Detruit and Warrant

[2010] FamCA 129

FAMILY COURT OF AUSTRALIA

DETRUIT & WARRANT [2010] FamCA 129

FAMILY LAW – CHILDREN – Magellan – ex-parte application – interim parenting orders 

Family Law Act 1975 (Cth)

FATHER: Mr Detruit

MOTHER: Ms Warrant

FILE NUMBER: MLC 852 of 2010

DATE DELIVERED: 19 February 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 19 February 2010

REPRESENTATION

COUNSEL FOR THE FATHER: Ms Boymal

SOLICITOR FOR THE FATHER: Gorman & Hannan

THE MOTHER: Ex parte application

Orders

1. That the further hearing of all extant applications be adjourned before the Honourable Justice Brown and the Magellan Registrar on 15 April, 2010 at 10:00 am.

2. That pursuant to s.68L(2) of the Family Law Act 1975 the interests of the children E born … January, 1999 and J born … November, 2001 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation.

3. That forthwith upon appointment by Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

4. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

5. That pursuant to s.91B of the Family Law Act 1975 the Department of Human Services Victoria be requested to intervene in these proceedings.

6. That the Department of Human Services be requested to prepare a report as to the father’s allegations contained in his form 4 filed 1 February, 2010 and that such report be filed at this Court no later than 12 April, 2010.

7. That the Registrar of the Melbourne Registry of the Family Court arrange for a subpoena to issue to the Department of Human Services for production of the relevant file by 12 April, 2010.

8. That until further order the parties and the Family Court Child Dispute Services Manager be at liberty to inspect the Department of Human Services file, save for any confidential documents.

9. That as soon as practicable the father serve the mother with the following documents :

   (a)     copy of the application filed 1 February, 2010;

   (b)copy of the affidavit sworn by him and filed 1 February, 2010;

   (c)     sealed copy of this order. 

10. That the mother file and serve a response to the father’s application filed 1 February, 2010, within 14 days of service on her of this order. 

11. That until further order the children E and J live with the father and have such time and communication with the mother as is agreed between the parties. 

12. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

13. That the preparation of these orders be expedited forthwith.

14. That the reasons for judgment this day be transcribed and copies made available to the parties.

15. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 852 of 2010

MR DETRUIT

Father

And

MS WARRANT

Mother

REASONS FOR JUDGMENT

1. This is the first return date of an application filed on 1 February 2010.  The applicant is the father of two children, E and J.  E was born in January 1999 and J in November 2001.  Their parents separated in late 2004.  The family were then living in New South Wales. 

2. In about 2005, the father returned to Victoria, a return attributed by him to work and family commitments.  Since then, he has been seeing the children during school holidays and has had regular, if not frequent, contact with them.  In his affidavit filed 1 February, 2010, he deposes to a number of concerns about their lives in New South Wales.  His concern came to a head when his daughter E told him that she had been “touched” by her mother’s then boyfriend, Mr P. 

3. E subsequently told her father that she had been awoken when Mr P came into her room;  she said he touched her on her genitals and digitally penetrated her.  It is alleged that, on learning of this, the mother did nothing for a few days.  New South Wales police were alerted and the father’s evidence is of a belief that Mr P has been charged with criminal offences and is to attend court later this month. 

4. The father deposes to a number of concerns about the mother’s parenting of the children.  No doubt E’s disclosure has focussed his mind on these problems but as they were not sufficiently serious to lead him to action earlier, the court needs to be cautious about the weight to be given to them. 

5. After E made these disclosures and the father expressed concern about the mother’s tardiness in addressing the matter, the father collected the children to have them for his half of the summer holidays pursuant to orders made in the Local Court of New South Wales soon after the parties separated.  The children have been living with him in Victoria since.  He did not return them to the mother at the end of the school holidays.  They have been enrolled in C Primary School, which they are attending. 

6. This is an ex-parte application.  The court has before it, marked F-1, a letter from a firm of process servers in which problems with service have been summarised.  It is not alleged that the respondent mother is avoiding service.  There is only one registered process server who services the area in which she lives.  The recent floods in the area have impacted on the capacity to move into the area and thus the mother has not been served.  That process server advised that he would not be in the area for at least 10 days, and that the documents will be served on the mother at that time. 

7. The court is always cautious about making orders ex-parte;  natural justice and procedural fairness require both parties to a dispute to be heard.  However, at this stage the children are living with the father.  They have been with him for close to three weeks of the school year.  There is no evidence that any application has been brought by their mother for their return or to spend time with them.  There is uncertainty about whether she has severed her relationship with Mr P and the arrangements to which the children would return, were they to travel back to New South Wales. 

8. I will appoint an independent children’s lawyer who will represent the interests of the children and, as the matter is now in the Magellan List and a form 4 has been filed, the Department of Human Services in Victoria will investigate and prepare a report for the court.

9. I am satisfied the children’s best interests will be served by orders which provide for them to live with the father and have such time and communication with their mother as they agree, until further order.  There is no evidence the mother has been pressing to see them.  It is important their relationship with her is maintained, so long as its maintenance does not expose them to an unacceptable risk of abuse.  It would be premature to make any orders relating to parental responsibility. 

10. Orders will provide for the mother to file a response and affidavits and the matter can be considered further on 15 April, 2010. 

I certify that the preceding
10  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the         day of         2010.

…………………………………………
Associate.