Priceman and Carl

[2017] FamCA 316

FAMILY COURT OF AUSTRALIA

PRICEMAN & CARL [2017] FamCA 316

FAMILY LAW – CHILDREN – PARENTING

APPLICANT: Mr Priceman

RESPONDENT: Ms Carl

FILE NUMBER: CAC 1583 of 2010

DATE DELIVERED: 28 February 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 28 February 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Capon & Hubert Lawyers

SOLICITOR FOR THE RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Claire Naidu & Co

Orders

IT IS ORDERED

1. That previous Order 2 made on 17 February 2017 be discharged.

2. That to the extent that it is necessary to do so the recovery order made on 17 February 2017 be discharged.

3. That the father has sole parental responsibility for B, born … 2007 (“the child”).

4. That the child B will spend time with the mother from 12pm on Saturday 4 March 2017 until 3pm Sunday 5 March 2017 with the father to deliver and collect the child from the front of the mother’s home.

5. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED

1. That there will be no contact between the father and the mother at this handover point.

2. That the mother will not leave the house at the time of the handover.

IT IS FURTHER ORDERED

1. That the parties will attend upon the Family Consultant on 6 March 2017 as directed by the Family Consultant.

IT IS DIRECTED

1. That in addition to the preparation of the Family Report that the Family Consultant prepares a short memorandum for the Court for 8 March 2017 in particular directed to any views that may be expressed by the child about her living arrangements.

IT IS FURTHER ORDERED

1. That the matter is otherwise listed at 9am on 8 March 2017.

2. That the parties may attend by video link from Canberra into the Sydney Registry.

IT IS FURTHER DIRECTED

1. That in relation to these interim proceedings the father file and serve any further affidavit material he seeks to rely upon by close of business 3 March 2017 and the mother file and serve any further affidavit material she seeks to rely upon by close of business on 7 March 2017.

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 Priceman & Carl 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 SYDNEY

FILE NUMBER:

Mr Priceman

Applicant

And

Ms Carl

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. In the matter of Priceman and Carl, the recent history involved orders made by me in August of last year.  Those orders provided that the child would spend time with her mother as agreed between the parents, but would live with her father.

2. At the end of January there was an agreement for the child to spend some days with the mother, on the 3^rd and 4^th of February. 

3. This was extended by agreement to the 5^th February.

4. On the 5^th of February the child remained with her mother until the 6^th of February despite there being no agreement between the parties.

5. The father collected the child from school on that day.

6. On the 7^th of February the child was delivered to the school for a camp to occur at D Camp.  On the 10^th of February she returned from D Camp and, although the father was at the school to collect her, the mother collected the child from the school and withheld her.

7. It is alleged that the mother indicated that the child would not be returning to school until the matter returned to Court.

8. The matter was not due to return to Court for some time, the earliest time being the 6^th of March when the child was due to attend upon the Family Consultant for the preparation of a Family Report.  It is alleged during the time that the child was withheld from her father that she alleged having some flashbacks about the father touching her private parts.  It was further alleged that she was withheld because of an expressed desire to live with her mother rather than with her father.

9. Further assertions were made that the father had choked the child, slapped her on her “bare arse”, stalked people in the past and asked the child to kill the mother. 

10. The previous orders were made following a contested hearing on the 25^th of August last year.  The particular reasons I relied upon on that occasion involved a concession by the mother that it was appropriate the child live with the father for a short time while the matter was resolved on an interim basis, and that she had then expressed some concerns that the child may stab her in her sleep.  The mother tells me that this is not a concern that she currently harbours.

11. The matter returned before me on the 11^th of November and there was no change to the living arrangements at that point. 

12. On the 17^th of February this year, the father’s application for a Recovery Order was returnable before me.  On that occasion the mother indicated that she would not comply with the orders and would rather go to jail than comply with the orders. 

13. A Recovery Order issued and I understand that the child was returned to the father following the execution of the Recovery Order by the Australian Federal Police. 

