Priceman and Carl

[2016] FamCA 734

FAMILY COURT OF AUSTRALIA

PRICEMAN & CARL [2016] FamCA 734

FAMILY LAW – ORDERS - Variation - Child to live with the father

APPLICANT: Mr Priceman

RESPONDENT: Ms Carl

INDEPENDENT CHILDREN’S LAWYER: Yeend & Associates

FILE NUMBER: CAC 1583 of 2010

DATE DELIVERED: 25 August 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 25 August 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Capon & Hubert Lawyers

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs G Yeend

Orders

IT IS ORDERED THAT

1. The matter is adjourned to 2pm on 11 November 2016. 

2. I grant the parties liberty to photocopy subpoena material on the proviso that such photocopies will remain in the control of legal representatives of the parties. 

IT IS NOTED THAT

1. At present the mother has an application for Legal Aid in process and hopes to engage a lawyer soon.  This order will enable any lawyer appointed for the mother to retain photocopies but does not allow the mother to photocopy the material herself. Should the mother not be legally represented then further orders will need to be considered in relation to subpoenaed material in due course.

IT IS FURTHER ORDERED THAT

1. Any further applications in respect of B (the child) that the parties seek to have heard on 11 November 2016 and any further material to be relied upon in support of those applications be filed and served no later than close of business on Friday 4 November 2016.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The child B, born … 2007, live with the father and spend time with the mother as agreed between the parties.

2. I grant the parties liberty to relist this matter on 7 days’ notice in writing.

3. I grant leave, if it is required, for the Independent Children’s Lawyer to issue subpoenas directed to Ms C. 

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 CANBERRA

FILE NUMBER: CAC 1583 of 2010

Mr Priceman

Applicant

And

Ms Carl

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. By Application in a Case filed 5 August 2016 the father seeks orders for this matter to be relisted urgently and it has come before me for interim hearing on 25 August 2016, that is almost three weeks after the filing date.

2. In his Application the father seeks orders that the child lives with him and spends time with the mother as might be agreed between him and the mother, or as might be further ordered by the Court.  He further seeks orders that discharge or amend Orders made by Judge Brewster in relation to time that his mother might be able to spend with the child. 

3. Firstly, in relation to the Application that there be an order that the child live with him, the mother has indicated that she accepts that, pending an adjourned date of this matter, that it is appropriate that the child lives with the father.  She does not accept that there ought to be orders in place that govern this and asks that the Court not make an order so that the child might be able to simply choose to come back to her without any further order being made by the Court. 

4. At annexure D of the father’s affidavit there is annexed a message sent by the mother to the father indicating that as at 10 July 2016 the child was out of control and wanted to live with her father and that the mother had expressed to her that she could.  The mother accepts that this was a message that she sent to the father.  She further accepts that, on the last occasion that she was before me,  she advised the Court that she was concerned that the child might stab her while she is asleep and for that reason another daughter of hers was staying awake during the night to make sure that it could not happen. 

5. It further appears to be the case that the child is living with the father and has been doing so since the weekend of 19 July 2016. 

6. On the basis that it appears that the child is now in a settled position living with the father, that the mother accepts that, at present, this is an appropriate arrangement, and given the troubling matters that the mother has identified in relation to the child, it is in the child’s interests that I make an order that provides for her to live with her father pending further order.

7. The issue in relation to the father’s mother spending time with the child is a difficult issue.  The father has annexed to his affidavit material that has been provided by the Child and Youth Protection Services and the Independent Children’s Lawyer has tendered further material relating to investigations made by the Australian Federal Police.  This material indicates some ambiguity in respect of claims that are made against the paternal grandmother in respect of the child. 

8. The mother has tendered, and it is marked as exhibit M1, correspondence from Ms C, a child and family psychologist, who has seen the child in April and May of 2016.  Ms C there reports in general terms an allegation in respect of the paternal grandmother touching the child’s privates and kissing her vagina.  It is unclear on the terms of the correspondence when it is that this is alleged to have occurred, although the description of it appears to have occurred this year.  Given the interim nature of the proceedings, I am unable to make determinations either way in respect of whether or not the paternal grandmother poses any risk whatsoever to the child. Given the importance of the protection of a child from family violence and abuse and that at an interim determination, I am unable to determine that there is no significant risk of harm to the child, but that on the material the question of harm legitimately arises, I do not propose to discharge the order made by Judge Brewster.

9. The matter is otherwise adjourned to 2pm on 11 November 2016. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 25 August 2016.

Associate: 

Date:   1 September 2016