PEDLAR & PEDLAR

[2013] FamCA 69

FAMILY COURT OF AUSTRALIA

PEDLAR & PEDLAR [2013] FamCA 69

FAMILY LAW - CHILDREN – final orders – with whom a child lives – best interests – orders for the children to live with the father.

Family Law Act 1975 (Cth)

APPLICANT: Ms Pedlar

RESPONDENT: Mr Pedlar

INDEPENDENT CHILDREN’S LAWYER: Nelson & Co

FILE NUMBER: ADC 5939 of 2007

DATE DELIVERED: 1 February 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 1 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: Denise Rieniets & Associates

COUNSEL FOR THE RESPONDENT: Ms Knighton

SOLICITOR FOR THE RESPONDENT: North East Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Nelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Nelson & Co

Orders

1. Until further order I make orders in terms of the minutes this day signed by me.

1. Remove all matters from the pending list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pedlar & Pedlar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5939 of 2007

Ms Pedlar

Applicant

And

Mr Pedlar

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter has been before the Federal Magistrates Court and the Family Court on and off over a considerable period of time.  It originally concerned the welfare of the three children of the parties including the eldest child, C.  I am not now being asked to make any orders in relation to C, save and except that all previous orders be discharged. 

2. The matter comes before the Court today following upon the mother discontinuing all proceedings concerning the children. 

3. I am being asked to make final orders by the consent of the father and the Independent Children’s Lawyer in relation to the two younger children, B, who was born in May 1999, and T, who was born in June 2001.  They are obviously of an age where their views would be significant factors, but not a determining factor.

4. As is quite clear, the Family Law Act 1975 (Cth) (“the Act”) requires the Court to consider that the orders be in the best interests of the children. What I do have to assist me (apart from the affidavits filed by the parties setting out a clear dispute as to the suitability of either of the parents to provide appropriate care for the children) is the Family Report prepared on 29 October 2012. That report was prepared following interviews being conducted with the parents and the children and observations of the parents with the children.

5. The report is detailed and sets out the serious concerns raised by both of the parties about the other party’s suitability to care for the children.  In particular, paragraphs 55 and continued thereafter is headed “Evaluation” and refers to the significant concerns about the safety and wellbeing of the children, and the fact that Families SA had been involved with numerous Child Protection Notifications.  It says in paragraph 55:

   The information obtained for this report indicates that the concerns expressed by each of the parents about the parenting capacity of the other may have substantial validity.

6. It then goes on to record the serious allegations made in relation to the eldest child, C. 

7. The report says that Families SA have substantiated the allegations that C was subjected to sexual abuse by Mr Pedlar.  Mr Pedlar has denied those allegations.  Ms Pedlar has used those allegations as the basis for her application for T and B to live with her. 

8. The information obtained directly for the report did not provide support for the view that T and B may be at risk of sexual abuse from Mr Pedlar, nor did it provide support for the view that they are not at risk from abuse from Mr Pedlar. 

9. It then continues to discuss the various relevant matters and concludes by making recommendations that the eldest child, C, continue to live with the mother and there be no orders made in relation to her spending time with the father.

10. It continues to recommend that T and B continue to live with the father and spend time with the mother on alternate Sundays between 9.00 am and 5.00 pm and there be some telephone contact. 

11. That report of the Family Consultant is dated 29 October 2012.  Since that report was prepared there has been limited further information provided to the Court about the current circumstances of the children, but I understand from the submissions that are made today that it is still the case that the eldest child lives with the mother and has no contact with the father.  The younger children, T and B, continue to reside with the father and have had some limited but sporadic contact with the mother. 

12. The Act requires that orders that are made are made on the basis that they are in the best interest of the children.  I have expressed serious concern in open Court about the untested allegations made by the child, C, that the father was a person who had sexually abused her over a number of years. 

13. If that were found to be correct, he would obviously not be a person who should be considered suitable to have sole responsibility for the care of any children, whether they are girls or boys.  If that were found not to be the case, then considerations would seriously be raised about the basis upon which the child, C, made those allegations and the reason and involvement of either of the parents in the background to those allegations. 

14. The Court, however, is now faced with a situation in which the mother does not want to participate in these proceedings.  Families SA and the Minister in charge of Families SA have been aware of these proceedings and have chosen to take no part in these proceedings, thus leaving the children, B and T, with very little option other than the orders which are proposed by the Independent Children’s Lawyer, namely that they live with the father, that he have sole parental responsibility and that the mother have time as agreed by the mother and father.

15. The orders that I am being asked to make are ones that must be seen to be made in the context of the background of this matter and the difficulty the Court has in finding that there is any other option.  It is in the best interests of the children, B and T, that the proceedings be brought to an end and the families given an opportunity to go on with their lives without the intervention of legal proceedings. 

16. Taking all of the matters into account, therefore, and notwithstanding my serious concern about the Department’s failure to provide the Court with any support or explanation for what appears to be their situation that the children, B and T, remain with the father, I propose to make the orders provided by the Independent Children’s Lawyer.

17. I note that that removes all matters from the pending list.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 1 February 2013.

Associate: 

Date:  15 February 2013