Kim and Scilian & Ors

[2013] FamCA 600

FAMILY COURT OF AUSTRALIA

KIM & SCILIAN AND ORS, [2013] FamCA 600

FAMILY LAW – CHILDREN – Best interests
FAMILY LAW – CHILDREN – With whom a child lives - Family violence

Family Law Act 1975 (Cth)
APPLICANT:	Ms Kim

FIRST RESPONDENT: Mr Scilian

SECOND RESPONDENT  Mr B

THIRD RESPONDENT   Mr C

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr Marchetti

FILE NUMBER: MLC 10889 of 2010

DATE DELIVERED: 7 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 7 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

SOLICITOR FOR THE 1^ST RESPONDENT: Ms Pandelli

INDEPENDENT CHILDREN’S LAWYER David Stagg Tonkin & Co

COUNSEL FOR THE ICL Mr Marchetti

Orders

1. That all previous Parenting Orders be discharged.

2. That Mr Scilian have sole parental responsibility for the child  D born … 2010 (“D”) and she live with her Father;

3. That D spend time and communicate with her Mother at such times and upon such conditions as may be agreed between the parents in writing from time to time.

4. That Mr B have the sole parental responsibility for the child E born … 1999 (“E”) and she live with her Father.

5. That E spend time and communicate with her Mother at such times and upon such conditions as may be agreed between the parents in writing from time to time.

6. That Mr C have sole parental responsibility for the child F born … 2004 (“F”) and he live with his Father.

7. That F spend time and communicate with his Mother at such times and upon such conditions as may be agreed between the parents in writing from time to time.

8. That each of the First, Second and Third named Respondents, namely:-

   Mr Scilian;

   Mr B; and

   Mr C

   be at liberty to apply for a Passport for their child, respectively:-

   D born … 2010;

   E born … 1999; and

   F born … 2004,

   without first having obtained the Mother’s consent in writing provided they provide the Mother not less than 45 days written notice of their intention to obtain such Passport and it is requested that the Department of Foreign Affidavit and Trade provide such assistance as may be necessary and the passport for the child E presently held in the Registry of this Court, be released to Mr B on or after 30 September 2013.

9. That for the purpose of providing written notice to the Mother pursuant to these Orders, compliance will be deemed to have been made upon each Father forwarding to the Mother such notice by Registered Post to the Mother’s Address at G Street, Suburb H.

10. That a sealed copy of these Orders be personally served upon the Mother and for such purpose, the First Named Respondent Father forthwith arrange for such service.

11. That the Mother be at liberty to seek to set aside these Orders within 42 days of service of these Orders upon the Mother, by filing an Application and supporting Affidavit, detailing the reasons for her absence this day.

12. All extant Applications be otherwise dismissed.

13. The appointment of the Independent Children’s Lawyer be discharged 43 days following service upon the Mother of these Orders.

14. That pursuant to Sections 65DA and 62B 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 the parties to adjust to and comply with an Order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10889 of 2010

Ms Kim

Applicant

And

Mr Scilian

First Respondent

Mr B
Second Respondent

Mr C
Third Respondent

REASONS FOR JUDGMENT

1. This matter comes before me today as the first day of a hearing.  The applicant in the case is Ms Kim, aged 32.  She filed an application initiating proceedings on 11 November 2011.  She has not appeared before the Court this day.  The other parties in the proceeding are the first respondent, Mr Scilian, who is 44 years of age and resides in Suburb I.  He is represented by his solicitor, Ms Pandelli.  The second respondent is Mr B, who is aged 42 years of age and resides in Suburb J.  And the third respondent is Mr C, who is resident in Suburb K.  He is 42 years of age.  Both the second and third respondents were unrepresented.

2. Each of the respondents is the father to a child with the applicant mother.  The children who are the subject of the application before the Court are D, who was born in 2010 and is aged three years, F, who was born in 2004 and is aged nine years, and E, born in 1999, who is aged 13 years. 

3. I am assisted today by Mr Marchetti appearing on behalf of the Independent Children's Lawyer representing the interests of each of the children in this matter. 

