Mullett and Landell

[2008] FamCA 684

FAMILY COURT OF AUSTRALIA

MULLETT & LANDELL [2008] FamCA 684

FAMILY LAW – CHILDREN – Final parenting – unopposed orders

APPLICANT: Ms Mullett

RESPONDENT: Mr Landell

FILE NUMBER: MLC 3824 of 2008

DATE DELIVERED: 18 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 18 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.J. Kent-Hughes

SOLICITOR FOR THE APPLICANT: Hayden Legro Lawyers

FOR THE RESPONDENT: No Appearance

Orders

IT IS ORDERED:

1. That the mother have sole parental responsibility for the children M born … June 2005 and J born … June 2007.

2. That the children live with the mother.

3. That the question of the respondent spending any time with either or both of the children be reserved with the effect that there is currently no order entitling him to spend time with the children or either of them.

4. That all outstanding Applications are dismissed and the proceedings are removed from the Active Pending Cases List.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3824 of 2008

MS MULLETT

Applicant

And

MR LANDELL

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter, which concerns the children M, a son born in June 2005 and J, a daughter born in June 2007, comes before me in the Magellan direction list.  Mr Kent-Hughes of counsel appears on behalf of the mother.  There is no appearance by or on behalf of the respondent father.  He was called at the door of the court and there was no response.

2. On the last occasion this matter was before the court, being 16 May 2008, the father did not appear either.  A letter had been received by the court that morning which read as follows:

   I will however convey to you my innocence of the allegations against me.  My children have been taken away from my family and myself.  I will love them forever.  I will comply with the court's direction until such time as I will be in a financial position to apply for access to my children.  [M] has been my son in every sense of the word except biological and I was to him his father, protector and provider for the past two and a half years.  [J] is my biological daughter and I am extremely saddened that I have been denied access to her, my only daughter.  Although this is not a legal document, I plead with you to take into account my position when you make your ruling.

3. Other matters in the letter advise that he would not be attending court on 16 May.  The address for the father in the letter was given as … Road in H.

4. On 16 May 2008, I adjourned the matter to today and requested that a report be prepared by the Department of Human Services.  That has been done. 

5. I also ordered that in the event that the father failed to participate in the proceedings today, the mother be at liberty to seek final orders be made in the terms of her application.  There is a notation to the order which reads as follows:

   In the event that the mother seeks and obtains leave to proceed with her application on a final basis on 18 July 2008, the court may proceed to make final orders without any input by the father or his views being heard.

6. It is the case today that the father does not participate.  I am satisfied that the father has notice of the proceedings and that final orders may be made in his absence.

7. Mr Kent-Hughes, counsel for the mother, makes an oral application to have the matter dealt with today on an unopposed and final basis. I grant that application and will proceed with the matter accordingly. 

8. The mother and the father were in a relationship for approximately two and a half years which commenced when the mother was approximately six months pregnant with M. 

9. These proceedings were commenced by the mother filing an application for final orders on 30 April 2008.  In that, she seeks final orders that she have sole parental responsibility for the children, the children live with her and the question of the father spending time with the children be reserved.  They are the orders that she seeks today on a final basis.  At the same time, she filed a notice of abuse in which it is alleged:

   1.In respect of the child, [M], it is alleged that [the father] during the period of co-habitation with [the mother] and [M], between March 2006 and March 2008 performed acts of anal penetration on [M], had the child perform oral sex acts on him, encouraged sexual play with the said child and masturbating in front of the child and ejaculating on the child’s torso.

   2.The specific date of such acts known to [the mother] is 16 March 2008.

10. The matter has been accepted into the Magellan list as a matter involving allegations of sexual abuse.  As indicated, I requested that a report be prepared by the Department of Human Services.  That has been done.  The report is dated 26 June 2008.  I have read the report.  It seems to be a well-reasoned report of some three pages. 

11. In summary, the Department of Human Services has assessed that there would be significant concerns for the safety and emotional wellbeing of M or J if they were to have any contact with the respondent, the father.  I accept that evidence which has not been challenged.

12. As with all parenting matters, I must regard the best interests of the children as the paramount consideration.  I take into account the objects of the legislation which are that children should have a meaningful relationship with each of their parents and have a right to know their parents and other significant people and that children be protected from harm or abuse.

13. In 2006, the legislation was amended to provide that parenting matters would be dealt with in a less adversarial manner, with the court taking active management of proceedings before it.  Nonetheless, proceedings do remain adversarial inasmuch as it is the responsibility of parties to the proceedings to put the material upon which they rely before the court for consideration.  In this case, the father has not made an application or put any material and he has in writing indicated that it is not his current intention to do so. The evidence of the mother is unchallenged.

14. In my assessment, it is in the best interests of the children to make the orders that are sought by the mother.  The proceedings ought to be concluded.  The children will no doubt benefit from certainty in their care arrangements.  In any event, the father does not seek an alternative result.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  15 August 2008