BAGNELL & KADAR

[2017] FamCA 571

FAMILY COURT OF AUSTRALIA

BAGNELL & KADAR [2017] FamCA 571

FAMILY LAW – CHILDREN – Equal time – Best interests

FAMILY LAW – INJUNCTIONS – Protection of child

APPLICANT: Ms Bagnell

RESPONDENT: Mr Kadar

INDEPENDENT CHILDREN’S LAWYER: Ms McGregor

FILE NUMBER: PAC 617 of 2016

DATE DELIVERED: 2 August 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 2 August 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Kim Bolas Legal Group

SOLICITOR FOR THE RESPONDENT: Byles Anjos Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. Order 1 of the orders made by Judge Neville on 27 June 2017 suspending the orders of 18 November 2016 is discharged and those orders are reinstated.

2. The week about arrangement at Order 4 of the consent orders made by Judge Newbrun on 18 November 2016 is to recommence so that the children, B, born … 2013, and C, born … 2014, are to recommence time with their father from 6:30pm today with changeover to occur at the McDonald’s in D Town, New South Wales, and thereafter in accordance with the orders of 18 November 2016.

IT IS NOTED THAT

A.The parties each agree to cooperate with the New South Wales police force and Family and Community Services, New South Wales, in the investigation of the matters raised in these proceedings.

B.The parties each wish to attend upon the authorities when those authorities are interviewing the children notwithstanding that they may not be able to attend during the interview.

C.Each party agrees to notify the other party in the event that they are contacted by the investigating authorities to arrange an interview.

D.The parties are at liberty to seek a relisting of this matter on 48 hours’ notice provided they give notice to the other party and to the Independence Children’s Lawyer of their intention to do so.  The matter will then be listed in accordance with its urgency subject to the availability of the Court to hear the matter.

IT IS FURTHER ORDERED THAT

1. The matter is otherwise adjourned to 10am on 4 December 2017 for a further mention, directions or interim hearing.

2. In the event that the parties are seeking further substantive orders on 4 December 2017 they are to file and serve any application and material relied upon 14 days in advance of that date and any response and material relied upon seven days in advance of that date.

3. The mother will not permit the children to be left alone with her partner, Mr E, nor bathed by him nor changed by him pending further order of the Court and it is noted that this order is made with the consent of the mother.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: PAC 617 of 2016

Ms Bagnell

Applicant

And

Mr Kadar

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me with a history of the parties entering into consent orders for a week about arrangement where the children would live one week with the father and one week with the mother.  During the week that they lived with one parent they had electronic communication with the other parent on three occasions.  Those consent arrangements were entered into in November 2016. 

2. In late May 2017 the father commenced to withhold the children from their time with their mother.  This was done on the basis of concerns that he says arose from what he interpreted to be sexualised conduct on the part of one of the girls, a touching by that girl of her vagina and anus, nightmares where the child referred to the mother’s partner Mr E and the child’s comments that her vagina was her flower which was not to be touched by anyone.  The father took steps to involve the police in an investigation of this matter and one has commenced.  That investigation is not completed.  Exhibit F2 indicates that the investigating officer Detective F has been unable to continue with the investigation as he has been unable to secure either of the children for the purpose of an interview and he says that he has taken steps to contact the mother and Mr E but those have been unsuccessful.

3. The mother has previously indicated to Judge Neville that she would cooperate with the police investigation and has reiterated that with me today.  She has indicated that she will make contact with and Detective F in order to enable the investigation to proceed. 

4. The mother has expressed some concerns that the father may breach orders if time is reinstated between he and the two girls.  This is on the basis that she says that the father was served with documents but denies having been served with documents before an ex parte hearing before Judge Neville.  Whether or not the material that was served on him by email came to his attention or not is not a matter that I can make findings on in these interim proceedings.  The matter did proceed to an ex parte proceeding before Judge Neville which resulted in the consent orders being suspended pending further order.  A recovery order issued and it does not seem to be an issue but that the father complied with the recovery order.  The children have been in the care of the mother since that time.  It appears that they have had almost no contact with their father whatsoever during this time.  This is explicable on the mother’s case to the Court where she has expressed a concern that the father will withhold the children again.

5. The circumstances have fundamentally changed since the father withheld the children and commenced cooperation with an investigative process.  The fundamental changes are that the courts have now been involved and currently have proceedings before them in relation to the matter.  The mother has successfully obtained a recovery order, the father is participating in these proceedings, the father can be under no misapprehension about the fact that should the children be withheld in the context of current proceedings that there will be little option other than the issue of a further recovery order and the potential suspension of time between him and the children.  It is now a significant period of time since he has been able spend any time with these children.  Relying upon the exchanges that have taken place during the interim hearing of this matter there is not an issue of unacceptable risk presented even on an acceptance of the evidence that has been presented to the Court at its highest of an unacceptable risk (I realise that is inelegantly expressed) arising in the mother’s household from the presence of Mr E.  Likewise, there is not an unacceptable risk or even a significant risk arising from the previous withholding of the children by the father.  That was done in a context of matters which could have given him cause for concern, he now operating under circumstances where those matters are before the Court, are the subject of an investigation and the proceedings are before the Court.  I do not accept that there is at present a risk that the father will withhold the children.

6. A matter was raised by the Independent Children’s Lawyer as to whether or not the mother would, pending further investigation of the matter, accede to orders that would mean that Mr E, her partner, would not be left alone with the girls, bathe the girls or change the girls.  Mr E has been present in court during the hearing of these proceedings.  The mother has agreed that she would comply with such a regime.  Given her agreement with such a regime, despite the fact that I do not have a basis on which to conclude that Mr E presents any unacceptable risk to the girls it seems to be a reasonable practical arrangement for him not to bathe, change or be alone with the girls pending a finalisation of the investigation.  That will act in a protective manner of any relationship he might be developing with the girls.

7. The remaining question then is as to what regime should be in place given that I have concluded that the evidence does not establish, even accepted at its highest, an unacceptable risk to the girls in either of the households.  It seems likely that there is a significant risk that the parties will struggle to cooperate with each other in the context of what has just occurred.  Despite that risk, given that there was an established arrangement for the girls to spend a week about arrangement in each of the households and given that regime was the consequence of consent orders that had previously been entered into by the parties, it seems appropriate to return to that pending a further consideration of the matter

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 2 August 2017.

Associate: 

Date:  7 August 2017