Herdman and Howard

[2009] FamCA 1216

FAMILY COURT OF AUSTRALIA

HERDMAN & HOWARD [2009] FamCA 1216

FAMILY LAW – CHILDREN – allegations of sexual and physical abuse by father – father not taken part in proceedings – final orders as sought by mother – sole parental responsibility to mother

Family Law Act 1975 (Cth)

APPLICANT: Ms Herdman

RESPONDENT: Mr Howard

INDEPENDENT CHILDREN’S LAWYER: Ashley Kent

FILE NUMBER: ADC 393 of 2009

DATE DELIVERED: 23 July 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 23 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Childs

SOLICITOR FOR THE APPLICANT: Catherine Leis

SOLICITOR FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bowler

SOLCITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ashley Kent LSC

Orders

1. That the children S born … March 2007 and T born … July 2008 live with the mother and the mother have the sole parental responsibility for the said children.

2. That the father be restrained and an injunction is granted restraining him from having any contact or communication with the said children.

3. That the order appointing the Independent Children’s Lawyer on 17 June 2009 be discharged.

4. That pursuant to Section 62B and Section 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 are set out in the attached Fact Sheet.

5. That all applications be dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 393 of 2009

MS HERDMAN

Applicant

And

MR HOWARD

Respondent

EX TEMPORE REASONS

1. This matter commenced in the Federal Magistrates Court on 2 February 2009 with an application by the mother.  The primary order she sought was that the two children, the subject of these proceedings, live with her and she have sole parental responsibility for them.

2. The father has not filed a document in this matter.  He has attended two hearings before the Federal Magistrates Court, namely on 23 April 2009 and 12 June 2009.  I note that on 23 April 2009 an order was made that the father file and serve a response and supporting affidavit.  He did not comply with that order, and subsequent to the matter being transferred to this court, which occurred on 12 June 2009, which was a hearing where the father attended by telephone, he has still not filed any documents.

3. After the case was transferred to this court on 12 June 2009, it was placed in the Magellan Project because of the serious allegations made by the mother against the father, namely and in summary, that the father had sexually and physically abused her daughter from a previous relationship, that’s the child R, and physically abused one of the children of this relationship, namely, T.  The mother also believes that the other child of this relationship, S, is at risk, and the mother further alleges that the father is physically abusive to one of his two sons of a previous relationship.

4. The allegations are concerning.  They are serious.  I have before me, as Burr J did on 6 July, a letter from Families SA of 24 June 2009, and reports from the Child Protection Services dated 2 December 2008, 9 January 2009 and 27 March 2009.  Those reports do not relate to the two children the subject of these proceedings, but they relate to the child R, to whom I have already referred.  They detail serious and concerning allegations of sexual and physical abuse.

5. The father, to repeat, has chosen not to take any part in these proceedings in the sense of filing any documents refuting the allegations, for example, or putting a different slant on them or taking the opportunity to put his side of the story, and he has failed to attend any hearing in this court.  He has not attended today and nor did he attend on 6 July 2009. 

6. Burr J made an order on 6 July that in the event that the father intends to promote any applications before the court that he do attend in person or by legal practitioner on the adjourned date.  His Honour noted that in the event that he, the father, failed to do this the court may make final orders by default in his absence.  That order, in the usual way, was sent out by the court to the father’s address.  Just looking at the file, it does not appear that that has been returned, and, indeed, not only was that order sent out to the father, but the covering letter identifies that the matter will be heard on this day, 23 July 2009.  Yet the father has still chosen not to attend.

7. In those circumstances, the mother’s counsel asks me to make final orders today in terms of paragraph 1 of the initiating application filed by the mother on 2 February 2009.  I am also asked me to make a final order in terms of paragraph 5 of the order of Burr J of 6 July 2009.

8. Having read the file and noted the history of this matter and, particularly, the allegations, and noting, again, the father’s failure to file any documents and his failure to attend on 6 July or today, I have no hesitation in acceding to the request of the mother’s counsel, which is importantly supported by the independent children’s lawyer.

9. In my view, it is undoubtedly in the best interests of these children that the orders sought be made. 

I certify that the preceding 9 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 23 July 2009.

Associate