NOEL & FAUCHER

[2011] FamCA 543

FAMILY COURT OF AUSTRALIA

NOEL & FAUCHER [2011] FamCA 543

FAMILY LAW - CHILDREN – interim orders – with whom a child spends time – application by the mother seeking orders that father’s time with the child be suspended – where final orders were made by consent – where the father has been charged with the assault of the mother – best interests – orders that the father’s time with the child be suspended and various restraining orders against the father be imposed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Noel

RESPONDENT: Mr Faucher

FILE NUMBER: ADC 3508 of 2010

DATE DELIVERED: 30 June 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 30 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms G. Parker

SOLICITOR FOR THE APPLICANT: Norman Waterhouse

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. Within seven [7] days the mother file an affidavit to which is annexed the full statements referred to in the annexures and to serve the same by sending them by post within seven [7] days to the father at his address for service at … B Street, Town 1, in the State of South Australia, … .

1. The father to file and serve his answering documents PROVIDED THAT they are filed and served within twenty-one [21] days from today.

1. Further consideration of the listing of the final orders and the interim and procedural orders are adjourned to 10 August 2011 at 9.30 am before the Duty Judge.

1. During the period of the adjournment paragraphs 4 and 5 of the Order of 21 March 2011 is suspended (for the father to spend time with the child H FAUCHER (“H”) born … April 2005).

1. The father is restrained and an injunction is granted restraining the father from attending at the school at which H attends or within 100 metres of the school and from removing or attempting to remove the child H from the care of the mother.

BY CONSENT IT IS FURTHER ORDERED THAT:

1. Subject to any objection by the recipients of the subpoena to SA Police and CYFS (Women’s and Children’s Hospital) I give leave to both parties and their legal representative to inspect and if necessary to copy documents produced under subpoena.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3508 of 2010

Ms Noel

Applicant

And

Mr Faucher

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which comes before me on the initiating application of the mother filed on 16 June 2011 in which the mother seeks final and interim orders in relation to the child, H, the child of the parties. 

2. H was born in April 2005 and is, therefore, aged six. 

3. There were considerable proceedings before this Court previously.  Final consent orders were made on 21 March 2011, when the parties were represented, and an Independent Children’s Lawyer appeared on behalf of H.  Those final consent orders made on 21 March 2011 are now the subject of the application by the mother who seeks that the orders, so far as they relate to the father spending time with H, be suspended.

4. The affidavit of service before the Court indicates that the father was served with the proceedings, being the affidavit and the initiating application, on 22 June 2011 at the address in Town 1.  The father appears this morning unrepresented and from the bar table does not deny the behaviour alleged by the mother but puts to the Court some background to explain his behaviour.  He used the expression, “I got to the point I had done what I had done.”  He now appears to say to the Court that he was sorry for his behaviour, but blames the mother for what he says was her change of the dates for the time he spends with the child, H, after the school holidays.

5. The affidavit of the mother, which is the sworn material before me, sets out the circumstances of an assault which she alleges took place on 5 June 2011, when the handover was taking place.  The assault as alleged by the mother took place in the presence of H.  The father has been charged with assaulting the mother.  Annexed to the mother’s affidavit is material concerning his bail conditions in relation to that assault charge.  The affidavit of the mother filed in Court is lacking in that it does not provide the full statement in the annexures in relation to that assault and that will need to be remedied.

6. I propose to order that within seven days the mother file an affidavit to which is annexed the full statements referred to in the annexures and to serve the same by sending them by post within seven days to the father at the address for the father.

7. The Court has also received the affidavit of the solicitor for the mother, to which is annexed a report from the school where H attends, the Town 2 Primary School, being a report from the counsellor setting out the concerns the counsellor has in the counselling being provided by the school counsellor for H.  That raises serious concerns about H’s involvement in the ongoing proceedings and the ability of the parents to protect H from the psychological and emotional distress which their inability to behave appropriately as parents is obviously causing H.  The information provided by the school raises serious concern about the need to protect H from the emotional and psychological harm of witnessing family violence.

8. The provisions of the Family Law Act 1975 (Cth) also emphasise the need to protect children from the significant detrimental effects of being victims of family violence. H has been a victim of family violence in that she has been forced to observe the ongoing difficulties between her parents. I consider the allegations made about the events of early June to be significant when considering on an interim basis what is in H’s best interests.

9. The father proposes to file affidavit material and seeks to oppose the orders sought by the mother.  I will give the father an opportunity to file and serve his answering documents provided they are filed and served within 21 days from today.

10. I list further consideration of the interim orders to 10 August at 9.30 am.

11. In the meantime, and during the period of the adjournment, I consider, for the reasons that I have given, that it is in the best interests of the child, H, that the orders which provided for the father to spend time with H be suspended.  That would give H an opportunity to settle and recover from the angst and psychological trauma no doubt incurred by her and as set out in the school report.  It would give an opportunity for the parties to carefully reconsider their position as to their future behaviour.  I, therefore, suspend paragraph 4 of the order of 21 March 2011.  That has the effect of suspending paragraph 5, which related to handovers.

12. The orders are already in existence which restrain both parties from assaulting, molesting, harassing, abusing or intimidating the other and from having any personal contact with the other save and except for necessary contact regarding H, including at handovers.  Those orders are also continued. 

13. I propose also to order that the father be restrained, and do order that the father be restrained, and an injunction be granted restraining him from attending at the school that H attends or within 100 metres of the vicinity of the school and from removing or attempting to remove H from the care of the mother.

14. The other orders which are sought in relation to the father assaulting, molesting, harassing or abusing or contacting the mother or members of her family are either already covered by the orders made on 21 March 2011 or are unnecessary because such behaviour is, in fact, against the criminal law of this State. 

15. I therefore adjourn further consideration of the listing of the final orders and the interim and procedural orders to 10 August at 9.30 am.  The sealed orders will be prepared and a copy sent to the father at the address which I have already read out in Town 1.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 30 June 2011.

Associate: 

Date:  13 July 2011