14. The mother tells me from the bar table, that this was an upsetting circumstance and caused both herself and the child to cry.  It was highly undesirable that the police should become involved to return the child to the father.  On the previous occasion I inquired of the mother whether it was really necessary to have the police involved or whether she would return the child to the father.  As I have indicated, she indicated that she would rather go to jail, thus necessitating the involvement of the police.  It is highly undesirable that it came to that.  And it is highly unlikely that having the police involved as opposed to the mother simply handing the child back to the father was in the child’s best interest.

15. In this matter I rely heavily on the previous concession made by the mother that the child should live with the father for at least the short term.

16. I further rely heavily on the previous concession that she made as to the extreme problems while the child was living with her, in particular the fear that the child might stab the mother in the mother’s sleep.

17. The child appears to have had a reasonably settled arrangement living with the father since the end of August last year.

18. I derive limited support for the idea that this has been beneficial for the child from the school reports that the mother has helpfully provided in the affidavit material she filed in the last few weeks.  These show that the child was going reasonably okay at school at the end of semester one in 2016, but was the subject of more favourable school reports at the end of semester two 2016.

19. While I accept that it is difficult to draw strong conclusions from the school reports, they indicated a trend for the better for the child, particularly during a period of time when the child was principally in the father’s care.

20. I further rely heavily on the previous disregard for court orders demonstrated by the mother, both in the withholding of the child and then in the insistence that the matter be resolved by means of a Recovery Order.  In particular, there was the asserted withholding from school until the matter could return to Court. 

21. I note the affidavit material provided by Ms E, in relation to the flashbacks said to be reported by the child of being touched on her privates.

22. The circumstances of these interim proceedings are such that it is not appropriate that there be equal shared parental responsibility between the parties.  The litigation pathway has shown a high degree of volatility between the parties.

23. Of the principal concerns raised, I have limited ability to resolve the issues at this stage.  However, I consider that the best interests of the child are heavily reliant here on both the protection of her and in providing a stable parenting regime for her, pending further consideration of the matter.

24. This is a matter in which I anticipate that there will be further information before me to make a further consideration of the matter by the 8^th March 2017.  It has been indicated that the Family Consultant will be able to prepare a short report for that day and I will direct her to do so.  It has further been indicated that the Director-General should be in a position that day to have firstly provided the material that I have previously requested and also to give some indication of whether or not the Director-General will join in the proceedings. 

25. At present the most salient risk factors that I can identify are, firstly, regarding the father, the odd evidence given by Ms E of the claim of flashbacks.  As best as I can ascertain this appears to be a claim that something has happened in the distant past, hence, the use of the term flashbacks.  I cannot be certain about this, but on the assumption that it is a matter that relates to the distant past, since that time there has been a concession by the mother that it was appropriate for the child to live, at least in the short term, with her father.  There is also the odd claim by the mother asserting that the child has reported that the father has asked the child to kill the father.  This seems to be inherently unlikely, although it might be the subject of further evidence at the final hearing. 

26. As against that, I have the mother’s concession that the child should live with the father in the short term and I have the mother’s expressed concern previously made about the child stabbing her in her sleep. 

27. I can make little of the cogency of the risks identified regarding the father.  I have greater confidence in the risks posed if the child was to live with the mother.

28. The mother asks that the child spend some time with the mother.  I draw some comfort that this can work in the short term from two factors.

29. The first factor is that the father concedes that this should still happen despite what has occurred in respect of the Recovery Order. 

30. The second is that the mother has indicated to me, following the execution of the Recovery Order, that she will be compliant with the orders.  This is a starkly different position to the one that she advocated before me at the time of the making of the Recovery Orders and I have confidence that the mother will comply with the orders.

31. Of course, if the child is withheld again, then, without binding myself as to the future, it seems that there will be little option other than to order a further Recovery Order.  And it seems under those circumstances, it will be difficult to make further orders for the child to spend time with her mother.

32. Accordingly, at this point, and noting that the matter will be returnable back before me in the short term, I will make orders for the child to spend some time with her mother.

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 28 February 2017.

Associate:

Date:  7 March 2017