Walcott & Pane
[2023] FedCFamC2F 761
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Walcott & Pane [2023] FedCFamC2F 761
File number: MLC 6097 of 2023 Judgment of: JUDGE YOUNG Date of judgment: 13 June 2023 Catchwords: FAMILY LAW – application for review – where the father has requested an urgent interim hearing – where the mother obtained an ex parte interim order – where consent orders were suspended under s68R of the Family Law Act – where the mother alleges the child feels anxious about spending time with the father – where the mother says the child has complained to her of violence at the father’s house – where the court is satisfied the matter requires an urgent hearing. Legislation: Family Law Act 1975 (Cth) s68R Division: Division 2 Family Law Number of paragraphs: 16 Date of hearing: 13 June 2023 Place: Darwin Counsel for the Applicant: Ms Southy Solicitor for the Applicant: Hope Earl Lawyers Solicitor for the Respondent: Self-Represented Litigant ORDERS
MLC 6097 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WALCOTT
Applicant
AND: MS PANE
Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
13 JUNE 2023
THE COURT ORDERS THAT:
1.This is an order that is inconsistent with the provisions of a Domestic Violence Order and, in accordance with s.68P(3) of the Family Law Act 1975 (Cth), a copy of this Order will be provided to:
(a)The Registrar of the Magistrates Court of Victoria (Interim Intervention Order Case Number …);
(b)The Commissioner of the Victorian Police; and
(c)The children’s most recent case manager or investigating officer at the Department of Families, Fairness and Housing.
2.Until further order the child X born in 2014 have communication with the father by telephone or other electronic means at 4.00pm on Fridays, and the mother is to facilitate that communication. The father is not to question the child about her wishes, these proceedings or court orders during any such communications.
3.The mother file and serve a Response, Affidavit in Support and Notice of Risk within 28 days.
4.Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), an Independent Children’s Lawyer be appointed for X born in 2014 (the child).
5.Victoria Legal Aid is requested to make arrangements as soon as possible for appropriate representation for the child and forthwith upon such appointment, the Independent Children’s Lawyer file a Notice of Address for Service.
6.The Court advise Victoria Legal Aid of this order forthwith.
7.Within 7 days of notification of the Independent Children’s Lawyer’s appointment or the filing of the Notice of Address for Service by the Independent Children’s Lawyer, each party make available to the Independent Children’s Lawyer copies of all applications, Notices of Child Abuse, Family Violence and Risk and affidavits upon which that party relies together with any court orders and copies of any relevant reports.
8.Leave is granted to the Independent Children's Lawyer to issue such subpoenas as they consider necessary for the appropriate conduct of the matter.
9.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and X born in 2014(“the child”) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (“the Court Child Expert”) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
10.Part 1 of the event will occur by video call, using Microsoft Teams, 3 August 2023, with:
(a)The Applicant to attend at 9.00am; and
(b)The Respondent to attend at 10.30am.
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
Part 2 of the event will occur in person at the Melbourne Registry on the morning of
4 August 2023. Specific details regarding the attendance of the parties and child on this date will be provided to the parties in Part 1 of the event.
11.Each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
12.The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
13.Not later than 4.00pm on 30 June 2023 the parties must provide their contact telephone numbers and email addresses to [email protected].
14.Pursuant to order 9 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those views;
(d)the impact of the issues/dispute before the Court on the child;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child.
15.Upon completion, the Child Impact Report shall be provided to the Registrar for release to the parties, including by way of order made in Chambers.
16.The Court Child Expert shall be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)Material produced by a Child Protection authority pursuant to subpoena or a Section 69ZW order made in these proceedings;
(b)Material produced by a Police Service pursuant to subpoena or Section 69ZW of the Family Law Act 1975 (Cth) or Section 245D of the Children and Young Persons (Care And Protection) Act 1998 (NSW) made in these proceedings;
(c)Any other relevant material presently before the Court in admissible form.
17.The matter listed for interim defended hearing before Senior Judicial Registrar B at the Federal Circuit and Family Court of Australia, Melbourne on 20 July 2023 at 10:00am.
18.The first Court date on 19 July 2023 at 10.00am be vacated.
NOTING:
A.The Judicial Officer hearing the matter may defer any hearing until completion of the Child Impact Report.
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 Walcott & Pane has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Young
This is an application for review concerning a child, X, who is nine years old. The background to the matter is as follows; on 11 April 2022 final orders were made by consent between the parties prior to a trial, I understand. In simple terms, those orders provided for X to spend time with her father on alternate weekends and once during the week on a Wednesday night. That arrangement, apparently, continued without major difficulty until May of this year when the mother complained to the father that X was feeling anxious about the Wednesday night time.
X complained to her mother in May, according to the mother’s intervention order application, and said that she was feeling anxious and upset because at her father’s, on one occasion, one of the father’s guests had said of his own daughter that he had struck her and this was made a joke of. Of course, it is impossible to know precisely or even roughly what might have happened but, according to the mother, this was X’s perception. It is also said in the application for an intervention order that one of the father’s friends – it is not said whether it was a man or a woman but one would assume a woman – had asked X about whether she was about to begin menstruating or had menstruated. Again; it is unclear.
