Fisher and Hickey

[2017] FCCA 735

FEDERAL CIRCUIT COURT OF AUSTRALIA

FISHER & HICKEY [2017] FCCA 735

Catchwords:
FAMILY LAW – Parenting – adjourned final hearing – young child – escalating family violence – spend time with orders suspended.

Legislation:

Family Law Act 1975, ss.62B, 65DA(2), 68Q

Applicant: MS FISHER

Respondent: MR HICKEY

File Number: MLC 7575 of 2015

Judgment of: Judge Harland

Hearing date: 23 March 2017

Date of Last Submission: 23 March 2017

Delivered at: Melbourne

Delivered on: 23 March 2017

REPRESENTATION

Counsel for the Applicant: Ms. Jeans

Solicitors for the Applicant: Bowlen Dunstan & Associates

The Respondent: No appearance

ORDERS

1. The matter be adjourned to 2 October 2017 at 10.00am for final hearing (with an estimated hearing time of 1 day).

2. The parties not be permitted to rely on material filed less than (3) three working days prior to the next Court event.

3. Any Subpoena material to be relied upon at the Contested Hearing must be made returnable at least (3) three days prior to the Hearing.

4. Pursuant to order 2 & 3 herein, leave will only be granted in circumstances of urgency.

5. Until further order, order 3 in the minute of consent of the orders made 23 February 2016 be suspended and the father spend no time with X born (omitted) 2015 (“the child”).

6. The father be restrained from contacting the mother or the child in any way.

7. The mother have sole parental responsibility for the child.

8. The child live with the mother.

9. Pursuant to Section 68Q of the Family Law Act 1975 the extent to which this order is inconsistent with any family violence order between the parties, the family violence order is invalid.

10. Costs be reserved.

DIRECTING

1. The Registrar provide a copy of these orders to the Registrar of the Magistrates’ Court of Victoria Melbourne Registry.

NOTING

1. The matter is listed with priority at the next Court event.

2. Due to family violence allegations and concerns, the next Court event will proceed with the mother and her legal representative attending in an alternate court room to the father and his legal representative.

3. The matter may proceed on an undefended basis if the father does not appear on the next occasion.

4. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7575 of 2015

MS FISHER

Applicant

And

MR HICKEY

Respondent

REASONS FOR JUDGMENT

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 matter was listed for a final hearing for parenting matters concerning X, born (omitted) 2015 (“X”).  The father has not attended Court today.  He rang and said he was ill.  He left a telephone number, but Ms Jeans, counsel appearing for the mother, has been unsuccessful in calling him.  Apparently, his notice for address of service is out of date, so he does not have the family report and the latest material.  Because of those reasons, I am not satisfied that I can make final parenting orders today, but I am sufficiently concerned based on the affidavit that Ms Fisher filed in February 2017 and the further information I have been given today that the father’s violent behaviour has escalated, both with respect to Ms Fisher but also another former partner of his, Ms S.

3. The mother’s solicitor has subpoenaed the police records which confirm very concerning violent incidents similar in nature with respect to Ms S that are similar to complaints that the mother has made.  The father has not filed any material since his first affidavit in October 2015. The family report gives a flavour of his attitude to these matters which is, in my view, a sense of entitlement without much sense of responsibility.  Whilst the report indicates that he has positive interactions with X and she enjoys his time, it does not give me any sense that he really has any maturity or understanding as to the responsibilities of parenthood which is in contrast to the mother’s presentation to the family report writer.

4. The family report writer observes that the father did not bother to turn up the first time and did not turn up to the second appointment until some 40 minutes later after being reminded to come.  He had indicated that he would pay the cancellation fee but has not done so.  It just shows a disregard for the importance of these matters.  The family report writer was recommending that his time could move away from supervised time – it is currently supervised by family members – but recommended that family members be in substantial attendance.  But the circumstances surrounding the timing of the report interviews is quite different to the circumstances today and the family report writer noted herself that the parties were attempting to reconcile at that time.

5. What is clear from the material filed by the mother since then and also supported by her parents is that that the reconciliation did not work out.  That was due to the father’s conduct.  If anything, the father’s conduct has worsened.  There has also been concerns about handovers which have been taking place at a police station because the mother is fearful of the father.  Currently, the mother does not know where the father lives, therefore when X is taken for time; there is a risk that he might not return her.  It is not known where he takes her.  There is no recent material from his mother who supervises that time.  His mother did not attend the family report, I suspect because she probably was not told by her son about the interviews.

6. So whilst on the one hand I have information, and updated information, from the mother and her family and her (both her parents were interviewed by the family consultant) I am lacking information from the father’s side of the family.  I have real concerns about X’s safety as well as the mother’s safety if the father comes into contact with them, currently.  My concern currently is that the risks to X outweighs the benefits of her spending time with her father.  I am going to suspend the interim orders for the father to spend time with X.  I acknowledge that the mother is worried about consequences of this, but the mother has recently moved and the father does not know where she is and that gives some level of comfort.

7. The father is facing further criminal proceedings with respect to breaches of the intervention order that the mother has in her favour and that matter is in Court on 4 April 2017.  That is separate to any criminal charges he is facing with respect to Ms S who is another former partner of his who has also been subject to serious family violence.  Ms S has been subpoenaed to give evidence.  She has not been required today because the matter is not proceeding but may be in the future.  As I have indicated during the hearing, I am going to make orders that two courtrooms be made available so that the mother and her witnesses will not have to be in the same courtroom as the father. Security will be present so that they can be assured of their safety during these proceedings.  This assumes that the father attends and participates in the proceedings.  There is some question mark about that.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  12 April 2017