Achebe and Okigbo

[2015] FamCA 97

FAMILY COURT OF AUSTRALIA

ACHEBE & OKIGBO [2015] FamCA 97

FAMILY LAW – Adjournment – consideration of appropriate parenting arrangements for the children of the parties involving serious allegations of physical harm resulting in charges of assault occasioning bodily harm

APPLICANT: Ms Achebe

RESPONDENT: Mr Okigbo

INDEPENDENT CHILDREN’S LAWYER: Forest Glen Lawyers

FILE NUMBER: BRC 9757 of 2012

DATE DELIVERED: 24 February 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 24 February 2015

REPRESENTATION

APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Bunning

SOLICITORS FOR THE RESPONDENT: Dean Kath Kohler

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Oakley

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Forest Glen Lawyers

Orders

IT IS ORDERED THAT

1. The hearing of this matter is adjourned to five (5) days, commencing 10.00 am on Wednesday, 22 April 2015.

2. If the mother intends to rely upon evidence of any person other than those who have already filed affidavits, she must file and serve an affidavit for any such person by no later than 4.00 pm, on Tuesday, 24 March 2015.

3. If the mother fails to file any affidavit in compliance with Order 2 herein, she will not be permitted to rely upon the evidence of any person at trial.

4. The father may file an affidavit, strictly in reply to any material filed by the mother in accordance with Order 2, by no later than 4.00 pm on Wednesday, 8 April 2015.

IT IS DIRECTED THAT

1. The Independent Children’s Lawyer provide a copy of the Reasons for Judgment delivered ex tempore (once settled) to Legal Aid Queensland for consideration of the parties’ respective applications for the provision of Legal Aid.

IT IS REQUESTED THAT

1. Given the complex nature of the allegations before the Court, the potentially serious consequences for eight children, the fact that English is not the first language of either party and that this matter requires substantial forensic analysis, the Court respectfully requests Legal Aid Queensland give consideration to the Reasons for Judgment delivered by her Honour Justice Hogan 24 February 2015 in its determination of the respective parties’ applications for aid.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Achebe & Okigbo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9757 of 2012

Ms Achebe

Applicant

And

Mr Okigbo

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The matter involves consideration of appropriate parenting arrangements for the eight children of the parties, who range in age from about 14 to about two.  It involves serious allegations of physical harm to some of the children.  Those allegations resulted in the mother facing charges of assault occasioning bodily harm.  After Judge Richards from the District Court commenced the trial process, in the sense of taking pre-trial evidence from each of the children, the complainants, the Officer of the Director of Public Prosecutions entered a nolle prosequi in relation to all of those charges.

2. A perusal of the evidence before the Court at this stage, though, makes it apparent that the consequences of the allegations, the charges and the conclusions reached by various authorities in relation to the allegations, has had a longstanding impact upon the parenting arrangements for these children. 

3. The matter requires the Court, therefore, to undertake, in essence, a forensic assessment of the evidence before it in order to determine the likelihood or otherwise of the parties’ competing assertions that the other is the parent responsible for inflicting harm on the children.

4. In that manner, then, this particular case is, in one sense, closer to the nature of a quasi criminal inquiry, even taking into account the applicable principles set out by the High Court in M & M - which make it clear that a focus upon resolution of allegations of, in that case, sexual abuse and, in this case, physical abuse, are subservient to the Court’s obligation to determine the orders which are in the children’s best interests, having regard to the mandatory statutory considerations. 

5. The complexity of this matter is amplified by the fact that neither parent is a person for whom English is their first language.

6. Additionally, at this stage at least, the mother has represented herself before me.  Given the nature of the allegations and, importantly, the potential consequences for the children and their opportunity to have meaningful relationships with either of their parents, and both of them - one of the primary considerations for this Court – this is a case in which the Court would be greatly assisted by any arrangements which could see both of the parties and the Independent Children’s Lawyer afforded the opportunity to have legal representation.

7. In that way, this Court will be assisted to arrive at its conclusions in relation to parenting arrangements for not one but eight children who, as I have said, range in age from two years to 14 years. 

8. For these reasons the Court respectfully requests that Legal Aid Queensland give due consideration to the applications from each parent and the Independent Children’s Lawyer for the provision of legal aid to assist the proper conduct of this matter and to ensure that, whatever decision is ultimately arrived at, each party and - more importantly - the children can proceed secure in the knowledge that that decision is arrived at on a proper basis, having heard proper argument with the benefit of proper investigation and cross-examination by legal representatives on behalf of each party. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 24 February 2015.

Associate:                 

Date:    24 February 2015