Broome and Welch

[2014] FamCA 465

FAMILY COURT OF AUSTRALIA

BROOME & WELCH [2014] FamCA 465

FAMILY LAW – CHILDREN – Undefended interim parenting application – Where the mother seeks that the child’s time with the father be suspended on an interim basis – Where the mother alleges the child has made a disclosure of alleged inappropriate sexual conduct by the father towards the child – Where the Court is currently unable to resolve the issue of unacceptable risk of harm

APPLICANT: Ms Welch

RESPONDENT: Mr Broome

INDEPENDENT CHILDREN’S LAWYER: Shedden & Associates

FILE NUMBER: BRC 1710 of 2013

DATE DELIVERED: 27 June 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 27 June 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Ryan of Legal Aid NSW

THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Morley

Orders

1. The Family Report, which was previously ordered and had been suspended, is to proceed to be prepared by the Family Consultant based in the Dubbo Registry.

2. The subpoena material be transferred from the Brisbane Registry to the Parramatta/Dubbo Registries.

3. Leave is granted for the Family Consultant to have access to all material produced on subpoena to date, and any further subpoenaed documents produced from time to time be made available to the Family Consultant.

4. Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they consider appropriate and such further subpoena are to be made returnable as soon as possible and be dealt with in a Registrar’s list.

5. Order 3(d) of Orders dated 31 May 2013 be suspended until further order, and it is noted that the Application in a Case filed by the mother on 27 August 2013 is otherwise withdrawn.

6. The proceedings are adjourned to the November 2014 sittings of the Family Court in Dubbo.

7. As soon as the Family Report is available, which is anticipated to be in October 2014, the matter is to be relisted before myself in the Parramatta Registry for further directions in relation to the preparation of the matter for trial, including any directions for the matter to proceed on an undefended basis.

8. Leave is granted to the Solicitor for the Respondent to appear by telephone on the adjourned date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Broome & Welch 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 PARRAMATTA

FILE NUMBER: BRC 1710 of 2013

MS Welch

Applicant

And

Mr Broome

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The mother’s application for Order 3(d) of Orders made on 31 May 2013 to be suspended until further order will be dealt with in the absence of the father.  I deal with it on that basis where the father has failed to appear on the previous two occasions and was aware that the matter should proceed today undefended.  The Court file indicates that he made contact with the Registry and was informed that he needed to be here today as the matter was his original application and that leave would not be given for him to appear by telephone.

2. I am satisfied that he is well aware of today’s proceedings and this is an application that has been outstanding for some time.

3. In her affidavit filed in relation to the Application in a Case the mother says that the child made a disclosure of an allegation of sexual misconduct by the father in around July 2013.  There is no dispute that the mother upon receiving a disclosure from the child took the child to the local hospital and the Department of Family and Community Services, which was then known as the Department of Community Services, was then contacted and an investigation was to be undertaken.  The mother sought that the father’s time with the child be suspended pending the outcome of the investigation. 

4. The outcome of the investigation is currently unknown and unfortunately documents produced on subpoena from both the Department and the police have been produced to the Brisbane Registry. 

5. There is no dispute between the parties, as I understand it, or it is certainly the assertion in the mother’s affidavit and I have no other evidence, that the father has not seen the child since about the middle of last year, and bearing in mind the child’s age, it may take some time for her to be reintroduced to the father.

6. Of significance there is still the issue of an unacceptable risk of harm that has not yet been resolved and is incapable of being resolved.  In circumstances where the father has not appeared to defend the matter, I make the order sought and that is that Order 3(d) of Orders dated 31 May 2013 be suspended until further order.  I note that the Application in a Case is otherwise withdrawn.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 27 June 2014

Legal Associate:       

Date:    30 June 2014