There are other references to the father, according to the application and intervention order, speaking roughly to X or yelling at her and so on. It was said also in March that the father had threatened to break X’s sister’s arm and X was upset. On another occasion in January X ran away from her father’s home, wanting to go back to her mother’s. It was alleged that in October 2022, the father squeezed X’s ear, causing her to cry. The application also says that in May the father slapped X across the face. It is alleged that in November 2022 the father told the child to lie and say he did not hit her. There is no context in any of this but, nevertheless, those allegations were made.
At the beginning of May 2022 the mother communicated with the father about these matters.
On 15 May the father’s solicitors wrote insisting on compliance with orders, the mother having evidently floated the idea that the orders be varied, either temporarily or permanently. The mother replied on the 16th making, not the allegations that I have referred to in the intervention order, but referring to the child having panic attacks.
In that letter it was said that the child no longer wished to spend time with the father on Wednesdays. There was no mention of the weekends. On 17 May the father’s solicitors wrote again insisting on compliance with the orders. The mother, in May 2023, suggested that the parties attend mediation at C Counsellors. On 24 May the father replied to that letter refusing to participate in mediation and refusing to contemplate any departure from the consent orders and threatening proceedings. On 29 May 2023 the mother sought and obtained an ex parte interim order under the Victorian State legislation which also made an order pursuant to section 68R of the Family Law Act suspending the orders made under the Family Law Act, with the net result that the child is spending no time at all with the father.
The matter is listed for mention, apparently, on 6 July in the Victorian Magistrates Court. I am told by Ms Southy who appears for the father that that is a mention and there will be no expectation that the orders be varied at that stage. Presumably, it will be set for a hearing if need be. Ms Southy says, and I accept, that the 6 July mention is not likely to result in a revocation of the 68R order.
The father commenced an application on 6 June seeking an urgent interim hearing, which the listing registrar declined to give him, and adjourned the matter to 19 July for listing before a judicial registrar for further consideration of what ought to be done.
I accept that this matter is urgent. I accept that, given the somewhat unusual circumstances, in particular the mother’s initial position that the Wednesday needed to be changed, the apparent absence of any claim as set out in the intervention order application that the child had been physically assaulted by the father or threatened, that those circumstances are somewhat unusual. It is also unusual, I think, that if the child was struck in May of last year across the face by the father as the mother alleges, that there was no application by her. I think this matter does require judicial consideration as soon as possible, particularly having regard to the fact that the existing orders have been suspended in their entirety on the basis of an ex parte hearing and there indication as to when those ex parte interim orders might be reconsidered.
I consider that the total suspension of orders on an ex parte basis without a definite date for that suspension to be reviewed a short time later is unusual and undesirable in this or any other jurisdiction. I consider that I do need to list the matter for an interim hearing in front of a Senior Judicial Registrar (SJR). I have some doubts about whether the SJR will be able to make much headway, particularly in view of the absence of any material that sets out the child’s wishes or any substantiation, really, of the claims. There is no evidence before me that, for example, the alleged assault on the child, or the threat of breaking the arm of another child, has been referred to the Victorian child welfare authorities.
I suspect there will be an absence of objective information in relation to those allegations. However, I consider that the SJR is best able to work out how to deal with that. I propose today, as well as listing the matter for an interim hearing before an SJR, which will be on 20 July at 10 am, to also make orders for a Child Impact Report. That will not, unfortunately, be ready before 20 July. As far as I understand, the earliest date would be October but at least the SJR will know that there is a report underway and, having regard to the very serious allegations made in the intervention order application, I consider that an interview of the child is merited.
I also propose to make an order for the appointment of an Independent Children’s Lawyer. The mother was served with the relevant applications on Friday. Ms Southy, who appears as counsel for the father, has confirmed that she believes it would take Legal Aid about four weeks to be ready to deal with the matter. The mother has told me that she has applied for legal aid or is about to apply for legal aid. She has the forms. So I think it is very likely to take that long for things to be in place for an interim hearing.
I also propose to make an order in the following terms: that each Friday, at 4 pm, the child is to communicate with the father by electronic means, that is, by telephone, iPad or similar and the mother is to facilitate that communication. The father is not to question the child about her wishes, these proceedings or Court orders during any such communication. I am required by section 68P to satisfy certain criteria before or in making that order. I do declare that the order is inconsistent with the existing Family Violence Order made in the Victorian Magistrates Court on 29 May 2023.
I am satisfied that it is in the child’s best interests not to receive an explanation of the order that I have just made pursuant to 68P(2)(c)(iii) as the purpose of the order is to maintain the child’s relationship with her father until this issue can be more carefully dealt with by the court. I am conscious that it is inconsistent with the intervention order made in the Victorian Magistrates Court. I am concerned that that order was for a complete cessation of orders made by this Court on an ex parte basis without there being any evident timeframe for a review by that Court of its ex parte order. As I say, I consider that to be an undesirable outcome in a matter like this.
The allegations made in the intervention order have not been tested and there has been no report, as far as I am aware, to the Victorian child welfare authorities, nor have the allegations, as far as I know, been raised at an earlier point.
I correct my reasons. The mother has asserted to me that she made a report to the child welfare authorities in Victoria but those allegations were not investigated so I assume that they were screened out. There is therefore no substantiation of those allegations.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 22 June 2023
0
0
0