KIRKHAM & DOLTON

[2020] FamCA 932

FAMILY COURT OF AUSTRALIA

KIRKHAM & DOLTON [2020] FamCA 932

FAMILY LAW – CHILDREN – Final Orders – where the mother and the father consent to final parenting orders – where the orders provide for the child to live with the mother and spend no time with the father – where the ICL does not oppose but does not consent to the orders in circumstances where there is a lack of independent evidence – orders made as agreed between the mother and the father.

Family Law Act 1975 (Cth)

APPLICANT: Mr Kirkham

RESPONDENT: Ms Dolton

INDEPENDENT CHILDREN’S LAWYER: Wilkinson and Associates

FILE NUMBER: MLC 5447 of 2018

DATE DELIVERED: 14 August 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 14 August 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Packer, J & K Law

SOLICITOR FOR THE RESPONDENT: Ms James-Murphy, Docherty Legal

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Ms Wilkinson, Wilkinson and Associates

Orders

1. All previous Orders be discharged.

2. The Mother have sole parental responsibility for the child Y (born … 2014).

3. Y live with the Mother.

4. Y spend no time with the Father.

5. The Father be permitted to send cards, letters and gifts to Y. Such items to be sent to the Maternal Grandmother’s address of B Street, Suburb C, or other such address as directed by the Mother, and to be distributed to Y at the Mother’s discretion.

6. All extant applications in these proceedings be dismissed.

7. There be no order as to costs.

BY THE COURT IT IS ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

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 Kirkham & Dolton 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 MELBOURNE

FILE NUMBER: MLC 5447 of 2018

Mr Kirkham

Applicant

And

Ms Dolton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter is listed in my docket for a final hearing with respect to the parties’ competing parenting applications in relation to the child Y, who is aged six years.  The parties today ask me to make final parenting orders by consent in relation to the matter, it being their submission that those orders are in Y’s best interests. 

2. This matter has a long and unfortunate history.  The central issue in dispute is the allegation that Y has been sexually abused by the father.  That allegation is denied by the father.  As a result of those allegations, the parties and Y have had significant engagement with social services and Victoria Police. Since those allegations were made, Y lives with the mother and spends no time with the father. 

3. Y presents today as a very troubled young child.  She has been engaging in self-harm.  She is under the care of a psychologist and she has had further support from a range of allied health professionals. 

4. It is as a result of the challenges facing Y that the father has formed the view that Y’s interests are best served by bringing an end to these proceedings, on the basis of orders that Y live with the mother and spend no time with him; it is his view that were he to pursue his application for time with Y that would likely cause her further distress.  He seeks to avoid that outcome.  The father is to be commended for taking that approach. 

5. The effect of the proposed orders is that the father’s relationship with Y will end.  Save for a provision for him to send cards, letters and gifts to Y, he will have no communication or contact with her.

6. Notwithstanding the seriousness of the impact of that position, the view of the mother and the father is that that outcome is in Y’s best interests at this time. 

7. The Independent Children’s Lawyer does not oppose orders in those terms.  She submits that she is not in a position to consent to the order in circumstances where the allegations have not been tested and where there were still further reports to be completed, including a family report, which might have better illuminated the issues and facilitated findings being made in the matter. 

8. Having regard to the above matters, I am satisfied that the proposed orders are in Y’s best interest.  They will ensure that Y is protected from the risk of harm, including the potential risks to her emotional well-being the continuation of these proceedings may bring. 

9. Accordingly, I will make orders in the terms of the minute of orders consented to by the mother and the father.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 14 August 2020

Associate: 

Date:  14 August 2020