LEGH & RINALDS

[2019] FamCA 943

FAMILY COURT OF AUSTRALIA

LEGH & RINALDS [2019] FamCA 943

FAMILY LAW – PRACTICE AND PROCEDURE – Application – Dismissed – Service.

FAMILY LAW – INJUNCTIONS – Ex parte and Interlocutory – Personal protection.

APPLICANT:

Ms Legh

RESPONDENT: Ms Rinalds

INDEPENDENT CHILDREN’S LAWYER: Ms Orczykowski

FILE NUMBER: CAC 348 of 2019

DATE DELIVERED: 2 December 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 2 December 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Jeanine Lloyd & Associates

SOLICITOR FOR THE RESPONDENT: Self-Representing - Assisted by Ms Rowe, Duty Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Boland Legal Family Lawyers

Orders

1. The Application in a Case filed by Ms Rinalds on 26 November 2019 is dismissed.

2. It is directed that in service of process upon Mr C the address of Ms Legh is to be redacted, as is the address of and the address for Mr H is to be redacted.

3. On an ex parte basis, pending the further listing of the matter before the Court, it is ordered that an injunction for the personal protection of Ms Rinalds is granted against Mr C in the following terms:

   (a)Mr C is not to assault, harass, intimidate or stalk Ms Rinalds;

   (b)Mr C is not to attend at or within 100m of Ms Rinalds's address at D Street, Suburb B in the Australian Capital Territory; 

   (c)Mr C is not to contact Ms Rinalds; and

   (d)Mr C is not to approach within 100m of Ms Rinalds.

4. This injunction is an injunction for the personal protection of Ms Rinalds.

IT IS FURTHER ORDERED THAT

1. Ms Legh take steps to serve Mr C with process in this matter.

2. The matter is relisted for further directions on 10 March 2020 at 10am.

3. The matter may be relisted at short notice at the application of Ms Legh, Ms Rinalds, the Independent Children's Lawyer or Mr C. 

4. The solicitors for Ms Legh are to be in a position to advise the Court on the next occasions as to the steps taken to serve Mr C with process and provide evidence supportive of any submissions made as to the steps taken to serve him. 

IT IS NOTED THAT

1. The Director-General has appeared today at the invitation of the Court but declined to join or participate in the proceedings on the basis that the Director-General is satisfied with the arrangements for X living with Ms Legh.

2. The Director-General has indicated that if there is a change in the primary residence away from Ms Legh to Ms Rinalds than the Director-General will reconsider becoming involved in the proceedings.

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 Legh & Rinalds 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: CAC 348 of 2019

Ms Legh

Applicant

And

Ms Rinalds

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me initially by virtue of an Application for Consent Orders that was completed by Ms Legh, who is raising the child the subject of proceedings, X.  The child, X comes to live with Ms Legh by the consent of X's mother, Ms Rinalds, who is the other party named in the proceedings. 

2. Ms Rinalds has indicated by her execution of consent orders and also through the Duty Lawyer, Ms Rowe who appears for her today, that she consents to orders that would provide for X to live with Ms Legh, for Ms Legh to have sole parental responsibility for X and for Ms Rinalds to spend time with X as is agreed between herself and Ms Legh. 

3. That Application for Consent Orders does not involve the father of X.  A question has arisen as to who the father of X might be.  Ms Legh has filed an Application in a Case on 26 November 2019 seeking to dispense with any requirement for the service of X's father a process in this matter.  In the material that she has provided she has nominated three potential fathers being Mr C, Mr F and Mr G.  She has nominated these persons on the basis of information that had previously been provided to her by Ms Rinalds. 

4. Ms Rinalds has attended Court today and given oral evidence seeking to identify who the father of X might be.  Whilst she accepts that initially she had some uncertainty as to who the father might be, having nominated a Mr F, a person with whom she was previously in a relationship but with whom she now recognises the relationship had ended months before the conception of X, and although she had also nominated Mr G, who was present for the proceedings today, but now realises that her relationship with Mr G did not commence until after she was pregnant with X, has nominated Mr C, a person with whom she was in a relationship for some period of time, being a relationship that she says was characterised by violence.  She described to Ms Rinalds matters which Ms Rinalds has included in her affidavit material and which in general terms have been accepted by Ms Rinalds today being that she was sexually assaulted by Mr C, an event which resulted in the conception of X.  On that basis there is currently evidence before the Court that is suggestive that Mr C is the father of X.  As noted previously, he has not been served process in this matter.

