Nolan and Klein

[2009] FamCA 415

FAMILY COURT OF AUSTRALIA

NOLAN & KLEIN [2009] FamCA 415

FAMILY LAW – CHILDREN – urgent application – welfare of the children – where the matter was recently transferred from the Family Court of Western Australia – where the father was permitted by that Court to relocate to South Australia with the children – where the mother has not returned the children to the father after spending time with them – where allegations have been made with respect to the capacity of both parties to care for the children and the possible risk of abuse of the children by persons with whom the father resided – where the mother seeks that the children live with her – where the father seeks the return of the children to his care – matter placed in Magellan list – Independent Children’s Lawyer appointed – children to be returned to the care of the father during the period of the adjournment – children to spend time with the mother

Family Law Act 1975 (Cth) s 60CC

Goode and Goode (2006) FLC 93-286

APPLICANT: Ms Nolan

RESPONDENT: Mr Klein

FILE NUMBER: ADC 1674 of 2009

DATE DELIVERED: 15 May 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 15 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M.A. Boehm

SOLICITOR FOR THE APPLICANT: B.C. O'Leary and Associates

COUNSEL FOR THE RESPONDENT: Ms V.M. West

SOLICITOR FOR THE RESPONDENT: Vicki Lehmann and Associates

Orders

1. During the period of the adjournment the children P born on the … September 2000 and E born on the … August 2001 live with the father.

2. The father is restrained and an injunction is granted restraining him from allowing either of the children to come into the company of Mr O otherwise known as JD or Mr CD.

3. It is also a condition that the father reside at his current address which is the property at S and that the children continue to attend the S Primary School.

4. I direct that the mother deliver up the children P and E to the father today by the mother delivering them to inside the H Police Station at 6.00 pm today.

5. During the period of the adjournment the mother is to spend time with the children each alternate weekend from the conclusion of school on the Friday to 6.00 pm Sunday with the mother to collect the children from the S Primary School and return the children to the father inside the H Police Station at 6.00 pm on Sunday with the first period of time spent commencing on Friday 22 May 2009.

6. Pursuant to Section 68L of the Family Law Act 1975 as amended THAT the children P born on the … September 2000 and E born on the … August 2001 be independently represented and that such representation be arranged by the Legal Service Commission of South Australia AND that to expedite the appointment of the Independent Children’s Lawyer within seven (7) days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party.

7. Pursuant to Section 91B of the Family Law Act 1975 as amended the Minister for the Department for Families and Communities – Families SA be invited to intervene in these proceedings.

8. The Department for Families and Communities – Families SA is requested to prepare a report as to the allegations of both the father and the mother contained in the affidavits filed by the parties in particular in relation to the allegations of neglect, drug abuse and risk to the children of sexual abuse and the general circumstances of the children and that such report be available to the Court by 4.00 pm on the 12 June 2009.

9. The matter is adjourned for further consideration to 10.00 am on Tuesday 23 June 2009 before the Magellan Judge.

IT IS FURTHER ORDERED IN CHAMBERS

1. The Court requests the Minister to attend on the adjourned date and in the event that the Minister declines to intervene pursuant to Section 91B of the Family Law Act 1975 authorise a representative of the Minister to attend on the adjourned date to indicate to the Court the reason why.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1674 of 2009

MS NOLAN

Applicant

And

MR KLEIN

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which comes before me today as an urgent duty list matter.  It concerns the welfare of two infant children of the parties:  P, who was born in September 2000, and E, who was born in August 2001.

2. These proceedings commenced in Western Australia and were recently transferred from the Family Court of Western Australia, Perth, to the Adelaide registry.  The Court has before it some 10 documents in relation to the Family Court of Western Australia proceedings and subsequent affidavit and applications received once the matter was transferred to Adelaide.

3. The history of the poor relationship between the parents is set out in the affidavits of both parties, which have been filed both in the Western Australian Family Court and in this Court.  By way of summary, the parties have been living separately and apart since 2005 and for most of that time the children have been residing with the father or with the father and the maternal grandparents. 

4. The parties originally formed a relationship in South Australia but later the father and the children were residing in Western Australia.

5. The proceedings that are currently before the Court are the proceedings commenced by the mother in December 2008, when she sought final and interim orders concerning the children and filed an affidavit of some 17 pages, setting out her allegations concerning the history of the relationship with the father and the care of the children.  In that affidavit the mother raises serious concerns about the capacity of the father to be an appropriate caregiver for the children, raising issues of serious violence and inappropriate behaviour, drug abuse and neglect of the children.

6. In January 2009, a Deputy Registrar of the Magistrates Court in Perth, made orders by consent, that until further order the mother spend time with the children in Adelaide.  Arrangements were made to have the parties undergo drug analysis testing, and the appointment of an Independent Children’s Lawyer.  That consent order provided for the children to remain residing with the father.  The matter was transferred to the West Australian Family Court.

7. On 13 February 2009 the matter came before her Honour Justice Penny in the Family Court of Western Australia, when orders were made, upon the mother's application, that provided for the father to be able to relocate to South Australia with the children, P and E, and that the mother was to spend time with the children from Tuesday, 14 April 2009 until 10 am on Friday, 24 April 2009, with handover to take place at the H Police Station.  There were other ancillary orders made.

