CHARLES & BERN

[2011] FamCA 107

FAMILY COURT OF AUSTRALIA

CHARLES & BERN [2011] FamCA 107

FAMILY LAW - CHILDREN – final orders – where consent orders were previously made providing that the father spend time with the child – where the proceedings have an extensive history – where the mother makes allegations of sexual abuse against the father – where the father has not attended at the hearing and has given no indication as to the orders he seeks – best interests – previous orders providing that the child spend time with the father be discharged.

Family Law Act 1975 (Cth)

APPLICANT: Ms Charles

RESPONDENT: Mr Bern

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 147 of 2009

DATE DELIVERED: 15 February 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 15 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dixon

SOLICITOR FOR THE APPLICANT: Polly Dixon & Co

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Winter

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

Orders

1. That paragraphs 4 and 5 of the Orders made on 3 April 2002 be discharged.

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

1. That all applications before the Court be dismissed and removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 147  of 2009

Ms Charles

Applicant

And

Mr Bern

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I have before me today proceedings which have been long running.  The proceedings between the parties were first initiated over 10 years ago on 13 October 2000.  Numerous orders have been made during the course of the proceedings between the parties and final orders were previously made by consent on 3 April 2002.  Those orders provided that the parties have joint responsibility for the one child of their relationship D who was born in September 1997 and who is hence aged almost 13 1/2 years.  Those orders also made provision that D was to reside with the mother.  Various orders were made for the father to have “contact” (as it was then called) with the child.  However, that period of litigation between the parties did not conclude until 22 October 2004.

2. That was not to be the end of it though as the father filed further proceedings on 16 January 2009 in the form of a Contravention Application alleging that the mother had failed to provide “contact” as she had been ordered.  The mother responded by an Application filed in the Federal Magistrates Court on 3 March 2009 in which she sought that the Orders of 3 April 2002 which provided for the father to have “contact”, be discharged.   More significantly, in her Affidavit filed in the proceedings on that same date, she alleged that the father had sexually abused D and sought immediate orders for the suspension of his “contact” and that the matter be referred to the Family Court for inclusion in the Magellan Project.  An order to that effect was made on 10 March 2009 by Federal Magistrate Kelly.

3. This Court then made the usual orders for the appointment of an Independent Children’s Lawyer and for the preparation of the Magellan Report letter by the Department for Families and Communities – Families SA.  That report letter also records detail of the allegations of sexual abuse of D by the father.  Ultimately the father was charged by the police with various criminal offences which related to his sexual abuse of D.  On 7 April 2009 the proceedings in this Court were adjourned for a lengthy period to enable those criminal proceedings to be resolved.  Those proceedings were resolved when the Director of Public Prosecutions determined not to proceed and entered a nolle prosequi apparently on 5 October 2010 in the District Court.  The matter was then relisted for hearing in this Court and it came before the Magellan Registrar on 24 November 2010.

4. The mother urges me to make final orders today, an application supported by the Independent Children’s Lawyer.  There is no attendance by the father today and the legal practitioner previously representing him filed a Notice of Ceasing to Act for him on 10 February 2011.  The only residual concern I had was that the father ought to be afforded one last opportunity to indicate to the Court whether or not he was seeking any orders from this Court.  However, I am satisfied that it is not appropriate to do so and that it is appropriate to finally dispose of the matter today.  I do so for a variety of reasons, including:-

   (a)his solicitor, at the hearing before the Magellan Registrar on 24 November 2010, indicated at some length that she had written instructions from the father not to proceed with any applications before this Court;

   (b)the Independent Children’s Lawyer was kind enough to record on the transcript of today’s proceedings the lengthy report that he had received from his Counsel on that date, being Mrs Lindsay, where there can be no doubt as to the father’s intimation through his counsel that he was not intending to take any further part in these Family Court proceedings;

   (c)the Magellan Registrar nonetheless extended an additional opportunity to him to indicate to the Court whether he wished to participate further and required the father’s counsel to warn him of the consequences of non-attendance before the Court on the subsequent hearing to be listed, which is the hearing before me today.

5. I am further satisfied that it is appropriate to finally dispose of the matter from the affidavit materials before the Court and the fact that the mother has been D’s primary carer for many years now, supported by orders of the Court made as far back as 3 April 2002.

6. In all of the circumstances, making final orders today, I am satisfied, would represent D’s best interests.

I certify that the preceding six (6) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 15 February 2011.

Associate: 

Date: