FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nowell & Nowell (No 2) [2021] FedCFamC2F 381
File number(s): ADC 4285 of 2021 Judgment of: JUDGE DICKSON Date of judgment: 4 November 2021 Catchwords: FAMILY LAW – parenting –where father has withheld child from the mother’s care post separation – where there are mutual allegations of family violence – where mother alleges that the father has perpetrated coercive and controlling family violence – where the father alleges mother has longstanding mental health history – where parties mutually allege illicit drug and alcohol issues – where child’s school has been recently changed - nature of an interim hearing - best interests of the child – where there is no unacceptable risk in the child being returned to the mother’s primary care – where it is in the best interests of the child to be returned to the mother’s primary care but have substantial and significant time with the father Legislation: Family Law Act 1975 (Cth) Part VII, s 60CC Cases cited: Dieter & Dieter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Hartland & Hartland [2020] FCCA 937
Slater & Light [2013] FamCAFC 4
Division: Division 2 Family Law Number of paragraphs: 90 Date of hearing: 3 November 2021 Place: Adelaide Counsel for the Applicant: Mrs Read Solicitor for the Applicant: CG Family Law Counsel for the Respondent: Mr Bowler Solicitor for the Respondent: Jordan & Fowler Family Lawyers Solicitor for the Independent Children’s Lawyer Mr Frazer appearing from Stevens Law ORDERS
ADC 4285 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NOWELL
Applicant
AND: MS NOWELL
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
4 NOVEMBER 2021
UPON NOTING THAT
A.The undertaking filed by the father this day that he will pay all school fees and outgoings with respect to the attendance of the child X at B School
THE COURT ORDERS THAT UNTIL FURTHER ORDER:
1.Each of the parties be released from the Undertakings provided to this Honourable Court on 23 September 2021 and 11 October 2021.
2.The child X born in 2012 (‘the child’) do live with the mother unless otherwise provided for herein.
3.The child spend time with the father as follows:
(a)Each alternate weekend from the conclusion of school (or 4:00pm if a non-school day) Friday to 5:00pm Sunday, commencing Friday 12 November 2021; and
(b)Each intervening Wednesday from the conclusion of school (or 4:00pm if non-school day) to the commencement of school Thursday (or 9:00am if a non-school day), commencing Wednesday 17 November 2021; and
(c)From 4:00pm on 24 December 2021 to 2:00pm on 25 December 2021 PROVIDED THAT the child is with the mother from 2:00pm on 25 December 2021 to 5:00pm on 26 December 2021; and
(d)During the Christmas 2021/2022 school holidays as follows:
(i)The alternate weekend time referred to in paragraph 3.1 herein be extended from 9:00am Friday to 5:00pm Monday on each alternate weekend; and
(ii)The intervening Wednesday time referred to in paragraph 3.2…
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CaseChat Overview and Summary
The legal issues before the court involved determining whether there was an unacceptable risk in returning the child to the mother's primary care, given the allegations of family violence and other issues. The court found that there was no unacceptable risk in returning the child to the mother's care but also determined that it was in the child's best interests to have substantial and significant time with the father. The court considered the child's need for stability and continuity, as well as the potential impact of the ongoing dispute on the child's emotional and psychological wellbeing.
In reaching its decision, the court carefully weighed the evidence presented by both parties and considered expert opinions on the child's best interests. The court ultimately concluded that the child should live primarily with the mother but have a substantial and significant time with the father, including regular weekend visits and additional time during school holidays. The court also imposed various protective orders and injunctions to ensure the safety and wellbeing of the child, such as prohibiting the parties from discussing the proceedings with the child and restricting their contact with each other. The court further ordered the parties to complete a parenting program and attend a family dispute resolution conference to work towards resolving their differences.
The final orders of the court included provisions for the child's primary care and visitation schedule, as well as various protective measures and injunctions to ensure the child's safety and wellbeing. The court also made orders regarding property matters, including the sale and transfer of assets, and directed the parties to attend a family dispute resolution conference to work towards resolving their differences. The court stayed the recovery order during the period of the adjournment and ordered the parties to file and serve various documents, including cost notices, minutes of order, and affidavits, within specified timeframes.
Orders
Orders of the court
ADC 4285 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR NOWELL
Applicant
AND:
MS NOWELL
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
4 NOVEMBER 2021
UPON NOTING THAT
A. The undertaking filed by the father this day that he will pay all school fees and outgoings with respect to the attendance of the child X at B School
THE COURT ORDERS THAT UNTIL FURTHER ORDER:
1. Each of the parties be released from the Undertakings provided to this Honourable Court on 23 September 2021 and 11 October 2021.
2. The child X born in 2012 (‘the child’) do live with the mother unless otherwise provided for herein.
3. The child spend time with the father as follows:
(a) Each alternate weekend from the conclusion of school (or 4:00pm if a non-school day) Friday to 5:00pm Sunday, commencing Friday 12 November 2021; and
(b) Each intervening Wednesday from the conclusion of school (or 4:00pm if non-school day) to the commencement of school Thursday (or 9:00am if a non-school day), commencing Wednesday 17 November 2021; and
(c) From 4:00pm on 24 December 2021 to 2:00pm on 25 December 2021 PROVIDED THAT the child is with the mother from 2:00pm on 25 December 2021 to 5:00pm on 26 December 2021; and
(d) During the Christmas 2021/2022 school holidays as follows:
(i) The alternate weekend time referred to in paragraph 3.1 herein be extended from 9:00am Friday to 5:00pm Monday on each alternate weekend; and
(ii) The intervening Wednesday time referred to in paragraph 3.2 herein be extended from 9:00am Wednesday to 5:00pm Thursday.
