally represented but just to avoid a position whereby she does not have legal representation for the final hearing and therefore a copy of that Order will be provided to the Legal Aid Commission together with a copy of these reasons which indicate that if the mother is in receipt of a grant of legal aid the s 102NA order will not have any operation.
The mother opposed the change to the existing orders the Independent Children’s Lawyer (“ICL”) supported the change to the existing orders.
The father’s solicitor did not press the making of the notation which had been set out in his Case Outline.
Both the mother and the father filed affidavit material. The mother’s affidavit material did not explicitly address the change to the orders but was more broad-ranging in its content.
The evidence made plain that the children’s counselling has commenced but that no supervised time is occurring.
The evidence produced in response to the request under s 69ZWof the Act also raised concerns about the mother’s attitude to the children’s participation in counselling.
The intention of the Orders of 5 May 2023 was to assist the children in the circumstances in which they find themselves and accordingly the amendments which are proposed seem to further support that outcome. The mother resisted the changes on the basis that they would signal to the children matters which would cause them anxiety. I do not see how the amendments which the father sought would in any way signal anything to the children and I propose to make the amendments.
It was then necessary to consider the further conduct of this matter. The context is that when I heard evidence and submissions ahead of my reasons on 5 May 2023 the father’s case was that the situation, for the younger children particularly, was acute and one of the reasons for that was because of the conduct of their brother W. At the previous interim hearing the mother’s solicitor, on instructions, indicated that the position for W had substantially improved since the concerning material which was before me and in those circumstances the situation could no longer be described as acute. To some extent I accepted that submission. Unfortunately I did not have before me the material contained in Exhibit 1 being the material produced by Department of Communities and Justice (“DCJ”) in response to my request under s 69ZW of the Act. I will consider that material and how it informs the further conduct of this case.
It is important to set out the content of that document in these reasons. In early 2023 the DCJ helpline received a report and under the heading brief concern it said:
There are concerns around physical and emotional abuse by [W] (14) towards [Z]. On […] 2023, screaming and yelling was heard [redacted]. [Z] was seen to be smacked by [W]. [Z] was crying and screaming “help me”.
Under reported information the record says:
On […] 2023, [W] (14) could be heard [redacted] physically attacking [Z]. [W] could be heard using swearing words. [Redacted] could hear a few large slaps and one huge slap which made [Z] hysterically cry. Following this, [Z] was crying for 10 to 15 minutes [redacted] often hear [W] physically abusing [Z].
[Redacted] believes that [W’s] slap would have physically injured [Z].
[Redacted] nearby are petrified from [W]. [W] is [has] previously written threats of harm to [redacted]. [Redacted] does not know what the letter would say specifically. [Redacted] believes [W] has been in and out of juvenile in the past.
[Redacted] has notified [redacted] School about the abuse towards [Z] by his brother. [Redacted] will keep a radar on [Z].
The records suggest that the question was posed to the reporter as to whether or not they believed the mother had been acting protectively in respect of Z and the reporter indicated that “because everyone is scared of [W], it would be too difficult to control [W] at home”. The records also suggest that the reporter does not believe that the mother “has control of [W].”
The report then went on to say:
[Redacted] is concerned about comments [redacted] heard from [W] on […] 2023. [W] was heard telling [Z] to put his pants down in the presence of [Ms Tanton]. [W] made comments that he was sexually abused when he was younger. [W] then told his mother, “I got sexually abused, why can’t I do it to them?”. [Redacted] mentions that there is an ADVO protecting the children from their father and there is no contact. [Redacted] believes that the children may have been sexually assaulted by their father. [Redacted] is aware that [Ms Tanton] was present in the room at the time but is concerned about the possibility that if [Ms Tanton] is not around and what will happen to [Z] and the other children in the house.
This is a significant and concerning report. The mother for her part says she does not know anything about that report notwithstanding that the reporter said she was present when it occurred. I cannot, as a consequence of the mother’s apparent denial, ignore that information. If it occurred then it is indicative that the children remain at risk of violence (including potentially sexual violence) in the mother’s household.
The parties had entered into a single expert order appointing a psychiatrist to conduct an assessment of the mother and it is expected that report will be available in approximately two weeks. In circumstances where there are significant serious allegations which are contested I remain concerned that an interim hearing is not the appropriate forum for this matter to be resolved and accordingly I explored with the parties if it would be appropriate to list the matter for a further hearing.
The solicitor who appeared on behalf of the father acknowledged that a further interim hearing may not be of much utility in circumstances where it appears plain that the orders for time are not being complied with and are unlikely to be complied with. The mother was not seeking a further interim hearing although she accepts that the current orders are not being complied with. I have been able, with the cooperation of other judges, obtain final hearing dates a month earlier than previously allocated. I therefore intend to order that the matter be expedited. Accordingly, I will vacate the dates in November 2023 (13-17, 20 November 2023) and allocate 13, 16‑20 October 2023.
On 23 March 2023 I made an order requesting the DCJ to intervene. I understand they considered that request and declined to intervene. I made a further request on 20 July 2023. I am aware they are currently considering that request. I remain concerned about the options available to these children in circumstances where the court cannot at this stage be confident that it is safe or viable that they live with either parent. It remains the case that I am concerned that the DCJ are standing by while this situation unfolds and seem to be providing some support to the mother in her position of not facilitating Court ordered time. I may be incorrect in my assessment of this but without their active participation in the litigation I can only try to piece together what their position is in reliance upon the production of their notes pursuant to s 69ZW requests. It is in those circumstances that I have again requested that the DCJ take up the invitation to intervene and provide their perspective in respect of the risk issues for the children which are not confined, in my view, to whether or not they have been sexually assaulted.
This is not a final determination of the issues which will be the subject of tested evidence at final hearing but a candid assessment of the fact that the mother alleges the children are at risk in the care of the father. Even if I ultimately find that that he does not pose a risk of sexual violence it may be that the children are implacably opposed to living with him or spending time with him. The father’s case is that the children are at significant risk in the care of the mother arising out of her preoccupation with allegations of abuse and the risk posed by W’s dysregulated behaviour including violence. This combination of issues presents a very real possibility that the children will need substantial support whatever the outcome and I again request that DCJ give consideration to participation in the proceedings which are listed for final hearing. If they become a party they will receive a copy of the single expert report which is pending which may assist them to determine what proposal – that of the mother or that of the father, or indeed some other proposal will best meet the needs of these vulnerable children.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 31 July 2023
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