KILKENNY & RAWLINSON

[2009] FamCA 1267

FAMILY COURT OF AUSTRALIA

KILKENNY & RAWLINSON [2009] FamCA 1267

FAMILY LAW – PRACTICE AND PROCEDURE – first day of trial – case management

FAMILY LAW – CHILDREN– Magellan – interim proceedings – with whom a child lives – proceedings between the mother and other party – oral application by the mother seeking that the children be placed in foster care – where the children have been placed with the other party for a considerable period of time – where the Minister has chosen not to participate in the proceedings – where it is not in the children’s best interests to place them in foster care – application dismissed – where there is a need to protect the children from psychological harm – continuation of orders restraining the mother from attending any premises the children may reside or frequent

Family Law Act 1975 (Cth) ss 60B& 60CC

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Kilkenny

RESPONDENT: Ms Rawlinson

INDEPENDENT CHILDREN’S LAWYER: Denise M Rieniets & Associates

FILE NUMBER: ADF 205 of 2006

DATE DELIVERED: 8 December 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 8 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Milen

SOLICITOR FOR THE APPLICANT: Jo-Anne Milen & Associates

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Noble

SOLICITOR FOR THE INDEPENDENT CHIDLREN’S LAWYER Denise M Rieniets & Associates Pty Ltd

Orders

1. This matter is adjourned to 6 April 2010 at 10.00 am for a further 1^st Day Hearing directions to prepare the matter for a Conclusion of Trial for 15 days commencing on 24 May 2010 before the Honourable Justice Dawe.

2. The parties are directed to bring to the adjourned hearing date of 6 April 2010 a list of each of the witnesses they propose to call and the issues which the witnesses will deal with and a list of documents upon which they intend to rely and if there is any change to the final orders that they seek then specific detail of final orders they are seeking.

3. The mother (with further advice or assistance where it is available to her) give details of any additional proposed witnesses and the issues they are going to deal with and provide a list to the Court, the solicitors for the Other Party and the Independent Children’s Lawyer within twenty-one [21] days from today.

4. The oral application of the mother in relation to the removal of the children to foster care is dismissed.

5. Paragraph 3 of the Orders made by the Honourable Justice Burr on 6 October 2009 is continued.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 205 of 2006

MS KILKENNY

Applicant

And

MS RAWLINSON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter was listed before me today for a first day of the trial in relation to the children, W and J.  The matter has a substantial history, having first come before this Court in February 2006 and having been part of the Magellan programme for years.  The matter has previously had another first day before another Judge but did not proceed to a conclusion. 

2. The Court has heard from each of the parties and counsel, being Ms Milen as counsel for the other party (Ms Kilkenny), Mr Noble as counsel for the Independent Children’s Lawyer and the mother appears in person.  At the bar table she had the assistance of a friend to help her put her submissions to this Court.

3. It is unfortunate that Mr Deegan, a solicitor and practitioner of this Court who has previously appeared for the mother pro bono, was unable to appear today, understandably due to some difficult personal circumstances.  The directions that I have made in relation to the indication of the witnesses who will be appearing for each party give the mother an opportunity within the next 21 days to add to that list.  I have given her that opportunity so that she can seek further advice or assistance where it is available to her.  I have further adjourned the question of witnesses to be brought before the Court and issues with which they deal to the hearing on 6 April at 10.00 am because unfortunately the Court is not able to list the conclusion of the trial until 24 May 2010.

4. I have now set aside 15 days, commencing on Monday 24 May 2010, for the conclusion of the hearing in this matter. 

5. On numerous occasions during the hearing before me today the mother has pleaded in an emotional way to the Court to take the children from the other party, Ms Kilkenny, and place them in foster care with anybody.  She has also suggested that her friend who appears in Court today would be prepared to have the children placed in her care as a foster parent.  The application by the mother is opposed by the other party and by the Independent Children’s Lawyer.

6. The Court has heard the submissions of the mother because the Court’s primary responsibility is to consider the best interests of the children.  That is the paramount consideration in proceedings concerning the children.  Albeit that this was a first day of trial which in a Magellan matter would otherwise be treated as a directions hearing, I have considered it appropriate to hear the matter even though it was an oral application brought by the mother.  The Court is required under the provisions of Part VII of the Family Law Act 1975 (Cth) and following the decision of the Full Court in the matter of Goode & Goode (2006) FLC 93-286 to give careful consideration to what orders would be in the best interests of the children.

7. Those provisions of the Act which relate to each of the parents having equal shared parental responsibility for children do not apply in this case as it is not a proceedings in which the mother and father are in dispute.  Rather, it is proceedings in which the mother and the other party dispute the ongoing arrangements for the care of the two children. 

