B and B
[2001] FMCAfam 240
•31 October 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
B & B [2001] FMCAfam 240
CHILDREN – separate representation.
| Applicant: | A B |
| Respondent: | A M B |
| File No: | ZP 806 of 2000 |
| Delivered on: | 31 October 2001 |
| Delivered at: | Parramatta |
| Hearing Date: | 31 October 2001 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant: | The applicant father appeared in person. |
| The Respondent: | The respondent mother appeared in person. |
ORDERS
That the children J J B born 28 November 1996 and R W B born
10 December 1999 shall be legally represented in these proceedings and by request that the Legal Aid Commission of New South Wales arrange such representation.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA
ZP 806 of 2000
A B
Applicant
And
A M B
Respondent
REASONS FOR JUDGMENT
The matter that is before the court today involves an application by the father to vary residence and contact orders which were made by this court on 5 October 2000. Since then the parties have reconciled but have then separated since those orders were made. The matter came before this court on 9 October 2001 and was listed for hearing today. The father informed the court that he would be seeking legal advice. The parties were ordered to file and serve all affidavit evidence that they relied on. The father has filed a further affidavit in fact as recently as last Friday. The mother has only just received a copy of that and has been unable at this stage, she says, to prepare an affidavit in reply to it.
The father today, seeks an adjournment of the hearing for two reasons:
a)Because his solicitor is not able to attend the court.
b)Because he says, on the advice of his lawyer, that the children should be separately legally represented.
The mother of course says that she has not had a chance to reply to the allegations contained in the father's affidavit due to it's late service on her.
To my mind the important matter in the application is whether or not the children should be separately legally represented. The proceedings started early this month with an allegation by the father that the mother abused the elder child by means of physical abuse. Since then, and this is not a matter that has been covered by affidavit, there has been a further allegation of abuse, again of the elder child, alleged to be abuse of a sexual nature. This matter has been reported to the Department of Community Services and the joint investigation team I am told, is conducting investigations. The mother tells the court that she and the child concerned are in fact required to attend counselling at the New Children's Hospital at Westmead, and that counselling is to commence in just over a week's time on Friday, 9 November.
That is of course a very serious allegation. All allegations of abuse are serious, but some are more serious than others. The mother at this stage has not had the time or the opportunity to put that allegation in an affidavit for the purpose of these proceedings, and obviously it is a matter that the father, because of the gravity of the allegation, would wish to reply to. It's also a matter where the court would give favourable consideration to having the children separately represented by a lawyer of their own. It is one of the guidelines set out for the court in the decision of the Full Court of the Family Court in Re K (1194) FLC 92-461 where if there are allegations of abuse of one or more children, then the court should seriously consider separate representation.
At this stage neither party is legally represented although the father says that his solicitor will be appearing for him on another day. I am of the view that the allegations made relating to abuse are so serious that in the children's best interests, they should be legally represented. Obviously that can't be done in one minute and it will mean an adjournment. This is of course a matter of some inconvenience to the respondent mother, but the welfare of the children and particularly the child concerned, the subject of such a serious allegation, is obviously a matter that the court must give the highest priority to.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date:
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