Nigel and Nigel

[2019] FamCA 189

FAMILY COURT OF AUSTRALIA

NIGEL & NIGEL [2019] FamCA 189

FAMILY LAW – CHILDREN – Recovery Order.

APPLICANT: Ms Nigel

RESPONDENT: Mr Nigel

INDEPENDENT CHILDREN’S LAWYER: Ms DeVere

FILE NUMBER: PAC 1055 of 2017

DATE DELIVERED: 30 January 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 30 January 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schroder

SOLICITOR FOR THE APPLICANT: Mark Brown & Associates

COUNSEL FOR THE RESPONDENT: Mr Fermanis

SOLICITOR FOR THE RESPONDENT: Phillip A Wilkins & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms DeVere

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER. Legal Aid NSW Parramatta Family Law

Orders

1. The remainder of the hearing dates being 31 January 2019 and 1 February 2019 are vacated.

2. Pursuant to section 67U of the Family Law Act 1975, a Recovery Order be prepared in respect of the child X born … 2004 and that such order remain in the Registry and not issue in the event the child is delivered to Child Dispute Services by 3pm today.  After delivery the adult who has brought the child to Child Dispute Services is to leave the precincts of the court unless he/she agrees to participate in the process of the child passing into the care of his mother as requested by the family consultant and or the Independent Children’s Lawyer. 

3. Orders are made in accordance with Part C of the Minute of Order sought in the mother’s case outline.

4. Pending further order, orders are made in terms of paragraphs 1 to 9.1 deleting the words “for a period of three months” at beginning of 9.1, 14 to 20, 22 is amended by deleting the words “other than for the purpose of changeover of the children” after the words “after schools”, 23 should end with the words “communication with the children or any of them” deleting the words “after any of them”, 1.50pm

FURTHER ORDER

1. Pursuant to section 67U of the Family Law Act 1975, a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child X born … 2004 (“the child”) and to deliver the said child to the Applicant and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.

2. For the purposes of facilitating delivery of the child to the mother in the event that the child is recovered prior to 6.30pm today the child is to be delivered to the Applicant at Child Dispute Services at the Parramatta Registry of the Family Court of Australia.  Entry to be gained to the Court building by the basement.

THE COURT NOTES

A.      It is anticipate that the child may be located at the paternal grandparent’s home at C Street, Suburb D.

THE COURT FURTHER ORDERS THAT

1. The proceedings are listed for completion of the final hearing for 5 days commencing 19 August 2019 before me and for the purposes of the further final hearing I make the following directions:

   a.Each of the parties is to prepare an affidavit in relation to events from 29 January 2019 and is to provide such affidavit to the other party and the Independent Children’s Lawyer no later than 14 days prior to the commencement of the resumed hearing.  Any application to rely upon such affidavit will be considered on the outset of the resumed hearing.  For these purposes the father is permitted to give instructions in relation to the events from 29 January 2019 only to his legal representative noting that he is currently under cross-examination.

   b.The family consultant is requested to prepare an addendum report in relation to the impact upon an individual’s parenting capacity when such parent has had a history of using cannabis.  In this regard the Independent Children’s Lawyer is to provide Exhibit 1 to the family consultant.

   c.In the event the family consultant does not have the appropriate expertise to provide an addendum report the Independent Children’s Lawyer has liberty to relist the proceedings before me for the purpose of obtaining a report from an alternate expert.

   d.It is also requested that the addendum report from the family consultant consider the progress of family therapy and counselling between the children and Dr B which is anticipated to have commenced prior to the resumed hearing.  In this regard the family consultant has leave to discuss the progress of such therapy with Dr B.

   e.The mother who holds sole parental responsibility for the children gives consent to Dr B discussing her therapy with the children with the family consultant.

2. The Independent Children’s Lawyer has leave to rely upon an affidavit from an appropriately qualified person with respect to interpreting the results of the hair testing of the father collected on 23 November 2018 and contained within Exhibit 1 provided that such affidavit is provide to the parties not less than 7 days before the resumed hearing.

THE COURT NOTES:

C.In light of the father’s presentation to court on 29 and 30 January 2019 and evidence contained in his affidavit concerning engagement with a psychologist, it is expected that the father may seek to rely upon the affidavit from a treating health professional.

THE COURT FURTHER ORDERS:

1. In the event that the father seeks on rely on the affidavit of a treating health professional, such affidavit is to be field by no later than 1 May 2019.

