Patton and Barnes (No 2)

[2011] FamCA 158

FAMILY COURT OF AUSTRALIA

PATTON & BARNES (NO 2) [2011] FamCA 158

FAMILY LAW - CHILDREN – final orders – where the mother seeks that previous orders providing that the father spend supervised time with the children be discharged – where there are serious allegations of physical abuse against the father – where the father has failed to participate in proceedings – where the Court is satisfied that the father was fully aware of the proceedings – best interests – previous orders providing for the father to spend time with the children be discharged – orders that the children live with the mother and she have sole parental responsibility for them

Family Law Act 1975 (Cth)

APPLICANT: Ms Patton

RESPONDENT: Mr Barnes

FILE NUMBER: ADC 4198 of 2009

DATE DELIVERED: 3 March 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 3 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS Rieniets

SOLICITOR FOR THE APPLICANT: Denise Rienets & Associates

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. The Orders made on 21 December 2009 be discharged.

2. The children Y born … October 2004 and N born … April 2008 live with the mother who shall have sole parental responsibility for them.

3. The mother continue to engage with Families SA, respond to the requests and demands of Families SA and engage with any other services or agencies as may be recommended and requested by Families SA.

4. Both parties are restrained and an injunction is hereby granted restraining each of them from physically disciplining the said children or permitting any other person to do so.

5. All applications are otherwise dismissed and removed from the pending list.

IT IS NOTED that publication of this judgment under the pseudonym Patton & Barnes (No 2) 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 today a continuing hearing in relation to the Initiating Application filed by the mother on 10 December 2010.  It relates to two children of her relationship with the respondent father in these proceedings, namely Y who was born in October 2004 and who is therefore 6 years of age and N who was born in April 2008 and who therefore will shortly be 3 years of age.

2. There were previous final orders made on 21 December 2009 which enabled the father to spend supervised time with the children.  The mother’s application now is that that order be discharged.

3. The parties to these proceedings commenced cohabitation in 2003 and separated some 5 years later on 11 December 2008.  The mother was very young at the time when she fell pregnant with the child Y, being some 16 years of age.  The father was some 20 years of age.  The mother makes then some horrendous allegations of physical abuse of the child N by the father and the particular detail of same is contained in her affidavit filed on 23 October 2009.  I will not recite in detail in these reasons all of the allegations made but they are of a very serious nature.  The mother took N to a hospital and she was then transferred to the Women’s & Children’s Hospital.  It was very evident that N had suffered a head injury and the South Australian Police became involved.  The outcome of the medical examinations by the first hospital and the Women’s & Children’s Hospital was alarming indeed in that it was identified that N had suffered 2 bilateral skull fractures.  Also identified were multiple rib breaks that were some two weeks older than the skull fractures. 

4. As a consequence, Families SA became involved and on 5 September 2008 they made application to the Youth Court to place both children in the care of the Minister for a period of 42 days.  Subsequently, on 2 October 2008, Families SA sought an order from the Youth Court that the children be placed under the guardianship of the Minister for a period of 12 months.  Both parents were then charged with various criminal offences, the mother in relation to her inaction in protecting the children from abuse.  The more serious charges were those laid against the father.  Contact with the mother’s family though was maintained by the children remaining in the care of the maternal grandmother until they were returned to the mother’s full time care on 1 October 2009.

5. I am satisfied, from the evidence available to the Court, that the father has been guilty of the most horrific violence towards the children, but particularly N, and I am satisfied from the information received by the Court today that family violence, characterised by emotional, social and physical violence, was practised by the father against the mother.

6. The father did participate to a degree in the proceedings for a short time but of more recent times has failed to provide the Court with any information as to the manner in which he would like the proceedings resolved.  I provided some brief detailed reasons in relation to his non-pursuit of his application before the Court in my reasons published on 14 January 2011.  In my view, it is not necessary to repeat those reasons but the matters contained therein are clearly relevant to the decision that I make today.

7. On the last occasion, being 14 January 2011, I adjourned the matter to today’s date and indicated in my orders that if the father did not attend at Court today, either personally or through a legal representative, then the Court was likely to make final orders in his absence disposing of the proceedings.  He has not attended today.  On the Court file is an Affidavit of Service filed on 25 January 2011 in which it is clear that the father was served personally with those orders that I made on the last occasion.  Thus, I am satisfied that he has had full notice and has full knowledge of these proceedings and for whatever reason has chosen to take no further active part in them.  Thus, in my view, it is appropriate that the matter be finalised today.  It clearly would represent the best interests of the children if matters were resolved and their status and primary caregiver was known and confirmed by orders of this Court.

I certify that the preceding seven (7) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 3 March 2011.

Associate: 

Date: