Wiggs and Piercy - [2018] FCCA 3992

FEDERAL CIRCUIT COURT OF AUSTRALIA

WIGGS & PIERCY

[2018] FCCA 3992

Catchwords:
FAMILY LAW – Parenting – interim application by the father for a change of residence for a child aged 6 – where the mother has failed to comply with orders for the child to spend time with the father and failed to attend the interim hearing – where the father has a lengthy criminal record and has served terms of imprisonment for supplying methamphetamine but where there are no immediate concerns for the child’s safety in his care - where for a number of reasons there are immediate concerns for the child’s safety in the mother’s care - interim order made for the child to live with the father.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant:

MS WIGGS

Respondent:

MR PIERCY

File Number:

NCC 2334 of 2018

Judgment of:

Judge Terry

Hearing date:

21 December 2018

Date of Last Submission:

21 December 2018

Delivered at:

Newcastle

Delivered on:

21 December 2018

REPRESENTATION

The Applicant:

No appearance

Counsel for the Respondent:

Mr Katsinas

Solicitors for the Respondent:

Effective Legal Solutions

Solicitors for the Independent Children’s Lawyer

Harpers Legal

ORDERS

The orders made on 7 August 2018 are discharged.
The child [X] born … 2012 (“the child”) shall live with the father.
Pursuant to s.67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child [X] born … 2012 and to return/deliver the said child to the respondent and for that purpose 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 said children may be found.
The mother, her servants and agents be and hereby are, restrained by injunction from again removing or causing the removal of the child from the care of the father, and upon any breach of this injunction the person to whom this recovery order is addressed are authorised and directed to arrest the mother without warrant.
Pursuant to section 68B of the Family Law Act 1975 the mother be, and is hereby restrained from removing the child from the care of the father or from attending at or within 500 metres of the child’s school:
(a)Half an hour prior to and half an hour after the commencement of school; and
(b)Half an hour prior to and half an hour after the conclusion of school.
That pursuant to section 68B of the Family Law Act 1975 the father be and hereby is, restrained from:
(a)Driving a motor vehicle with the child as a passenger;
(b)Causing or allowing the child to come into contact with the paternal uncles;
(c)Removing or changing the child’s enrolment from her current school, The Town A Public School.
The matter is adjourned to 10.00am on 14 January 2019 for further consideration at which time the court will consider whether orders can be made for the child to spend time with the mother.
The father is restrained and an injunction is granted restraining the father from recording any telephone conversations with the mother or recording or videoing the mother on any other occasion or permitting any person to do so and the father should be aware that if it becomes apparent to the court that he has obtained evidence in that way the evidence may not be admitted during the hearing of the matter.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2334 of 2018

