Nolan and Klein (No 2)

[2009] FamCA 1227

FAMILY COURT OF AUSTRALIA

NOLAN & KLEIN (NO. 2) [2009] FamCA 1227

FAMILY LAW – CHILDREN – Magellan – with whom a child lives and spends time - where the mother has made allegations of possible sexual abuse and neglect of the children against the father – where the Department has chosen not to intervene in the proceedings – where the children have been living with the father and spending time with the mother – where the mother did not attend – where the mother was advised if she did not attend the matter may be dealt with in her absence – where the father seeks that the matter be finalised – orders for the children to live with the father and for him to have sole parental responsibility – children to spend time with the mother as agreed

Family Law Act 1975 (Cth)

APPLICANT: Ms Nolan

RESPONDENT: Mr Klein

INDEPENDENT CHILDREN’S LAWYER: Robert Winter

FILE NUMBER: ADC 1674 of 2009

DATE DELIVERED: 23 July 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 23 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr Childs

SOLICITOR FOR THE RESPONDENT: Vicki Lehmann & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Winter

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Robert Winter LSC

Orders

1. That the Application for Final Orders filed by the mother on 4 May 2009 be dismissed.

2. That the children P born … September 2000 and E born … August 2001 live with the father and the father have sole parental responsibility for the said children.

3. That the said children spend such time with the mother as may be agreed between the parties.

4. That all applications and responses be dismissed and removed from the active pending cases list.

5. That pursuant to Section 62B and Section 65DA(2) 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 are set out in the attached Fact Sheet.

6. That the order appointing the Independent Children’s Lawyer made on 15 May 2009 be discharged.

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

1. This is a troubling matter, in that in the initial application filed by the mother she has made very serious allegations raising issues of possible sexual abuse and neglect of the children on the part of the father.  There were also allegations that the father and his associates were involved in the sexual abuse of underage girls.  These allegations are denied by the father and also, as I understand it, there are affidavits from the named associates also denying the allegations.

2. The two children, the subject of these proceedings, have been living with the father, and the mother brought the proceedings seeking a change in that regard, and seeking that the children live with her.

3. The matter, appropriately, was placed in the Magellan Project in this Court. There was a Notice of Abuse filed, and the Department were advised. On 15 May 2009 Dawe J made an order pursuant to s 91B of the Family Law Act 1975, inviting the Minister for the Department for Family Communities, Families SA, to intervene in the proceedings.  And there was the usual order made, also, on that day by her Honour for the provision of a report from Families SA.

4. That report was duly received, and is dated 21 May 2009.  In that short report, Families SA advised that there had been four reported contacts with this family since October 2003, they being in October 2003, June 2004, May 2005, and then the last contact on 31 March 2009.  I note that the contact on 11 October was a contact by Ms Nolan, the mother, presumably stating that she believed that the children were not safe in their father’s care.  She was seeking assistance to leave, what she described as a domestic violence situation, and accommodation was found for her through a domestic violence service. 

5. The June 2004 contact was again the mother requesting assistance for herself and the two children.  There were allegations of a domestic violence-type nature, and the mother did not want to return to that relationship.  The mother and the two children were provided with motel accommodation for a couple of nights.  Then the 10 May 2005 contact was again the mother approaching Families SA for some financial assistance. 

6. With the last contact, 31 March 2009, that was a contact by the police seeking assistance for the father and the two children.  It was reported that they were travelling to Adelaide on the train when the father was caught smoking in a shower cubicle.  The father was asked to leave the train at Port Augusta. The father only had $7. Families SA provided one night’s accommodation.

7. As is rightly pointed out in this letter, none of these contacts were child protection notifications, but it is reported that there may have been notifications to child welfare services in Western Australia.  Of course, there is no report from any child welfare service in Western Australia. 

8. In any event, her Honour’s order was made on 15 May, inviting the Department to intervene.  Her Honour also put in place orders on 23 June 2009 during the period of the adjournment which, by way of injunction, restrained the father from allowing either of the children to come into the company of a Mr O and requiring the father to reside at his then current address. On that day her Honour made orders providing for the children to live with the father, and for the children to spend time with the mother.

9. The mother was represented on that day, 15 May 2009, by counsel, and she was present, as was the father.  However, on 23 June 2009 there was no appearance by or on behalf of the mother.  Ms Olsson appeared representing the Minister, and advised that the Minister was disinclined to intervene in the proceedings on the basis that any action by the Department to protect the children seemed unnecessary at that time.