(e) At such other times as agreed between the parties in writing.
4. Without admission as to the need for same, the father be restrained and injunctions be granting restraining him during the period from the making of the orders herein until the conclusion of school on Friday 12 November 2021 from:
(a) Approaching, entering upon, loitering or contacting the child at the B School; and
(b) Communicating with the child either directly or indirectly, unless otherwise agreed between the parties in writing.
5. Any handover not taking place at the said child’s school do occur at the D Cafe, Suburb E.
6. Without admission, the parties be restrained and injunctions be granted restraining each of them from:
(a) Discussing these proceedings with or in the presence of the child; and
(b) Showing the child any documents arising from these proceedings, or allowing anybody else to do so; and
(c) Denigrating or criticising the other in the presence of the child, or allowing anybody else to do so; and
(d) Consuming any illicit substances or alcohol to excess 12 hours prior to or during any period the child is in their care; and
(e) Attending at or loitering near each other’s home, without the prior written consent of the other having first been obtained; and
(f) Physically disciplining the child or allowing anyone else to do so.
7. The mother comply with any directives from her treating medical practitioners including Dr F her psychologist, in relation to any medication or appointments.
8. The mother file and serve a copy of liver function test undertaken on 18 October 2021 as soon as it becomes available.
9. Each of the parties be at liberty to attend school events to which normally are ordinarily invited to attend.
10. Each of the parties are at liberty to obtain copies of the child’s school reports, photographs and newsletters at their own expense.
11. Each of the parties do advise the other forthwith in the event of the child suffering any medical emergency or being hospitalised.
12. The parties do enrol in and complete the Kids Are First parenting program and do file proof of same as soon as it comes to hand.
13. Pursuant to Section 67Q of the Family Law Act 1975 (as amended), a Recovery Order do urgently issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a) to find and recover the child X born in 2012; and
(b) 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 child may be found; and
(c) to deliver the child to the mother MS NOWELL born in 1969 at such a place as the mother and the person effecting such recovery agree to be appropriate.
14. The Recovery Order pursuant to paragraph 13 herein be stayed during the period of the adjournment.
15. The father’s Affidavits filed on 2 September 2021, 1 October 2021, 29 October 2021 and 2 November 2021 be uplifted and refiled in a properly executed form and witnessed by a Commissioner for taking Oaths in the Supreme Court of South Australia.
16. The parties and legal representative (and the Independent Children’s Lawyer) attend a Family Dispute Conference at the Legal Services Commission of South Australia on 2 February 2022 at 9:30am
UPON NOTING that in the event that the parties are seeking an extension of legal aid funding to attend the Conference, they forward a request for an extension of funding to the relevant assignments officer at the Legal Services Commission of South Australia within forty eight (48) hours of the date of this order.
17. The parties, or their solicitors, each forward to the Legal Services Commission of South Australia, Family Dispute Resolution Unit, within seven (7) days of this Order the following:
(a) a copy of the said Order; and
(b) the current contact details of the parties (including current postal and telephone details).
18. All interim parenting applications be dismissed.
19. Each of the parties do file and serve a Rule 12.06 cost notice and forward a copy to the Chambers of Judge Dickson no later than 4:00pm on 17 November 2021.
20. The mother have leave to file an Affidavit in reply limited to 5 pages no later than 1:00pm on 18 November 2021.
21. Each of the parties do file and serve Minutes of Order setting out the orders to be sought by each of them at the adjourned date for argument no later than on 2:00pm on 18 November 2021.
22. The interim applications with respect to property be listed on 19 November 2021 at 12:15pm for interim argument on a face to face basis in line with Court protocols NOTING that such argument is confined to period of 45 minutes for Counsel’s submissions AND FURTHER NOTING that the Independent Children’s Lawyer is excused from attendance.
23. The parenting applications be listed on 25 February 2021 at 9:30am for directions.
24. Liberty to apply for the recovery order to be executed upon application to the Chambers of Judge Dickson on 48 hours’ notice.
AND BY CONSENT IT IS FURTHER ORDERED THAT:
25. The father do forthwith and by no later than 5:00pm on 4 November 2021 provide to the mother’s solicitors the keys, remotes and lift fob for the mother’s apartment in Suburb G and the former matrimonial home.
26. The father do file and serve his responding documents (as they relate to property matters only) including an Affidavit, Financial Statement, Financial Questionnaire, Undertaking as to Disclosure by no later than 4:00pm on 15 November 2021.
27. The father be restrained and an injunction granted restraining him from selling, transferring, withdrawing from, encumbering, or otherwise dealing in any way with the assets of the relationship (save and except for the father is permitted to operate his business interests to enable their daily function) including but not limited to:
(a) The property at H Street, Suburb J, SA;
(b) The Motor Vehicle 1, Motor Vehicle 2 and Motor Vehicle 3 motor vehicles.
(c) His superannuation.
28. The parties be restrained and an injunction be granted restraining the parties from pledging the credit of the other.
29. If the parties are not able to agree upon the value of any items within the asset pool, that a valuation be obtained not less than 14 days prior to the Conciliation Conference, with such valuer to be agreed upon and jointly instructed by the parties.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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