SHERGOLD & CLARK

[2011] FamCA 767

FAMILY COURT OF AUSTRALIA

SHERGOLD & CLARK [2011] FamCA 767

FAMILY LAW – CHILDREN – Interim Orders – Parental responsibility – with whom children shall spend time and live – relocation by mother - parties previously settled parenting proceedings – mother files fresh application in light of breach of Apprehended Domestic Violence Order by father – family violence order issued against father in protection of mother and children – father convicted of breach of family violence order and other offences – father’s actions a complete disregard for authority and failure to take responsibility – mother has protected the relationship of the children with their father - orders made for mother to relocate – orders for mother to have sole parental responsibility for the children – orders for the children to spend no time with father

APPLICANT: Ms Shergold

RESPONDENT: Mr Clark

FILE NUMBER: (P)NCC 2675 of 2008

DATE DELIVERED: 15 September 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 12 September 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Rice More & Gibson
(Mr F Falcomata)

RESPONDENT: In person via telephone link

Orders pending further order:

1. That the orders dated 29 March 2011 are suspended.

2. That leave be granted to dispense with the filing of a s 60I Certificate.

That the mother have sole parental responsibility for the children J born … July 2002 and M born … October 2003 (“the children”).

1. That the children shall live with the mother.

2. That there be no order as to time between the children and the father.

3. Pursuant to Section 68L of the Family Law Act 1975 that an Independent Children’s Lawyer be appointed to represent the interests of the children NOTING the previous representation was by Mr Alan Scally of Legal Aid New South Wales, Newcastle.

4. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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 these particulars are included in these orders.

THE COURT NOTES:

(A)That the mother presently intends to move with the children from the New England Area and establish a residence for them elsewhere.

(B)The father states that there has been two psychological assessments of him in prison and drug testing once.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shergold v Clark has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC2675 of 2008

Ms Shergold

Applicant

And

Mr Clark

Respondent

REASONS FOR JUDGMENT

1. On 29 March 2011 the parties negotiated a final settlement of their dispute over arrangements for their two children.  The children are aged nine and seven years.

2. Five months later the mother filed a fresh application.  The orders she seeks are dramatically different, namely that she seeks:

   ·Discharge of the March 2011 orders;

   ·Sole parental responsibility for the children;

   ·Residence;

   ·Relocation to an undisclosed location; and

   ·For no time to be spent by the children with their father.

The alleged incident on 8 July 2011

1. The mother attended with friends an event in [New Englan Area].  After 30 minutes the mother recognised the voice of her husband which was raised and aggressive.  She moved away from the area.

2. The father walked within a metre of the mother and said to her loudly and aggressively:  “One hundred fucking metres you cunt”.  The mother was shocked and began to shake and cry.  She formed the opinion that the father may have been under the influence of drugs.

3. She reported the matter to the police.  The father was arrested and his conduct with police lead to charges, which I shall refer to later.  Bail was withheld and the father has been in prison since.

4. The mother says she was strongly affected by the incident.  She was shocked, had trouble sleeping and holding conversations.  Initially a friend looked after her and the children.

5. The children had been seeing the father after the consent orders were made on 29 March 2011.  The mother reports that the children were in a good frame of mind after those visits.

6. The mother gives an account of explaining to the children that their father was in prison.  It was sensitively done before the children heard it from others.  She was protective of their relationship with the father.

Criminal charges

1. On 12 July 2011 an existing Apprehended Domestic Violence Order (ADVO) for the protection of the mother was extended for a further period of two years.  The order was extended to include the children.  The order was first made on 10 June 2008 at the Local Court and has been extended more than once.

2. The father was convicted of the breach of the ADVO and for the following offences:

   ·Offensive language;

   ·Malicious Damage – for smearing his own faeces in the police cells;

   ·Act of Indecency – for exposing his penis to a female constable of police.

3. He was sentenced to three months in prison and fined $150.  The father lodged a severity appeal which was dismissed in August 2011 by the District Court.

The application of the mother

1. The application came before this Court on 12 September 2011.  The father attended by telephone from a prison in Sydney.  He had received the documents filed by the mother but had not been able to prepare a response.

2. I am satisfied that there has been a change of circumstances sufficient to justify a fresh application for parenting arrangements. 

3. If the evidence of the mother is accepted, the father behaved in a menacing and insulting manner towards the mother on 8 July 2011.  The incident was a serious one.  The conduct of the father after arrest, for which he was charged, reflected a complete disregard for authority and a failure to take responsibility for the fact that he had been arrested.  The charges tend to confirm the mother’s allegations of aggressive uncontained behaviour.

4. The father blamed the mother for his arrest, referred to the mother by her surname alone and took the opportunity to denigrate her when describing the incident.

5. The March orders had provided for the relocation by the mother to Sydney not before 1 January 2012. 

6. In the circumstances where the mother is fearful of the father based on his recent conduct, I find it is appropriate for the mother to be free to relocate now if she wishes. 

7. The mother has protected the relationship of the children with their father, the paternal grandparents, their baby brother V and his mother, the father’s current partner.

8. I am satisfied she will act in the best interests of the children during this interim period when there are no defined orders for time to be spent.

9. The matter is next listed before the Court at 9.30 am on 4 October 2011.  At that time consideration will be given to the future progress of the matter.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 15 September 2011.

Associate: 

Date:  15 September 2011