KALANT & JORDAIN

[2020] FamCA 43

FAMILY COURT OF AUSTRALIA

KALANT & JORDAIN [2020] FamCA 43

FAMILY LAW – CHILDREN – initiating application in the face of previous final judgment – contravention applications – fresh complaints of sexual abuse – Rice & Asplund – change of circumstances justifying further hearing.

Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Kalant

RESPONDENT: Ms Jordain

INDEPENDENT CHILDREN’S LAWYER: Ms M Burgess

FILE NUMBER: PAC 2727 of 2015

DATE DELIVERED: 23 January 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 23 January 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Bainbridge Legal

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mary Burgess

Orders

1. The Father is permitted to proceed on his Initiating Application filed 9 July 2019.

2. The Mother is directed to file a Response to the Father's Initiating Application by 19 February 2020.

3. The proceedings are adjourned for further directions, including directions in relation to the outstanding Contravention Applications to 3pm on 26 February 2020.

4. The Father’s solicitor is given liberty to appear on that day by telephone, provided he provides his details to the Canberra Registry of the Family Court of Australia seven days in advance of that date.

5. The Mother is forthwith to attend upon the Canberra Registry of the Family Court of Australia and file a Notice of Address for Service.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kalant & Jordain has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: PAC 2727 of 2015

Mr Kalant

Applicant

And

Ms Jordain

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings concern the child of the relationship X, along with property issues between the parents.  They were the subject of a six day final hearing before Judge Tonkin and the delivery of a judgment in those proceedings on 5 October 2018 by Judge Tonkin.  The effect of the Orders in general terms made by Judge Tonkin was that X would live with the Mother and that X would spend regular time, including school holiday time with her Father and also have the benefit of regular telecommunications with the Father.  The Orders made by Judge Tonkin were, I am told, made in a context of time between the Father and X having been interrupted on a number of occasions.  In making her Final Orders, when explaining the rationale for those Final Orders Judge Tonkin indicated that the case that she was dealing with, which involved contested applications as to who X should live with was finely balanced but her ultimate conclusion that X would live with the Mother and spend regular time with her Father was predicated on the necessity of the orders that she then made being strictly complied with.  I am told that, and understand from a cursory reading of Judge Tonkin’s judgment, that the sexual abuse allegations formed a part of her Honour’s determination in which her Honour ultimately determined that the allegations were not made out and that she determined that the Father posed no unacceptable risk of abuse for X.

2. The Final Orders made by Judge Tonkin were the subject of an appeal wherein the Full Court, on 27 November 2019, disallowed the appeal insofar as it related to the parenting orders made by Judge Tonkin but allowed the appeal in respect of property and remitted the matter to the Federal Circuit Court the so that that contest could be reheard.

3. While that process was going on and following that process there have been a suite of contravention applications brought by the Father against the Mother.  Those and the primary proceedings have been transferred to this Court from the Federal Circuit Court due to the complexity of the matter.

4. In December 2019 I made procedural directions to cause the contravention application filed in April 2019 by the Father to be listed today, 23 January 2020.  I did that on the basis of representations made to me by the Father’s and Mother’s solicitors that it was necessary for me to consider that contravention in order to determine whether or not the proceedings should be reopened insofar as they relate to children on an application of the principles contained in the case of Rice & Asplund.[1] 

   [1] (1979) FLC 90-725

5. When the matter came before me today to deal with the contravention proceedings the Mother appeared unrepresented and has represented to me that she is unprepared to deal with the contravention proceedings.  While it became clear that she was not served with contravention proceedings in accordance with the Rules that provide for special service by hand for such applications, there is good reason to think that she was properly on notice of those proceedings given that they were the subject of specific directions being made in December 2019. 

6. At this stage there is no need to determine that particular issue, however, as what has emerged in considering whether or not these proceedings should be adjourned is that the parties agree that the proceedings should be reopened.  When I refer to the parties that incorporates Ms Burgess, who appears as the Independent Children’s Lawyer, this being her first appearance in the matter today.  Ms Burgess, however, was involved in the Final Hearing of the matter. 

7. The parties’ mere agreement that the matter should be reopened does not necessarily determine the matter, although it speaks strongly to such a result. 

8. Such a result is compelled by two other factors.  One of those is that from the period of May 2019 to December 2019 the Father had spent no time with X.  That fact is agreed between the parties although it seems that it may be by virtue of interference with the Family Court Orders by virtue of a Family Violence Order made in relation to X. 

9. Whatever the case, it operates as a sharp change in circumstances, particularly in the context of Judge Tonkin’s observation that the finely balanced determination she made was reliant upon compliance with orders, or rather I would take it in the context of this matter reliant upon compliance with the scheme set out in those orders. 

10. The second matter is that not withstanding Judge Tonkin’s determination that there was no unacceptable risk of harm, the Mother raises for me further sexual abuse allegations, asserting to me that X has alleged that the Father has on a number of occasions touched her private parts.  Although not yet the subject of specific evidence, the making of the allegation, it may be expected, will be followed by evidence as to the representations made by X to her Mother and the investigations undertaken by the police. 

11. Those two matters lead to the conclusion that, while the matter has been thoroughly considered and determined by Judge Tonkin only a short time ago, the emergent circumstances compel the Court to reconsider the matter as it being in X's best interests for the matter to be reconsidered.

12. In this matter the Father has filed an Initiating Application which it seemed was opposed on the principles contained in Rice & Asplund.  That opposition vanishes with the Mother's lack of opposition to the matter proceeding again to hearing.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 23 January 2020.

Associate: 

Date:  31 January 2020