Patton and Barnes

[2011] FamCA 9

FAMILY COURT OF AUSTRALIA

PATTON & BARNES [2011] FamCA 9

FAMILY LAW – CHILDREN – interim orders – where the father has not indicated whether he intends to continue participating in the proceedings – orders that the matter be adjourned – previous orders that the children spend supervised time with the father be suspended

Family Law Act 1975 (Cth)

APPLICANT: MS PATTON

RESPONDENT: MR BARNES

FILE NUMBER: ADC 4198 of 2009

DATE DELIVERED: 14 JANUARY 2011

PLACE DELIVERED: ADELAIDE

PLACE HEARD: ADELAIDE

EX TEMPORE JUDGMENT OF: BURR J

HEARING DATE: 14 JANUARY 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: DENISE RIENIETS

SOLICITOR FOR THE APPLICANT: DENISE M RIENIETS & ASSOCIATES

COUNSEL FOR THE RESPONDENT: NOT APPLICABLE

SOLICITOR FOR THE RESPONDENT: NO APPEARANCE BY RESPONDENT

Orders

1. Further consideration of the proceedings is adjourned to 9.30 am on Thursday 3 March 2011 before the Honourable Justice Burr (Duty Judge).

2. In the event that the father wishes to participate in these proceedings and resist the orders sought by the mother he should attend either in person or by legal representative on the adjourned date UPON NOTING that in the event that he does not do so the Court is likely to make the Orders as sought by the mother by default.

AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT, THAT:-

1. The father’s time to be spent with the children Y born … October 2004 and N born … April 2008 pursuant to paragraph 3 of the Orders made on 21 December 2009 be suspended.

2. The mother’s solicitors serve a sealed copy of these Orders upon the father at the earliest opportunity.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4198  of 2009

MS PATTON

Applicant

And

MR BARNES

Respondent

REASONS FOR JUDGMENT

1. I have before me the Initiating Application filed by the mother in these proceedings on 10 December 2010.  In it, by way of both interim and final orders, she asks that the provisions of paragraph 3 of final orders made on 21 December 2009 enabling the father to spend time with the two children of the parties’ relationship, be discharged.  Those two children are Y born in October 2004 and who is hence 6 years of age and N born in April 2008 and who is hence approaching 3 years of age.  Those orders provide that the children live with the mother and that she have sole parental responsibility for them.  Those orders also provide that the father spend time with the children each alternate Saturday from 10.00 am until 4.00 pm provided that such time is supervised by one or both of his parents.

2. The proceedings earlier raised some issues of serious concern which were outlined in a Notice of Child Abuse filed by the mother on 23 October 2009.  The abuse was as to some very serious injuries suffered by N which have resulted in criminal proceedings being brought against both the father and the mother.  The criminal proceedings against the mother, as I understand it, are in the nature of failing to take proper and adequate precautions to ensure that N was not injured in circumstances where the mother had to have been aware that there was risk of harm and that she did not take all steps that she could reasonably have been expected to take in the circumstances to protect N.  The principal charges though as to the serious injuries suffered by N and the inflicting of those injuries upon her are directed at the father to these proceedings.

3. As a consequence of the charges against the mother, on 21 December 2010 I also imposed orders upon the mother to remain engaged with Families SA and to continue to maintain their assistance in relation to parenting issues and issues of protection of the children.  I also made an order with injunction restraining both parties from physically disciplining the children and from permitting any other person to do so.

4. The mother’s present application arises as a consequence of a number of concerns, but particularly that the time most recently spent by the father with the children has not been supervised by the paternal grandparents as ordered.  The mother’s affidavit filed on 10 December 2010 refers to occasions when Y disclosed to the mother, the mother’s sister and also to the mother’s Family Support Worker that there was certainly at least one occasion when the father’s time with Y was not supervised.  Y also complained of some soreness as a result of a “punching game” in which he was engaged with his father.  The mother deposed that the father has not seen the children since 2 October 2010 and has made no effort to do so.  He has certainly not initiated any proceedings in this Court to enforce the orders made on 21 December 2009 or seek any other orders.

5. The mother’s Initiating Application and supporting Affidavit both filed on 10 December 2010 were served on the father as is evidenced in the Affidavit of Service filed on 7 January 2011.  There is no appearance by the father today despite him having been called and quite clearly despite the fact that he has been served with the documents.  It may well be that he does not intend to take any further part in the proceedings and does not object to the orders being pursued by the mother.  Another possibility is that he is awaiting the outcome of the criminal proceedings before deciding what more he might do in relation to these proceedings and his two young children.

6. In all of the circumstances, I am satisfied that it will represent the best interests of the children for paragraph 3 of the Orders made on 21 December 2009 as to the father’s time to be spent with the children to be suspended.  I will offer to the father one further opportunity to put his position before the Court and hence I will adjourn the proceedings until a date beyond the hearing of the criminal proceedings.  In the event that he does not do so, default orders are likely to be made by the Court in his absence on the adjourned date.

I certify that the preceding six (6) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Burr delivered on 14 January 2011.

Associate: 

Date:  14 January 2011