MS WIGGS

Applicant

And

MR PIERCY

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
In this matter I have to make a decision about parenting orders for [X], who was born on … 2012 and who is six years old.
The matter first came before me on 7 August 2018 when the mother filed an application for a recovery order after the father took the child from school.
The evidence available to me at that stage was as usual a whole lot of allegations and counter-allegations. However the child had lived with the mother for her entire life and had spent fairly limited time with the father up to him taking her from school and I made an order that the father return the child to the mother and that the child live with the mother.
A child dispute memorandum had been prepared earlier that day and the allegations and counter-allegations of the parents were spelled out in that memorandum. In the Future Directions part of the memorandum the family consultant pointed out that the child had lived with the mother for many years but noted that there was an issue raised about the child having been exposed to family violence perpetrated by the mother’s partner.
I took into account the recommendations in the child dispute conference memorandum, insofar as they can be called recommendations; perhaps I should call it information, and the decision I made was that the child should live with the mother and be returned forthwith to her.
However I also made orders for the child to spend time with the father each alternate Sunday commencing on 19 August, and this order was made partly because the mother did not raise any concerns the child would be at risk of harm in the father’s care at the present time.
Unfortunately after I made that order there was little compliance with it.
The matter subsequently took a nasty turn which involved the father’s legal team making allegations about things they alleged had been said by the mother’s solicitor about the mother which led in turn to a complaint to the Legal Services Commission and to the mother’s solicitor withdrawing from the proceedings.
I subsequently ordered that the parties attend a child-inclusive child dispute conference so that I could find out a little bit more about what was happening for [X] and about her perspective on the matter. The parties attended that conference on 28 November 2018 and the family consultant was extremely concerned about what emerged at that conference.
It was apparent that the child had not been spending time with the father, in other words that the orders I made were not being complied with, and the family consultant was very concerned about the mother’s presentation. She said that the mother having pressured speech and was fixated, inconsistent and paranoid and had failed to protect [X] from her views.
The family consultant referred at some length to an allegation that the mother had made about the child’s school of drugging the child and she discussed it with the mother.
The mother told the family consultant that she was not currently undergoing any mental health treatment. She said that she last saw her psychologist three months ago and did not see the necessity to continue.
The family consultant was so concerned about the matter that she recommended that consideration be given to a change of residence for the child.
The matter subsequently came before me on a duty day. I had no capacity to deal with it on that day and I put it over to today for interim hearing.
The matter causes me considerable disquiet. I often have cases where it is clear enough that a particular course is indicated for a child and it is clear enough that risk lies in one place and not in the other, or not to such an extent, but this particular case causes me considerable disquiet because although it is not quite an out of the frying pan into the fire case, there is reason to be seriously concerned about both parents.
In relation to the mother I have her recent behaviour including an incident where she allegedly assaulted the father’s partner Ms C. An ADVO was made against the mother arising out of that incident and that incident happened when the child and Ms C’s children were present.
The Independent Children’s Lawyer has tendered documents which indicate that the child’s school has expressed concern about unexplained injuries to the child and about the child saying that she was afraid to go home and tell the mother about a missing drink bottle because she was worried about how angry the mother would be.
The Independent Children’s Lawyer also tendered documents containing information about the mother’s relationship with Mr B which has involved some serious family violence to which the child was apparently exposed.
Concerns about Mr B and violence in the mother’s household were raised in August 2018 when the matter was first before me. In an attempt to address those concerns the mother applied an ADVO against Mr B, I think after these proceedings commenced, but whether she has a propensity to enter into that kind of relationship or whether she has really ended a relationship with Mr B cannot be absolutely certain about, and I say that because the mother has not been particularly good about taking part in these court proceedings. She is not here today. It was made very clear to her on the last occasion that she needed to be here today and she has not attended court. I am extremely concerned about the mother.
There is also reference in the subpoena material to an injury to the child in connection with a suggestion that she could have been sexually abused by the maternal grandmother.
Where the truth lies about all that I do not know but I have concerns expressed by the school about bruising; the sexual assault issue in which the maternal grandmother was named as having been involved; the violent relationship between the mother and Mr B; and the mother’s assault of Ms C which it seems likely occurred in some form.
I have the fact that the mother’s presentation at the child report interviews led the family consultant to form the view that she may be suffering from some mental health issues. I also have her noncompliance with the order for the child to spend time with the father so I do not have a situation where the child is going out of the mother’s household and spending some time with the father in a different place. The child is exclusively with the mother and is being withheld from the father and the mother has not attended court today.
All those things are so concerning that notwithstanding that the mother must be the child’s primary attachment figure given the history of the matter, I really have no option but to seriously consider removing the child from the mother’s care. In fact I almost consider myself compelled to do so because the risk of harm issues that I cannot make any specific findings about are so serious when combined that I cannot ignore them.
To be frank I wish that I had a better option than the father as a place to put the child. I cannot feel happy about placing the child in the care of someone who has been involved in the criminal justice system since 1995 and who has two convictions for supplying methamphetamine, the damaging drug which destroys lives and which I have to deal with so often in this Court and which causes children to lose parents out of their lives.
I cannot feel happy that the option open to me is to place the child in the care of a man with those convictions. However the father is the only other option I have available to me at the moment and in terms of the child’s immediate safety in terms of not being sexually abused, having a safe bed to sleep in, not being physically abused, going to school, being fed and clothed; in terms of that safety, there is nothing in the material to suggest, and indeed the mother has never suggested it, that father cannot keep the child safe and be trusted to look after the child.
When I have those two options and when I have to focus on the child’s immediate safety and I cannot consider she is safe with the mother and the only other place I have to put her is with the father and I have to accept that she will be immediately safe with the father, then despite my concerns about the father in terms of whether he is a valuable member of the community, I have no option but to place the child with the father.
I am going to make an order that the child live with the father. I have no option but to do so and we will have to see what is going to happen with the matter in the longer term.
I have heard this matter because it was listed for interim hearing today. The mother knows it is on because she contacted my associate and sought liberty to appear by telephone. She was refused that liberty. She is not here and it is appropriate that I hear and determine the matter.
It is pointless to order that the mother deliver the child to the father at 4.00 pm today or at any other time today because before I could expect the mother to comply with it she would have to be served with the order. I am simply going to make the recovery order. I have no other choice. The mother should have been here today and she is not.
I am going to have to adjourn the matter. There is no point me making a general order that the mother spend time with the child supervised just in case the mother thinks better of the matter once the child is recovered and sooner rather than later I will need to consider making orders about the child spending time with the mother.
It is a heartbreaking thing to do to a child four days out from Christmas, but for safety reasons I have no option but to do it.

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 12 April 2019