8. The provisions in relation to section 60B and section 60CC need to be seen in the context of this difficult and complex matter. What is primarily of significance in this matter is the fact that the children have been placed with the other party for a considerable period of time and have been in her care including pursuant to consent orders which were made providing for the children to live with the other party.

9. That consent order which is the most recent order dealing with where the children live was made by Senior Registrar Kelly, as she then was, on 16 January 2007 when Mr Hemsley appeared for the other party, Mr Deegan appeared for the respondent mother and Ms Buckerfield appeared for the Independent Children’s Lawyer.

10. That order, by consent, provided that W (who was born in December 1997) and J (who was born in March 2000) live with the applicant, Ms Kilkenny who is to have responsibility for decisions regarding their care, welfare and development.  At that time there were also orders made in relation to the mother spending time with the children at the Children’s Contact Service.  Since that order was made there have been ongoing proceedings particularly in relation to obtaining information from the Department for Families and Communities, Families SA and in relation to the ongoing question of the mother spending time with each of the children.  It has been a considerable period of time since the children have spent any time with the mother.

11. The mother’s submissions to the Court today are on the basis that she has done nothing whatsoever wrong and that the only basis upon which the children have been making these comments to any of the parties is, as I understand her submissions, that they have been encouraged or taught to say these things by the other party.  She puts to the Court, therefore, that the children should be placed in foster care while the matter is, as she puts it, “sorted out later”. 

12. In relation to the welfare of the children, I also rely upon the reports which have been before the Court arranged by the Independent Children’s Lawyer from Dr M and the reports of Dr B.  I also consider the submissions of the mother, on behalf of the other party and Independent Children’s Lawyer.

13. The most significant features to be considered are, of course, the primary considerations, protecting the children from any harm and ensuring that they have a meaningful relationship with their parents and other significant persons.  Specifically, the other considerations include the capacity of the parties to provide for appropriate care for the children and the attitude displayed in relation to their parenting role. 

14. In that regard, I take into account (on a preliminary basis only and without making any indication that a decision will be made on that basis when I have heard all of the evidence and it has been tested) the Child Protection Service report and the judgment of Stipendiary Magistrate Eldridge of 20 August 2009 which was a judgment in the Youth Court in relation to the Minister’s application which resulted in the mother’s youngest child, H (a child born in January 2007) being placed under the guardianship of the Minister until she attains the age of 18 years.  That judgment includes reference to allegations and findings made concerning the mother’s capacity to provide for the care of H and on page 30 the summary of findings and orders was that:

    “(1)The mother has abused or neglected some other children and there is reasonable likelihood of [H] being abused or neglected by the mother. 

    (2)There is a significant risk that the child will suffer serious harm to her physical, psychological or emotional wellbeing against which she should have, but does not have, proper protection.

    (3)The guardian is unable to care for and protect the child and is unable to exercise adequate supervision and control over the child.”

15. That finding by the Stipendiary Magistrate was made after hearing oral evidence and, in particular, evidence that related, to a certain extent, to the two children who are the subject of these proceedings.  The Minister has been aware of these proceedings before the Family Court of Australia and is aware of the placement of the children, W and J, with the other party and has chosen not to participate in these proceedings in the Family Court of Australia. 

16. I have carefully considered all of these submissions and, on an interim basis, I am not satisfied that it is in the best interests of the children to make any order removing them and placing them in foster care. 

17. I should add that notwithstanding the judgment of His Honour Justice Benjamin, in Tasmania recently (wherein he found that he had the jurisdiction to order the Director General of the relevant department in Tasmania to take steps even though the department was not a party to those Family Court proceedings) I am not yet convinced that I have such a power in relation to directing any department to place children in State foster care pursuant to the Family Law Act 1975 (Cth) unless the Minister chooses to become a party to these proceedings.

18. I therefore dismiss the oral application of the mother in relation to the removal of the children into foster care.  It is not necessary to continue the orders that the children, W and J, live with the other party because those orders are currently in existence. 

19. I do, however, continue the order of Justice Burr which was made on 6 October 2009, paragraph 3, which restrained the mother from attending at any premises where the children, W and J, may reside or frequent including, but not limited to, the R Primary School at R, the Church at L, the children’s cub and scout hall at R and within 500 metres of the children’s home.  I do so on the basis that I consider that the mental health of the children and the need to protect them from psychological harm is established on an interim basis, bearing in mind the reports of Dr M and Dr B and the concerns expressed for the welfare of the children.  I do so clearly on the basis that I make no definitive finding which will be binding upon me to the extent that I will then exercise a fresh determination of the relevant facts when all the evidence has been heard and tested.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date:  24 December 2009