Hickson and Green

[2016] FamCA 1032

FAMILY COURT OF AUSTRALIA

HICKSON & GREEN [2016] FamCA 1032

FAMILY LAW – PARENTING – Interim – Where there are four subject children – Where one is not a biological child of the father – Where that child lives with the mother, separate from the other three siblings – Where the mother fails to comply with existing orders – Where the mother fails to make the child available for contact with the siblings – Where the recommendation of the Family Consultant is a change of residence for the child – Where that change of residence would result in that child living with his siblings – Ordered that the child live with the father – Ordered that the father collect the child from school this day – Requested that the Independent Children’s Lawyer be present at the school to explain the orders to the child

APPLICANT: Mr Hickson

RESPONDENT: Ms Green

INDEPENDENT CHILDREN’S LAWYER: Hannaway Lawyers

FILE NUMBER: (P)NCC 2356 of 2015

DATE DELIVERED: 25 November 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

EX TEMPORE JUDGMENT OF: Cleary J

HEARING DATE: 25 November 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Priest Legal

SOLICITOR FOR THE RESPONDENT: William John Culf

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hannaway Lawyers

Orders

1. The interim Orders of 20 September 2016 made in relation to B born … 2008 (“B”) in the Federal Circuit Court are suspended.

2. Order 2 of the interim Orders by consent made 23 June 2016 in the Federal Circuit Court that the children C born … 2006, B, D born … 2010 and E born … 2010 (“the children”) spend time with the mother is suspended until the interim hearing of this matter.

3. The child B born … 2008 be returned to live with the father forthwith with the father to collect the child from school this day.

4. The Independent Children’s Lawyer will attend at B’s school with the father this afternoon to explain these orders to the child and to provide a copy of the Orders to the principal of the school.

5. Leave is granted to the Independent Children’s Lawyer to provide to the Child and Adolescent Mental Health Services (CAMHS) with the following documents;

   (a)       Child Inclusive Conference Memorandum dated 5 February 2016;

   (b)       Family Report dated 21 June 2016; and

   (c)       Child Inclusive Conference Memorandum dated 9 November 2016.

6. The matter is listed at 10.00 am on Friday 10 February 2017 for an interim hearing when consideration will also be given to directions for a final hearing.

7. Leave is granted to the Applicant father to prepare and provide to the other parties and to my Associate (by email:…) a Minute of Order proposed for interim orders.

8. Leave is granted to the Respondent mother to prepare and provide to the other parties and to my Associate (by email:…) a Minute of Order proposed for interim orders.

9. Leave is granted to the Independent Children’s Lawyer to prepare and provide to the parties and to my Associate (by email: …) a Minute of Order proposed for interim orders.

10. In the event the child B attends at the mother’s home then the mother must immediately make arrangements with the father to return the child to the father’s house.

11. Each party is restrained from discussing these orders and proceedings generally with the children or any of them.

12. Each parent shall ensure that these orders are complied with and that no pressure is to be put on the children by the mother to return to her care.

13. The father is to ensure that B continues to see his psychologist Mr F.

14. Leave is granted to the Independent Children’s Lawyer to provide a copy of these orders and reasons for judgment (in due course) to Mr F NOTING that Mr F has been speaking to the mother and should continue to have input from the mother to assist in his therapeutic counselling with B.

NOTATION

(A)The Family Consultant was available and gave evidence during the course of this Court event.

(B)The solicitor for the mother advised the Court that the grant of Legal Aid has been terminated and an appeal against that decision will be made.

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 Hickson & Green 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 NEWCASTLE

FILE NUMBER: NCC 2356 of 2015

Mr Hickson

Applicant

And

Ms Green

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. In this matter, the matter has been listed before me with all urgency.  It was transferred from the Federal Circuit Court on 9 November 2016 to this Court.

2. There was a notation that it appears agreed in the proceedings that B began making homicidal threats to slit the throats of those in the paternal household, approximately some eight weeks ago.

3. Since that time, the child B has lived with the mother.

Evidence and Procedural History

1. The children C, E and D have lived with the father.  C, E and D spend time with the mother and B, supervised at G Group, H Town.  The Family Consultant recommends the appointment of a Chapter 15 Expert.

2. The position before me today is that the Family Consultant has helpfully made herself available on short notice to give evidence on this topic. 

3. Her view is expressed, on 9 November 2016, that B should be returned to the household with his father and three siblings, and that if he is to be returned then something would need to be put in place to support the arrangement. 

4. This would include a plan where the mother understands her obligation to return the child to the father if he did run away, as has been foreshadowed by the child and the mother. 

5. The Family Consultant has also recommended counselling with a psychologist and a referral to the Child and Adolescent Mental Health team as soon as possible, with the possibility of further referral to a child psychiatrist. 

6. I accept that there is real urgency in this matter. 

7. Orders were made on 23 June 2016 by consent in the Federal Circuit Court that all four children live with the father, and that the children would spend time with the mother for two hours each week supervised by G Group. 

8. The parties were to undertake urinalysis at the request of the Independent Children’s Lawyer.  In that regard, the ICL says that he has requested two tests from the father, both of which have been clean screens.  He has requested three tests of the mother and there has been no response to those requests.

9. In relation to spending time at G Group, the evidence is unclear, but the mother says she may have missed four appointments to see the children supervised at G Group, and that has been because she has not been able to afford to go. 

10. On behalf of the father, it is said that G Group records indicate that at least nine appointments have been missed by the mother, and that the children are beginning to be doubtful about whether or not their mother will attend on each occasion. 

11. Most significantly, B has not spent time with his father, according to an interim consent order which was made on 20 September 2016.  That order was made in the context of B going to live with his mother and the father feeling overwhelmed as to what to do. 

12. The mother made the decision to tell the child that he was not the biological child of the father and that may or may not have had a considerable impact on the child. 

13. He was presented once for time and that occasion broke down after 15 minutes.  Since then, the time has not been spent with the father as ordered. 

14. The father has seen the child at school, and is reported to have simply walked past him and not acknowledged him.

15. It is a most serious situation, especially as the Family Consultant refers to B as the most vulnerable of the four children. 

Conclusion

1. In those circumstances, the appropriate course is to make an order for B to be returned to the care of his father.

2. He will, no doubt, find it extremely difficult to cope with that situation and for that reason I have asked the Independent Children’s Lawyer, who has agreed at considerable personal cost to himself, to be present at the school today in order to provide a copy of the orders to the principal, and to explain to B what has been put in place. 

I certify that the preceding twenty (20) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Cleary delivered on 25 November 2016.

Associate: 

Date:  1 December 2016