WALTUS & TREGEAR

[2020] FCCA 2007

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALTUS & TREGEAR [2020] FCCA 2007

Catchwords:
FAMILY LAW – Parenting – breach of orders – Contravention application file by the father – Initiating application filed by the mother to suspend the orders – current orders suspended.

Legislation:
Family Law Act 1975 (Cth) ss.11F, 60CC, 69ZW

Applicant: MS WALTUS

Respondent: MR TREGEAR

File Number: DNC 190 of 2014

Judgment of: Judge Young

Hearing date: 25 June 2020

Date of Last Submission: 25 June 2020

Delivered at: Darwin

Delivered on: 25 June 2020

REPRESENTATION

Counsel for the Applicant: Ms Holtham

Solicitors for the Applicant: Story & Associates

Counsel for the Respondent: Mr Back

Solicitors for the Respondent: Ward Keller

UNTIL FURTHER ORDER

1. That the orders made on 24 December 2014 for the children X born in 2007 and Y born in 2009 to spend time with the father be suspended.

2. That pursuant to s.11F of the Family Law Act 1975 the parties and the children X born in 2007 and Y born in 2009 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 7 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  have discretion as to how the children and the parents attend.

3. 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.

4. That pursuant to section 69ZW of the Family Law Act1975 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 2007 and Y born in 2009;

   (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.

5. 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.

6. That the matter be adjourned to 23 July 2020 at 11.00am for interim hearing in relation to the time the children spend with the father.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DARWIN

DNC 190 of 2014

MS WALTUS

Applicant

And

MR TREGEAR

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 an application concerning two children, X, who is 13; and Y, who is 10.  The proceedings were commenced by the father, who filed a contravention application on 15 June 2020 and sought an urgent listing.  The basis of complaint by the father is that the mother was in breach of orders made on 24 December 2014, which saw orders for equal time between these children and their parents.  I was told that the orders were varied by agreement to provide for a two-week rotation.

3. That continued until the beginning of the year when, it seems, X, the 13-year old – she has now just turned 13 – began to exhibit certain problems.  I will leave it vaguely described but, as at May 2020, X was taken to a general practitioner after she swallowed 14 antihistamine tablets and lacerated her wrists and ankles with a kitchen knife at her mother’s house. 

4. The mother has deposed that X is expressing opposition to spending time with her father and is in substance refusing to go.  It seems that Y has taken the same line.  As the result of X’s presentation at the general practitioners on 5 May 2020, she was referred to the hospital and then eventually referred again to Headspace, which is a mental health service for young people in Darwin.  There is a letter from a psychologist employed at Headspace who briefly reports that X has been having troubles with her mental health, including suicidal ideation, but her mental health was improving, according to the report:

   X attributed recent significant improvements to residing with her mother.

5. It does appear that X is having a difficult time at the moment.  And the reasons for that are probably unclear.  There is material to suggest that she was having difficulties at school, relationship difficulties, I take it with a boyfriend or something of that kind at school.  Also, she appears to be complaining that she does not get on well with the father’s present partner.

6. In addition, as part of this process, there is an allegation that X was either assaulted or the subject of excessive physical discipline by her father, which, apparently, is under investigation by Territory Families.  The nature of that is unclear but there does seem to be some evidence of conflict between X and her father that may have degenerated into a physical level.  I don’t know about that.  This is an interim hearing and I can’t make any findings but they are the allegations in the mix.

7. I am satisfied, having regard to those matters and having regard to the criteria set out in section 60CC of the Family Law Act 1975, including subsection (2) and the other matters in subsection (3), that, notwithstanding X’s right to a meaningful relationship with both parents, including her father, that a meaningful relationship between X and her father – and I’m satisfied for that matter Y, as well – at this stage is best achieved by suspending the present time orders.  I’m concerned that if X, who is 13, is forced, in effect, to spend time with her father, that it may be harmful for her mental health.  In the circumstances, I think Y should not be forced to go alone.  So I propose to make orders suspending the orders of 24 December 2014 in relation to time. 

8. I also propose to make an order that the parties and the children attend a section 11F conference on 7 July at 9 am. The court will be provided with a memorandum after that. I also propose to adjourn the matter for interim hearing in relation to the children’s time with her father to 23 July at 11 am. I also propose to make a section 69ZW order in relation to any investigation carried out by Territory Families.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 22 July 2020