2. In the event the father seeks to adduce expert evidence concerning his mental health other than that of the treating practitioner, he is to file an Application in a Case and such application is to be listed before me by direct arrangement with my associate. Such application must be filed prior to 1 May 2019.

3. The father is to cause to be filed a transcript of the findings of the Magistrate in the criminal proceedings in relation to an assault charge of which he was convicted.  Such transcript is to be filed and provided to the mother and the Independent Children’s Lawyer by 1 May 2019.

THE COURT NOTES:

D.The power to impose the injunctions and restraints in orders 5, 6, 15, 22 and 23 made earlier today is section 68B of the Family Law Act 1975 (Cth) and such injunctions are for the personal protection of the children the subject of these proceedings and the mother of the children.

THE COURT ORDERS THAT

1. Pursuant to s68C of the Family Law Act 1975 (Cth), if a police officer believes, on reasonable grounds, that the person (The Respondent Mr Nigel) against whom the injunction is directed has breached the injunction by:

   (i) causing, or threatening to cause, bodily harm to the protected person; or

(ii) harassing, molesting or stalking that person

the police officer may arrest the Respondent without warrant.

1. Each of the parties and the Independent Children’s Lawyer has liberty to approach my Associate directly to relist proceedings in any circumstances that party considers appropriate.

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 Nigel & Nigel 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 PARRAMATTA

FILE NUMBER: PAC 1055 of 2017

Ms Nigel

Applicant

And

Mr Nigel

Respondent

REASONS FOR JUDGMENT

1. The parents each bring, respectively, an application that the children live with them, primarily, and spend time with the other parent.  The regime for the two younger children is a set defined amount of time that would amount to substantial and significant time.  So far as X is concerned that time is said to be in accordance with his wishes.  It cannot be that the father contends that the mother poses an unacceptable risk of harm, even though it was said yesterday that that is his case.  It does not sit with orders of that kind.

2. The family consultant, albeit that her evidence has not been tested, recommended in relation to the younger two children that they do live with the mother and spend time with the father, subject to there being a quarantine period or a period of no time.  She also recommended that so far as X is concerned, that so long as the court does not make a finding that the mother poses an unacceptable risk of harm to the child the family consultant recommended that he should also live with the mother. 

3. There is, in relation to all three children, no other person who is putting themselves forward to take on parental responsibility other than the mother.  It must be accepted that the father is currently, (for whatever reason which is unable to be ascertained) not capable of caring for these children, bearing in mind that the two younger ones are still fairly young, and the eldest one has very high needs.  There is no evidence that the father is assisted on a day-to-day basis in his home. 

4. The father presented himself today as incapable of participating in the proceedings.  He also gave evidence until shortly before the hearing was stopped that he was incapable of driving, that he was in an enormous amount of pain, and indicated that he was taking numerous medications.  In those circumstances, it could not be said that he currently has the capacity, for whatever reason, to be caring for these children, let alone as the sole carer.  In those circumstances, and where in relation to the younger two children he does not contend the mother poses an unacceptable risk of harm, then it certainly is the only alternative, and, in my view, in the best interests of the children that they live with the mother until further order.

5. So far as X is concerned, of course, at this stage I have to make some form of risk assessment.  It could not be said, in my view, that even if the father’s case were taken at its absolute highest, that the mother poses an unacceptable risk of harm on the basis that she may physically abuse the child.  There are set out in the father’s affidavit general allegations made in relation to physical abuse said to have been perpetrated by the mother against X, but he gives details of only one specific incident.

6. That incident in question occurred at a highly emotionally charged time when the parties were separating, an apprehended violence order had been made and the father had been charged with assaulting the mother of which, I might add, he was subsequently convicted.  And yet the parties appeared to be envisaging that the father would be the one who would be caring for the children and indeed, that’s ultimately what happened.  The father was also able, it would appear, to have the apprehended violence order changed to enable that to occur.

7. In that context, the incident at its highest, was that the mother was said to have slapped the child, X, on the back.  It was referred to police, but they did not charge the mother.  In my view, even if that were found to be proved it would not give rise to an unacceptable risk of harm.  And, as I say, that seems to be the father’s case at its very highest. 

8. In those circumstances, and, in particular, where there is no other person available, and the mother is assessed by the family consultant to be otherwise a competent and capable parent, I do propose making the orders as sought by the mother on an interim basis.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam J delivered on 30 January 2019.

Associate: 

Date:  27 March 2019