Theophane and Hunt

[2011] FamCA 746

FAMILY COURT OF AUSTRALIA

THEOPHANE & HUNT [2011] FamCA 746

FAMILY LAW – CHILDREN – INTERIM ORDERS – all previous parenting orders suspended – child removed from the primary care of the mother - order that child live with the father in the interim – question of the mother’s time with the child be adjourned for further interim hearing. 

Family Law Act 1975 (Cth)

APPLICANT: Mr Theophane

RESPONDENT: Ms Hunt

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: CSC 1089 of 2007

DATE DELIVERED: 5 September 2011

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 5 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms B Reaston

SOLICITOR FOR THE RESPONDENT: O'Reilly Stevens Bovey Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms W Lehmann

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lehmann Featherstone

Orders

1. All previous parenting orders relating to the child X born … September 2006 (“the child”) are suspended.

   UNTIL FURTHER ORDER

2. The child X born … September 2006 (“the child”) live with the father.

3. The child be handed over to the father at 4.00pm Tuesday 6 September 2011 at MC Playground ….

4. A recovery order issue, such recovery order to only operate if and when the child is not returned at 4.00pm Tuesday 6 September 2011 as per order 3 above.

5. The father be restrained from discussing any aspect of these proceedings or the allegations of the event of … September 2011 with the child.

6. The father not bring the child in contact with any overt signs of the attack such as blood, human tissue or police tape.

7. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

8. These proceedings be adjourned for interim hearing at 9.30am Monday 26 September 2011 at Cairns.

9. The mother’s application for time with the child be adjourned for interim hearing at 9.30am on Monday 26 September 2011 at Cairns.

10. Leave be given to the father to file such further affidavits on or before Wednesday 14 September 2011 and that the mother file and serve any material she seeks to rely on or before 4.00pm Wednesday 21 September 2011.

11. The interests, in these proceedings the child X  born … September 2006, be independently represented by a lawyer and it is requested that Legal Aid Commission Queensland arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Cairns.

12. Forthwith upon appointment by the said Legal Aid Commission of Queensland or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

13. Within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

14. The Independent Children’s Lawyer prepare an updated family report be prepared.

IT IS REQUESTED

1. Pursuant to s 91B of the Family Law Act 1975 the Secretary of the Department of Child Safety Queensland intervene in these proceedings.

   IT IS DIRECTED

2. A copy of the reasons for these orders be taken out and placed on the court file.

   IT IS CERTIFIED

3. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 1089 of 2007

Mr Theophane

Applicant

And

Ms Hunt

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application which came before me today filed on behalf of Mr Theophane (“the father”) seeking urgent orders that the child X (“the child), born September 2006 and now aged four, almost five, live with him, that the father have sole parental responsibility and the mother’s time with the child be supervised once a month between 2.00 and 4.00 pm on Tuesday by Relationships Australia.

2. That application was filed in the Family Court this morning and was served upon an Independent Children's Lawyer.  The Independent Children's Lawyer has not been properly briefed and is not across the facts or circumstances of this case.  This is not a criticism of her as she only took this matter over today.  Appearing at Court today, on behalf of the mother is a solicitor who has not yet been able to see the mother and take any proper or adequate instructions from her. 

3. The factual circumstances in which I find myself are these:  the child was born in September 2006 and proceedings came before me in October 2009.  Consent orders in relation to the child had previously been made in October 2008 after proceedings had apparently been commenced earlier that year or in 2007.  In those proceedings before me, the mother sought orders that the child reside with her and have unsupervised time with the father.  The father sought orders that the child reside with him and have unsupervised time with the mother.   There were other issues in relation to parental responsibility.

4. The mother has since remarried Mr E, who is in Court with Ms Reaston and there is a child of that relationship, Z, who was born in February 2010.

5. Proceedings came back before the Court earlier this year and I am told, and I understand it is not in issue, that there were contravention proceedings heard before Coker FM on or about 19 August 2011 and there were findings of upwards of six breaches by the mother and make up time was put in place.  It is an agreed fact, as I understand it, that the child was to have gone in to the care of the father on Friday of this week.

6. The father asserts that the mother came to his home on Friday night and attacked him with a knife to the extent that he suffered injuries, although significant, appear not to be life threatening but appear to have been more than simply frightening.  The father sought assistance and the police were called.  The mother was arrested that evening and as such has now been charged with an offence, and the father asserts that it was attempted murder.  The mother was remanded in custody and it appears it is not in issue that the mother remains in custody.

7. The solicitor for the mother says that there is to be an application for bail before a Court this coming Wednesday.  The question is, of course, what should happen to the child in the interim period.  Solicitor for the mother says that before the Federal Magistrate there was a tape recording, although the status of that tape recording is not known, where the child was allegedly distressed by interaction with the father.  There is also an assertion that the child might be exposed to blood and other material at the father’s flat following the attack on Friday night.

8. My task is to ensure that the child is protected and that the child has a meaningful relationship with both parents.  I have previously made findings in relation to this matter but the allegations raised by the father and presumably to some extent supported by the police, although how that will pan out in the long run I do not know, are troubling to say the least.  There is a serious allegation that the mother attempted to at least to harm if not murder the father.  The mother may or may not be released from remand on Wednesday and the impact of that upon her may or not may not be troubling.

9. It seems to me that for the time being the child ought to be placed in a care of the father and the matter be brought back before me in two or possibly three weeks time.  That will enable a number of things to happen:  firstly, an updated family report can be obtained from Ms P, hopefully; secondly, the mother can be given time to prepare an affidavit in support and thirdly, perhaps material from the police can be identified.  It is a significant matter to remove a child from a primary carer, however, these are significant allegations and ought to be treated seriously. 

10. Courts are obliged to consider the impact of violence on the child and the impact of violent circumstances.  Fortunately, I have time or will make time to hear this matter on the first day of my Cairns sittings in September this year.

11. There is an application before me by the mother for orders to spend some time with the child between now and when the matter comes back before me.  The father does not oppose that course and does not oppose the child having a relationship with her brother but says it should take place at a contact centre or alternatively, with the father Mr E and himself being present.  Clearly, the former cannot occur, or is unlikely to occur, in the time required, although no doubt some inquires can be made in the meantime.

12. I had considered whether having the maternal grandparents and Mr E present might offer significant or sufficient protection, however, I do not know.   If the father is correct and the mother has done what he suggests she has done, that is, to attempt to kill him and in a premeditated way I am not comfortable in the circumstances to put in place those interim orders that may well be that the following weekend, that inquires can be made of the contact centre and it could be done at that time.  But my concerns at the moment, bearing in mind the serious allegations, are such that I am not satisfied that an interim order ought to be made until there is more material before the Court.  Accordingly, I will stand that application over with the others to 26 September 2011. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 5 September 2011.

Associate:     

Date:              5 September 2011