5. An Application was made to dispense with the service of process on the basis of the matters that I have already articulated but also noting that Mr C, if he is the father, is unaware that he is the father of X and has had no involvement in X's life.  At present the evidence before me is suggestive that X is in stable care, being the loving care of Ms Legh, a matter which Ms Rinalds appears keen to keep in place for X's benefit.

6. It was submitted both for Ms Legh and Ms Rinalds, and supported by the Independent Children's Lawyer, that it was not in X's interest to serve Mr C with process in this matter.  Given the current stability of X's position and a disinclination to disrupt those care arrangements and given the matters that have been raised by Ms Rinalds it is understandable why such a position might be adopted by those legal representatives.  However, that is the position that has been adopted in the context of ex parte proceedings, Mr C being unaware both of the proceedings and of the allegations that have been levelled against him.  To proceed to finality with a disposal of the issues without placing him on notice is to deprive him of the fundamental requirements of procedural fairness.  To proceed on a current basis would be a denial of natural justice to Mr C and mean that no real consideration could be given to the objects and purposes of Part VII of the Family Law Act 1975 insofar as they reflect on relationship between X and X’s father, if that is who Mr C is.  On that basis and to ensure that procedural fairness is accorded to the father of X I dismissed the Application to dispense with service upon the father.

7. There are other matters that arise out of these circumstances.  A present the parties are unaware of how Mr C might be served.  The best information that we have to identify Mr C is what has been provided by Ms Rinalds.

8. Ms Rinalds has indicated that she believes that Mr C lives in Suburb J in the Australian Capital Territory and is able to advise that his birthday is in February, although she is not in a position to advise which year that might be.  She, through Ms Rowe, has also advised the Court that Mr C is aware of her address so that if he is served with process in this matter she is not protected by anonymity or by Mr C not knowing where it is that she lives.  Given what has been said about Mr C particularly by Ms Rinalds and by the affidavit material prepared by Ms Legh there is some reason for Ms Legh to have concern but good reason for Ms Rinalds to be concerned for her well-being.

9. While Ms Legh sought protection of injunctive relief pursuant to s 68B of the Family Law Act 1975 at present the evidence does not rise to a high enough level to accord her the protection of an injunction.  It seems to me that at present her position will be adequately protected by a direction that any documents to be served upon Mr C be redacted as to her and X's addresses as there is also some information as to the place of residence of Ms Legh's partner who acts as a stepfather towards X.

10. An oral application was made for a s 68B order directed to the protection of Ms Rinalds. Section 68B provides power to the Court to issue injunctions that the personal protection of the parent of a child where the Court considers it appropriate for the welfare of the child. At present X is in a position of apparently stable and loving care under the hands of Ms Legh. That is a position that is brought about by the ongoing consent and support for that position maintained by Ms Rinalds. Ms Rinalds, through Ms Legh, is also able to maintain a relationship with X. The preservation of a stable circumstance for X and the ongoing relationship with Ms Rinalds is predicated to some extent upon Ms Rinalds's well-being. The material that has been filed by the parties is indicative that Ms Rinalds has unfortunately experienced some periods of instability. Preserving Ms Rinalds's well-being is very much in X's interests and sufficient to justify the making of an injunctive order pursuant to s 68B.

11. Although on an ex parte basis, matters have been raised to justify the making of an order on a continuing ex parte basis until the return of the matter or until the matter is re-listed at the instigation of any of the current parties or the instigation of Mr C, should he be served.  What has been sought is orders that will protect Ms Rinalds from being assaulted, harassed, intimidated or stalked by Mr C, to prevent Mr C from attending at her address and to prevent him from contacting her or approaching within 100m of her.  The matters which go to the support of the making of such an order include the recitation in Ms Legh's material of the account given to her by Ms Rinalds of the sexual assault perpetrated upon her by Mr C at a time when she says that Mr C was a drug user.  What has been described there, and what has been supported by Ms Rinalds in her evidence, is an extreme act of violence being an act of sexual assault.  That extreme level of violence, particularly when accompanied by the instability which may be occasioned by drug abuse, is sufficient to call for the protection of Ms Rinalds by means of an injunction.  It is particularly so where at present the evidence is suggestive that Mr C is unaware that he is the father and if he is to be served with process indicating that he will be joined to these Court proceedings and that he is the father of X, circumstances may arise which occasion further danger to Ms Rinalds beyond the danger that she says she has previously endured at the hands of Mr C.  As I have indicated that is sufficient to provide her with injunctive relief. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 2 December 2019.

Associate:

Date:  5 December 2019