Plunkett and Rowling

[2011] FMCAfam 332

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PLUNKETT & ROWLING [2011] FMCAfam 332

FAMILY LAW – Child aged 4 – allegations of sexual abuse – matter transferred to Family Court.

Applicant: MR PLUNKETT

Respondent: MS ROWLING

File Number: ADC 1820 of 2008

Judgment of: Brown FM

Hearing date: 1 April 2011

Delivered at: Adelaide

Delivered on: 1 April 2011

REPRESENTATION

Counsel for the Applicant: No Appearance

Solicitors for the Applicant: No Appearance

Counsel for the Respondent: Mr Hemsley

Solicitors for the Respondent: Christopher Ganzis & Co

ORDERS

1. These contravention application filed 11 February 2011 and the application filed on 17 March 2011 be transferred to the Adelaide Registry of the Family Court of Australia in the Magellan List and listed for a directions hearing on a date and time to be advised to the parties.

2. Pursuant to section 91B of the Family Law Act 1975, Department for Families & Communities (Families SA) is invited to intervene in these proceedings.

3. Pursuant to section 69ZW of the Family Law Act 1975, Families SA are ordered to provide to the court as soon as possible the following documents:

   (a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

   (b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

   (c)any reports commissioned by the agency in the course of investigating a notification.

4. Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child [X] born [in] 2006 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to

   
   

   Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

5. Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. Orders 3, 5, 6, 7, 11 and 12 of the orders made on 4 June 2009 are suspended.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 1820 of 2008

MR PLUNKETT

Applicant

And

MS ROWLING

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern [X] born [in] 2006.  Comprehensive orders were made on 4 June 2009 regarding arrangements for [X]’s care.

2. Mr Plunkett commenced contravention proceedings against

   
   

   Ms Rowling on 11 February 2011, alleging she had breached these orders.  Ms Rowling has filed an application on 17 March 2011 seeking the suspension of those orders and the re-appointment of an independent children’s lawyer.

3. In her affidavit filed in support of her application Ms Rowling alleges that Mr Plunkett has abused [X] and she has been exhibiting sexualised behaviour.  Police and Families SA have been involved in investigating these allegations.  These investigations seem to have ended but

   
   

   Ms [Rowling] remains concerned about [X]’s welfare.

4. Given the nature of the allegations raised, I have come to the view that the appropriate means for them to be investigated, in these proceedings commenced under the Family Law Act, is if the case if transferred to the Family Court for inclusion in the Magellan Project.

5. The Magellan Project is an initiative of the Family Court designed to deal with cases involving serious allegations of sexual abuse of a child.  The matters outlined in the mother's affidavit filed on 17 March 2011, in my view, fit within that descriptor.

6. The rationale of the Magellan Project is that a specialist team of registrars, and a designated judge, deal with such cases expeditiously with a view to them being finalised within six months.  It is part of the protocol of Magellan cases that, at the earliest possible stage, the child concerned in such proceedings is independently represented.  I propose making such an order at this juncture.

7. As a result of protocols executed between the Family Court and state welfare authorities, it has been agreed that state welfare authorities will provide prompt information to the Family Court in respect of notifications of abuse received by the department and actions taken by the department in respect of such notifications. 

8. In this case the mother has outlined in her affidavit what she says has been the involvement of the Child Protection Unit of Families SA and the South Australian Police.  So it would seem to me that both organisations are likely to have significant documentary evidence in respect of these matters.  Accordingly, I think this is another factor which favours the inclusion of the case in the Magellan list.

9. The mother has filed a notice of child abuse.  The relevant officer at the Department for Families and Communities, which is the overarching department within which is contained Families SA, have advised that as the notice contains no details of the allegations of abuse it cannot be investigated.  At first blush that would appear to be so. 

10. Accordingly, I will also make an order pursuant to section 69ZW of the Family Law Act requiring Families SA to provide details of all notifications of abuse received by the department in respect of the child concerned, [X], born [in] 2006, together with details of any action taken in respect of such notifications, and the contents of any reports which have been compiled in respect of such notifications.

11. It seems to be the case that Mr Plunkett has not had any interaction with [X] for a period which is approaching nine or ten months.  From memory he last spent time with the child on the weekend of 17 July 2010. He has commenced his own proceedings, alleging a contravention of the orders, which were made in this Court on 4 June 2009. 

12. Today Mr Plunkett has not attended at court to pursue that contravention application.  In the past it has been my experience of him that he has appeared at each mention and direction hearing in respect of the earlier proceedings between the parties, which were protracted and strongly contested.  I am unaware why Mr Plunkett has not appeared at court today.  Attempts have been made to contact him by telephone, but they have been unsuccessful. 

13. I am concerned at the possibility that the proceedings in this matter have precipitated extreme emotion in him.  However, I concede that is conjecture on my part.  But notwithstanding his non-appearance today I think I am duty bound to respond promptly to these matters raised by the mother. 

14. The natural response of most citizens to suggestions that a child would be sexually abused by one or other of his or her parents is revulsion and disbelief.  However, it is the case that children are abused by their parents, in a sexual manner and such abuse takes place in all strata of society.  For obvious reasons, such abuse constitutes the most serious form of mistreatment of any child, and constitutes the grossest breach of trust of the responsibilities of being a parent. 

15. For those reasons courts, such as this one, at the preliminary stage should adopt a cautious approach to such issues, and engage the proper process for those allegations to be investigated at the soonest possible stage, which is what I have done. 

16. I am not in a position to ascertain the truth or otherwise of the allegations which have been made against Mr Plunkett.  However, I have to respond in a way which I believe is commensurate to the degree of risk raised, and the context and stage at which that risk is raised

17. At this stage I think it would be a commensurate response, given the nature of the allegations made, and the fact that Mr Plunkett has not spent time with the child since July of 2010, if I suspend the current orders which provide for Mr Plunkett to spend time with the child concerned. 

18. If Mr Plunkett was here I would tell him that that does not mean that the allegations against him have been substantiated in any way.  Rather it means that I have determined that, unclear though the nature of the risk is at this stage, it is, in my view, commensurate with the child's best interests that the risk should be investigated, and that whilst those investigations take place, it would not be in [X]’s best interests for her to engage with him.

19. Necessarily the contravention application brought by Mr Plunkett, which is inextricably bound up with the mother's application, needs also to be transferred to the Family Court.  Although, as I said at the outset to Mr Hemsley, it is likely that it has been overtaken by events.  Given that Mr Plunkett is not present today and cannot be contacted I will direct that these brief reasons be transcribed and provided to him.

20. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Brown FM

Date:  1 April 2011