8. The father relocated with the children to South Australia and has been residing here since.  The children were delivered up to the mother for the period of time to be spent with her on 14 April 2009 but she has not returned the children to the father as provided for in the order of 24 April 2009.  She has, however, filed an application in a case seeking orders that the children remain residing with her.  The father has responded by seeking an order that they be immediately delivered up.

9. In the mother's affidavit material filed in support of the more recent application in a case, the mother again makes serious allegations concerning the father's capacity to care for the children and raises serious allegations about possible risk of sexual abuse by persons with whom the father was residing in the S area. 

10. In particular, she makes allegations concerning the suitability of those people to be in the presence of the children, alleging that they engage in sexual intercourse with underage children and providing illicit drugs to underage children.  She made serious allegations concerning the abuse of a 13-year-old pregnant girl when in the company of the two gentlemen by the surname of D.

11. The father has now filed a response and an affidavit in response denying the allegations made by the mother.  He has also filed an affidavit of Mr D denying the allegations and supporting the father. 

12. In the father's affidavit he takes issue with the history as asserted by the mother in her affidavit and denies the allegations of threats of abuse or any inappropriate behaviour or failure to care for the children.  He specifically denies the issues concerning the neglect of the children asserted by the mother. 

13. The father annexes to his affidavit material which includes a short note from the S Primary School, where the father enrolled the children when they came to South Australia.  The short note refers to the children attending the S Primary School from week 11 of term 1.  It says that the children have presented as well cared for and eager to attend school.  Their attendance during this period has been “100 per cent”.  That is of course only a very short period prior to the time which the mother was to spend with the children.

14. Also annexed to the affidavit is a copy of what purports to be a Residential Tenancy Agreement for a period of 12 months, for a two-bedroom unit at S, referred to as "with furniture".  The father asserts in his affidavit that he is now no longer residing with the D family but is now occupying his own unit.  He says his accommodation with the D family was only temporary whilst he made suitable arrangements.

15. Also annexed to the affidavit is a report from the B Primary School and school reports for the children at that school, together with a letter from a Ms A, wishing the children and the father all the best.

16. I accept that those documents have to be read in the context that the B Primary School was the school attended by the children whilst they were in the care of the father and the mother's parents, in Western Australia, and that therefore their attendance there may not be entirely due to the assistance given to the children by the father.

17. This is an interim matter, but nonetheless I am bound by the decision of the Full Court in Goode and Goode (2006) FLC 93-286 and must give careful consideration to the provisions of Part VII of the Family Law Act 1975 (Cth) which requires that I not only give consideration to whether there should be equal parental responsibility for the children but also, significantly, to the provisions of section 60CC, when determining what is in the best interests of these children.

18. The affidavits make serious allegations about the other party's capacity to care for the children and serious allegations about the possible risk to the children's safety if they are in the care of either parent.  Those serious allegations are denied.  It is extremely difficult for the Court to determine the full truth of the matter.

19. This is a superior Court of record and not a government department, so the Court does not have the ability to investigate the allegations or investigate the arrangements made concerning the children and their relationships with each of the parents and other significant persons.

20. The main factor is to ensure that any decision is made in the best interests of the children and that they are protected whilst they are able to maintain a meaningful relationship with each of the children's parents.

21. One of the significant factors in section 60CC is the disruption to the children of arrangements which have been in existence for some time. On the mother's affidavit material she admits that she has not been the primary caregiver for the children for a considerable period of time (since around 2005/2006). She has been endeavouring to spend time with them at various times but has not been successful.

22. I accept that the Court order of January 2009 was made by consent and the order of Justice Penny on 13 February 2009 was made on the basis that the mother's earlier affidavit was already before the Court.  The mother was aware that the arrangement was for the children to spend time with her from 14 April to 24 April 2009. 

23. I also take into account that now the father has his own separate accommodation it will be possible to ensure the protection of the children from Mr JD and Mr CD by ensuring that, during the period of the adjournment and whilst an investigation takes place, the father be restrained from bringing either of the children into the company of either of those men.  That would then enable the children to return to the care of the parent with whom they have primarily resided in the past and at the same time provide the mother with the reassurance that they would not be at risk to that extent.

24. I propose therefore to place this matter in the Magellan list, to enable the urgent appointment of an Independent Children's Lawyer for the children and for the Families SA Department to be made aware of the serious allegations about the risk for the children and neglect of the children made by each of the parties.  The matter will return to the Court so that further consideration can be given to what orders would be in the best interests of the children.

25. Both parties are offering the other party orders which would provide for them to have alternate weekends and a considerable part of the school holidays with the other and that there be a handover either at the children's school or at the H Police Station. 

26. In view of the allegations made by the parties I do not consider it appropriate for there to be a handover of the children which would risk the parties coming face to face with each other in circumstances which would not provide appropriate protection for the children.

27. I have weighed carefully all of the factors in section 60CC and the history of this matter. During the period of the adjournment, I consider it to be in the best interests of the children that they be returned to the care of the father, that they live with him and that there be an injunction restraining the father from permitting either of the children to be in the company of either JD, otherwise known as Mr O, and CD.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  20 May 2009