10. As I say, the mother did not appear.  Burr J has noted, though, that on that very morning the court received a telephone call from the mother’s solicitor indicating she was no longer representing the mother.  His Honour adjourned the matter to today and excused the representative of the Minister from attending.  His Honour then ordered that the mother attend on the adjourned date or arrange for legal representation.  His Honour noted that in the event that the mother failed to attend or arrange attendance of a legal representative, the court was likely to dismiss her application and discharge any orders in her favour, providing for the children to spend time with her. 

11. In paragraph 4 his Honour went on and provided that if the mother intends to prosecute her application before the Court then she had to file and serve an affidavit by 17 July 2009 detailing her reasons for non-attendance at that hearing on that day, and providing relevant information and detail as to the children’s schooling.  His Honour then made further orders during the period of the adjournment which were a repeat of the orders made by Dawe J.  Finally, his Honour, in the absence of the mother, discharged paragraph 5 of the orders made on 15 May 2009, which was the paragraph providing for the children to spend time with the mother.

12. Today the matter has been called on again.  There is no appearance by or on behalf of the mother.  His Honour’s order of 3 June 2009 was sent out to the mother’s address and there has been a letter sent to the mother by the father’s solicitors.  Neither of those documents have been returned indicating for example that the mother is no longer at that address.  I also note that the mother’s solicitor has now filed a Notice of Ceasing to Act, which sets out the last known residential address of the mother as the address that the Court has, and the father’s solicitors have.

13. Now, in those circumstances and with that background, Mr Childs, for the father, asked me to finalise this matter today by making orders in terms of paragraph 1 of his client’s response, filed on 22 May 2009.  The order sought is that the children live with the father and that he have sole parental responsibility for the children.

14. I am told by Mr Childs that the children have been spending some time with the mother, and as recently as the last school holidays.  Thus Mr Childs has indicated that his client would not oppose a final order to the effect that the children spend such time with the mother as may be agreed between the parties.

15. Now, why this is a difficult matter is because of the seriousness of the allegations initially made by the mother, but the mother has not seen fit to prosecute that application and to continue to seek those orders.  She did not attend on the last occasion, and nor today.  My usual practice in circumstances involving children where a party does not appear is to set the matter down for an undefended hearing.  I have been urged not to do that in this case, primarily because of the history of the matter, the fact that the mother was well and truly on notice from his Honour that if she did not attend, and if she did not do anything about this case, his Honour was likely to make the orders sought.  And that has been reiterated in correspondence sent by the father’s solicitor to the mother.

16. Mr Winter is the Independent Children’s Lawyer and he has indicated that he would not oppose final orders being made in the terms that I have just indicated.  He is also in a difficult position with the mother not being here and not prosecuting the application, and not pursuing the allegations that she makes.  He too is not in any better position than I am to make any assessment of the truth or otherwise of those allegations, but he points, of course, to the fact that the Department have chosen not to intervene.  He has also referred me to the ex tempore reasons for judgment delivered by Dawe J on 15 May 2009, when her Honour made the orders that I have just referred to.  Her Honour, on the evidence that was before her Honour at that time, determined that it was in the best interests of the children to be in the care of their father, and for certain injunctions to be put in place.

17. Now, of course, at that time her Honour was not looking at this matter on any final basis as I am now being asked to do.  Perhaps her Honour took comfort making those orders given they were interim orders, and that, at that point, at least, it was expected that the issues that were being raised would be the subject of evidence at a final hearing and a properly informed decision could be made.  Nevertheless, it is significant, and Mr Winter has suggested so, and I agree with him, that that was her Honour’s assessment in the matter at that time.  Nothing further really has been filed by either party in relation to that matter, and Mr Winter rhetorically asks what purpose would be served by setting the matter down for an undefended hearing when all that would be before the Court would be the current information on file.  The Department would not be having any further involvement in the matter, and thus I would have no better information, at that time, than I have now, in terms of what might be in the best interests of these children.

18. I am swayed by that submission, but perhaps I should mention before I make the orders that Mr Childs was seeking a discharge of the injunction that Dawe J made, and that Burr J continued.  However, that injunction expires today in any event, and the mother is not here to pursue any application.  Thus I do not need to be concerned about that injunction.

I certify that the preceding 18 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 23 July 2009.

Associate