4. Each of the respondents and the Independent Children's Lawyer urge me to make final orders this day disposing of these proceedings and making parenting orders which will provide that each of the respondents have sole parental responsibility for their child and that each of their children live with them respectively. 

5. In support of that application, I have been requested to and have read the following:

   (a)The report of Ms L, a Family Consultant whose report is dated 14 September 2011 (“the Family Report”);

   (b)A report of Dr M, dated 28 March 2011 which is annexed to an affidavit of Dr M, filed 31 March 2011; and

   (c)An affidavit of Ms N, filed 10 February 2012, she being a person who has supervised the mother’s time with the children. 

6. It is evident from the report of the Family Consultant, Ms L, that this matter has had a most unfortunate history. 

7. In her report, she describes a history of family violence that each of the children has been exposed to.  She describes circumstances whereby the mother has abused drugs and indeed there is a suggestion that she has a drug addiction.  I note that there are previous orders of the Federal Magistrates Court, as it then was, requiring the mother to attend for drug screen testing.  I note, and the Family Report details at paragraph 3, that there have been multiple intervention order proceedings relating to issues of family violence, and there is also reference within the report to the involvement of the Department of Human Services. 

8. The report describes the history of time that these children have spent with their mother.  Largely, that time has been supervised. 

9. The time that the children have been spending with the mother has broken down.  Most recently in October 2012, the services of O Care were withdrawn.  I am informed by Mr Marchetti this day that the child, E, has not seen her mother since October 2012 and that the child, D, most recently saw her mother briefly on Mother's Day of 2013. 

10. I note that the Family Report contains admissions by the mother of violence against the children and particularly I note paragraph 25 of that report.  Sadly, the eldest child, E, describes a fear of her mother.  I note in particular paragraphs 74 and 75 of the family report and the disclosures made by the child, E, at paragraph 78 of that report.  Similarly, I note that at paragraph 88 of the report, the child, F, also discloses being subjected to violence by his mother.  He described being whacked and he describes a fear of his mother.  Ms L observed, in the Family Report, that there was an ongoing risk to these children, and it is for those reasons, presumably, that a supervision order was made at that time.

11. Since the Family Report has been released, there have been a series of orders made by this Court requiring the mother to attend parenting courses, relationship skill courses and also to attend for drug screen testing.  In particular, I refer to the orders of 28 November 2011, the orders of 14 February 2012 and the orders of 3 September 2012.  I am informed by Mr Marchetti and Ms Pandelli this day that there has been largely no compliance by the mother with the orders requiring her to submit for such drug screen testing and to attend the various counselling agencies and courses that she was required to pursuant to those orders. 

12. I also note the orders made by Cronin J on 19 June 2013 requiring the applicant mother to file an amended application by 4 pm on 17 July 2013.  Again, that order has not been complied with.  There is a notation to that order which reads as follows:

    If a party does not comply with paragraph 3 of these orders, the other party who has so complied may make an application to proceed on an undefended basis on the return date.

13. That is the application that is before me today.  Having regard to the history of this matter and the history of non-compliance by the mother with orders of this Court, I am satisfied that it is appropriate that the matter proceed on an undefended basis this day.  Having read the material to which have I been referred, I am also satisfied that the proposed orders are appropriate and are in the children’s best interests.

    ORDERS DELIVERED

14. I am also asked to make orders with respect to applications for passports for each of the children.  I note that the first respondent has sought an order largely in those terms in his further amended response to initiating application filed 4 July 2013.  Likewise, the second respondent has sought an order that E’s passport be returned to him.  The third respondent in his amended response filed 29 July 2013 has also sought an order that the mother execute documents necessary to enable a passport to issue in respect of the child, F.

    ORDERS DELIVERED

15. I note that there have been protracted proceedings in the courts, that there has been a series of non-compliances by the applicant mother and I note the importance for each of these children that there be finality in respect of these proceedings so that they can pursue a settled and happy life without further interruption or disruption as a result of court proceedings.

    ORDERS DELIVERED

16. I propose to mark the minute with the letter A.  It will remain on the court file and I would ask that the independent children's lawyer engross those orders and provide a clean copy to my associate within 7 days.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 7 August 2013.

Associate:

Date:7 August 2013