BRADSHAW & BRADSHAW

[2011] FamCA 923

FAMILY COURT OF AUSTRALIA

BRADSHAW & BRADSHAW [2011] FamCA 923

FAMILY LAW – CHILDREN – with whom a child lives – where the mother seeks that final orders be made on a default basis – where the father was absent from the hearing – where the father has been warned that orders could be made in his absence on a default basis – where the Court is satisfied that the father no longer seeks to participate in the proceedings – best interests – orders made by default providing that the children live with the mother and that she have sole parental responsibility – further orders that the children spend time with the father as to be agreed between the parties.

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Ms Bradshaw

RESPONDENT: Mr Bradshaw

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 4896 of 2008

DATE DELIVERED: 8 November 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 8 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Not Relevant
SOLICITOR FOR THE APPLICANT:	Mother Appearing In Person

COUNSEL FOR THE RESPONDENT:	Not Relevant
SOLICITOR FOR THE RESPONDENT:	No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mrs West
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission

Orders

1. That the children B (“B”) born … 1998 and C (“C”) born … 1996 live with the mother who shall have sole parental responsibility for them.

2. That the father spend such time with and communicate with the said children on such a basis as is agreed between the parties.

3. That the appointment of the Independent Children’s Lawyer be discharged.

4. That all matters be removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4896  of 2008

Ms Bradshaw

Applicant

And

Mr Bradshaw

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. The matter before me today concerns two children B (“B”) born in 1998 and who is hence 15 years of age and C (“C”) born in 1996 and who is hence 13 years of age.  Proceedings were instituted in the Federal Magistrates Court on 10 December 2008 by the mother in these proceedings. 

2. As a consequence of some very serious allegations made by the mother, the matter was transferred to the Family Court and was included in this Court’s Magellan Project.  The allegations of abuse were as against the father but not in relation to the two children who are the subject of these proceedings, but rather in relation to a young boy D who was aged about 3 years.  It was the allegation of the mother that the father in these proceedings had sexually abused D who is the son of his then partner Ms E.

3. As a result of enquiries and investigations by the police, the father was subsequently charged with aggravated indecent assault of D.  There is limited information on the Court file as to the outcome of those proceedings but I understand that the prosecutor entered a nolle prosequi and hence they were not pursued through the criminal Courts.  The allegations were though of serious concern for this Court and a brief description of the allegations is seen in the Notice of Child Abuse filed by the mother on 22 January 2009.  As a consequence of the serious allegations made as against the father and the implications for his parenting capacity, his time with the two children B and C was terminated, including any telephone contact.

4. As is usually the case in a Magellan matter, a Family Report was ordered and received on 15 April 2009.  Whilst the outcome of that report was to await the final conclusion of the criminal proceedings, any such action in that regard has been pre-empted by the father’s response to the matters contained in that Family Report.   He, on an earlier occasion by his actions in filing a Notice of Discontinuance, indicated that he was not intending to take the matter further or pursue any orders in his favour.  However the Notice of Discontinuance filed by him on 15 September 2009 was in relation to the Initiating Application filed by the mother on 10 December 2008 and not his Response to Initiating Application filed on 6 February 2009.

5. As a consequence and out of an abundance of caution on 5 October 2011 Magellan Registrar Thomas ordered that the Independent Children’s Lawyer advise the father that some clarification was needed of his intentions but in the event that he did not attend or provide any further explanation to the Court, orders could be made in his absence on a default basis.

6. In compliance with those Orders of the Registrar, the Independent Children’s Lawyer wrote to the father on 14 October 2011 advising him of the matters that had been raised before the Registrar and of the likelihood of orders being made by default in the event of his absence at today’s hearing.  The father is indeed absent from these proceedings today and I am satisfied that I am entitled to proceed on a default basis, both as to the clear indication by the father in filing his Notice of Discontinuance (albeit in relation to the wrong document) and in his failure to respond to the letter received by him from the Independent Children’s Lawyer.

7. The mother seeks orders in terms of the aforesaid Initiating Application filed by her and because of the lengthy delay in the final determination of the proceedings, the last orders having been made by me on 4 May 2009, the mother filed an affidavit on 5 October 2011 updating the circumstances in relation to the two children.

8. Given that this matter is proceeding on a default basis, in my view it is not necessary for me to deal seriatim with all of the relevant sections of Part VII of the Act.  Suffice to say that I have had regard to the relevant Sections and, in particular, Section 60CA and Section 60CC.

9. The orders that the mother seeks in fact confirm the de facto position which has continued for quite some years now.  The mother’s Application is also supported by the Independent Children’s Lawyer and, in my view, would clearly represent the best outcome for the children and would represent their best interests.

I certify that the preceding nine (9) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 8 November 2011.

Associate: 

Date: