FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nalder & Cato & Nalder [2024] FedCFamC2F 721
File number(s): ADC 3539 of 2021 Judgment of: JUDGE PARKER Date of judgment: 6 June 2024 Catchwords: FAMILY LAW – PARENTING – allegations of emotional manipulation of children and ‘pathogenic parenting’ by Mother – where Mother found not to pose an unacceptable risk to children
FAMILY LAW – PARENTING – unacceptable risk – where the Father conducted himself throughout the proceedings in a manner which was abusive, threatening and intimidating towards the Mother, the Mother’s legal representatives, the Independent Children’s Lawyer and the Court – where the Father subjected the Mother to coercive and controlling violence – where the Father refused to comply with an order for a psychiatric assessment – where the Father poses an unacceptable risk to the children – no time or communication ordered between Father and children
FAMILY LAW – PARENTING – application by paternal grandparents – where children refused to spend time with grandparents at contact centre – where grandparents declined to pursue reunification therapy – where there is a risk that time with grandparents would result in exposure to Father – where paternal grandparents found to be unlikely to shield children from hostility towards Mother – no time or communication ordered between paternal grandparents and children
FAMILY LAW – PRACTICE AND PROCEDURE - Where an order made pursuant to section 102NA of the Family Law Act 1975 (Cth) applies and the Father refused to avail himself of legal representation through the Family Violence and Cross-Examination of Parties Scheme – where Mother’s evidence is largely unchallenged and is accepted
Legislation: Evidence Act 1995 (Cth) ss 79, 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64B, 65DAA, 69ZN, 69ZX, 102NA
Family Law Amendment Act 2023 (Cth) s 12(b)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rule 8.15(3)(e)
Cases cited: A & A [1998] FamCA 25; (1998) FLC ¶92-800
Agapis v Birmingham DCJ [2013] WASC 329
Akston & Boyle [2010] FamCAFC 56; (2010) FLC ¶93-436
B & B (Access) [1986] FamCA 52; (1986) FLC ¶91-758
B & B [1993] FamCA 143; (1993) FLC ¶92-357
Bain & Bain (Deceased) [2017] FamCAFC 80; (2017) FLC ¶93-772
Bant & Clayton [2019] FamCAFC 198; (2019) FLC ¶93-924
Bielen & Kozma [2022] FedCFamC1A 221
Blinko & Blinko [2015] FamCAFC 146
Bradley v The Crown [2020] QCA 252
Brown & Pederson [1989] FamCA 8
Browne v Dunn (1893) 6 R 67 HL
Carter & Wilson [2023] FedCFamC1A 9; (2023) FLC ¶94-129
Champness & Hanson [2009] FamCAFC 96; (2009) FLC ¶93-407
Cotton & Cotton [1983] FamCA 18; (1983) FLC ¶91-330
Cubbin & Cutler [2018] FamCAFC 84
Dennison & Wang [2010] FamCAFC 182
DL & W [2012] FamCAFC 5; (2012) FLC ¶93-496
Ellis v Wallsend District Hospital (1989) 17 NSWLR
Friscioni & Friscioni [2010] FamCAFC 108
Grier & Grier [2023] FedCFamC1A 32; (2023) FLC ¶94-135
Hall & Hall [1979]…
Continue reading Nalder & Cato & Nalder
Sign in free to access the full text
- AGLC
- Nalder & Cato & Nalder [2024] FedCFamC2F 721
- Case
- [2024] FedCFamC2F 721
- Decision Date
CaseChat Overview and Summary
The court needed to assess the allegations of pathogenic parenting and coercive control against the mother, as well as the father’s conduct, which included refusal to comply with a psychiatric assessment order and a pattern of abusive, threatening, and intimidating behavior. The court also had to consider the potential risk to the children if they were to spend time with the paternal grandparents, given the risk of exposure to the father’s hostility towards the mother. The court was tasked with determining whether there was an unacceptable risk posed by either parent or the paternal grandparents to the children’s welfare.
In its judgment, the court found that the mother did not pose an unacceptable risk to the children, but the father did. The father’s conduct throughout the proceedings was deemed abusive, threatening, and intimidating, and he had subjected the mother to coercive and controlling violence. The court accepted the mother's largely unchallenged evidence and found the father's refusal to comply with a psychiatric assessment significant. The paternal grandparents were deemed unlikely to shield the children from the father's hostility towards the mother. Consequently, the court determined that no time or communication should be ordered between the father and the children, or between the paternal grandparents and the children. The mother was awarded sole parental responsibility, and the children were to live with her. Limited correspondence was permitted for specific occasions, subject to strict conditions.
The court made several orders, including discharging all previous parenting orders and appointing the mother as the sole parent with responsibility for the children. The children were to have no contact with their father or paternal grandparents, except for age-appropriate, child-focused correspondence at Christmas and on their birthdays, subject to stringent conditions. The father was allowed to obtain copies of the children's school reports and photographs at his own expense. The court also issued injunctions against all parties to prevent them from abusing, criticizing, or discussing the proceedings with the children. The appointment of the Independent Children's Lawyer was discharged, and all other applications were dismissed.
Orders
Orders of the court
ADC 3539 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR NALDER
Applicant
AND:
MS CATO
First Respondent
MR B NALDER AND MS C NALDER
Second Respondents
AND:
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
6 JUNE 2024
THE COURT ORDERS THAT:
1. All previous parenting orders be discharged.
2. The Mother have sole parental responsibility for the children X born in 2013 and Y born in 2017 (‘the children’).
3. The children live with the Mother.
4. The Father and the Paternal Grandparents be at liberty to send each of the children a letter, card and/or gift for the purposes of Christmas and to each child on their respective birthdays on the following basis:
(a) Within 14 days of the making of this order, the Mother shall provide to the Father and the Paternal Grandparents in writing directly or via her solicitor an address to which the Father be permitted to send such correspondence and she shall forthwith notify the Father and the Paternal Grandparents by email of any change to such address;
(b) The letter, card or gift sent by the Father and/or the Paternal Grandparents shall be age appropriate, child-focused, and shall not in any way detail these proceedings or any dispute between the parties or denigrate the Mother or any other person;
(c) The Mother shall be permitted to open any letter, card or gift sent by the Father and/or the Paternal Grandparents to the children and shall, in her sole discretion, be at liberty to determine whether the letter, card or gift complies with paragraph 4(b) hereof;
(d) In the event that the Mother considers that the letter, card or gift complies with paragraph 4(b) hereof, then the Mother shall facilitate the children receiving the gift and shall encourage the child or children to respond to the Father and/or the Paternal Grandparents in writing to acknowledge receipt of, and thank him or them for, the said letter, card or gift.
5. The children otherwise spend no time and have no communication with the Father or the Paternal Grandparents.
6. The Father be at liberty to obtain, at his sole expense, copies of the children’s school reports, photographs and other documents ordinarily provided to parents by the children’s school.
7. The Mother shall notify the Father and the Paternal Grandparents by email as soon as practicable in the event that either of the children suffers a serious illness or injury.
8. All parties be restrained and an injunction is hereby granted restraining them from:
(a) Abusing, denigrating, criticising or rebuking any other party to these proceedings in the presence or hearing of the children, or from allowing any other person to do so; and
(b) Discussing these proceedings, or any allegation made in these proceedings, with the children, or from allowing any other person to do so SAVE AND EXCEPT to inform the children of their care arrangements arising from these proceedings.
9. The appointment of the Independent Children’s Lawyer is hereby discharged.
10. All extant applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.