Madera and Nardos (No.3)

[2020] FCCA 609

FEDERAL CIRCUIT COURT OF AUSTRALIA

MADERA & NARDOS (No.3) [2020] FCCA 609

Catchwords:
FAMILY LAW – Parenting – where there is a succession of allegations made by the father and the children that the mother assaulted the children – where the truth of allegations has not yet been determined or fully investigated – where there are serious allegations of physical abuse of a child meriting the attention of a superior Court – the matter be transferred to the Family Court.

Legislation:

Family Law Act 1975 (Cth)

Criminal Law Consolidation Act 1935 (SA)

Cases cited:

Rice & Asplund (1978) 6 FamLR 570

Applicant: MS MADERA

Respondent: MR NARDOS

File Number: ADC 4651 of 2012

Judgment of: Judge Young

Hearing date: 3 March 2020

Date of Last Submission: 3 March 2020

Delivered at: Adelaide

Delivered on: 3 March 2020

REPRESENTATION

Counsel for the Applicant: Mr Anderson

Solicitors for the Applicant: CG Family Law

Counsel for the Respondent: Mr Childs

Solicitors for the Respondent: Son Nguyen Barrister & Solicitor

ORDERS

1. The matter be transferred to the Family Court of Australia Adelaide Registry, to be listed on a date and time to be advised to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Madera & Nardos (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4651 of 2012

MS MADERA

Applicant

And

MR NARDOS

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 was a matter that I adjourned from 12 December 2019, following allegations raised by the father around that time that the mother had assaulted [Y], the son of the parties, who is 11, almost 12 years old.  I adjourned the matter to today on the assumption that the South Australian Police would have completed their investigation of the allegations made against the mother arising out of whatever happened, if anything, on 7 December 2019 and, if she was going to be charged with a criminal offence, that charge would have been laid by now, and if she was not going to be charged then that would also be clear.

3. The parties have filed some further affidavit material in relation to that issue, and the matter has regrettably not been taken much further.  The father recounts hearsay statements from Senior Constable B, who according to the father, at least, says that he expects the mother to be charged with an aggravated assault following the incident.  What is alleged against the mother is a little bit unclear.  In very summary terms, it is said that the mother began arguing with [Y] and he was struck on the head, I think with an open hand, and in the fracas also received scratches behind his right ear.

4. As I read the police material, the scratches behind [Y]’s right ear were actually observed by, I take it, a police officer, so it may be that there is some independent evidence that [Y] received some scratches behind his ear. That, of course, doesn’t mean that there has been an aggravated assault.  There could be any number of explanations for that.

5. The mother, in her affidavit filed on 28 February 2020, focuses on the father’s withholding of the children and breach of orders.  As far as I can see from the affidavit she does not deal with the events, whatever the events were, on 7 December 2019.  In the ordinary course, what is alleged against the mother might not be so serious, but the seriousness, in my view, is increased because there have been a succession of allegations raised by the children against their mother at different times since 2018 of physical assault on children.  This would constitute, I assume, aggravated assault under the South Australian Criminal Law Consolidation Act 1935 (SA). I am assuming this, because as far as I know, an assault on a child under every criminal code in Australia constitutes an aggravated assault.

6. On at least two previous occasions in 2019 allegations of this kind have been made. In the reasons I published on 12 December 2019, I pointed to some of the matters that raised question marks about the reliability of the allegations and the evidence against the mother, insofar as that evidence rested on what the children have said.  It is noteworthy that, as I said on 12 December 2019, the children had been interviewed by the police in relation to earlier allegations, and the police concluded that what the children said was unreliable.

7. Nevertheless, there is a serious allegation made against the mother which, if true, may constitute an aggravated assault.  It is the last in a succession of allegations made against the mother by the children since 2018.  As I said to counsel, I have on previous occasions expressed doubts about the reliability of the allegations and been unwilling to change the children’s care arrangements on the basis of those allegations.  Nevertheless, I have not, I think, made any findings on those occasions about whether the allegations are true or false.  On each occasion, I have dealt with the matter as an interim hearing and tried to observe the limitations incumbent upon a Court in conducting an interim hearing where the parties did not give oral evidence and are not cross-examined.  Nevertheless, the allegations are serious and they are allegations which, if true, would constitute serious physical abuse of a child. 

8. I consider the fact of the repetition of these allegations in different forms since 2018 raises a very serious question.  If they are true, then that reflects very seriously or adversely on the mother’s parenting capacity, and indeed her fitness as a parent.

9. On the other hand, if they are not true or if they are significantly exaggerated, the question which arises is what is the genesis of these allegations?  The mother’s case is that the genesis of the allegations is that the father has encouraged the children to make false allegations against the mother.  As I said in the reasons I published on 12 December 2019, there is some information that indicates there may be some truth to that.

10. If a Court found that were the case, then the Court would have to consider very seriously what response ought to be made given.  Such a finding would reflect very adversely on the father’s parenting capacity, and raise questions about whether it was in the best interests of the children that they spend any time with him.

11. So the stakes in this case have been raised pretty high, I think, by these allegations.  In my view, they are allegations of such seriousness that they merit the attention of a superior Court.  Mr Anderson was concerned that if I transferred this matter to the Family Court it would not be dealt with as soon as it might be dealt with in this Court.  Mr Anderson estimated a trial would take three days.  Mr Childs for the father estimated the trial would take three to four days.  Having regard to the state of my case docket at the moment, I would not have a trial of that length in this matter before March 2021 – in other words, a year away.

12. That is the regrettable state of affairs in this Court.  I do not see that it is likely to be dealt with much sooner here than in the Family Court.  However, that is not really the issue that motivates me, or the factor that motivates me in the decision I have made.  There is a protocol between this court and the Family Court, and one of the categories of case that has been agreed as meriting a transfer to the Family Court is where there are serious allegations of physical abuse of a child meriting the attention of a superior Court.  I am satisfied that that category applies here and I propose to transfer the matter to the Family Court. 

13. I should also say, for the sake of completeness, that I adjourned the matter to today for a Rice & Asplund hearing.  Having indicated that I propose to transfer it, I am reluctant to say too much about Rice & Asplund, but in my view, having regard to all of the material, there would be a proper basis for a Court deciding that all matters in this case ought to be reconsidered.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  17 March 2020