POLS & MALONE

[2011] FamCA 929

FAMILY COURT OF AUSTRALIA

POLS & MALONE [2011] FamCA 929

FAMILY LAW – PRACTICE AND PROCEDURE – where the mother does not wish to proceed with her application and seeks that it be dismissed – where the father has refused to participate in the proceedings as of late – where the Court is without jurisdiction – orders that the mother’s application be dismissed and father’s application be dismissed by default.

Family Law Act 1975 (Cth)

APPLICANT: Ms Pols

RESPONDENT: Mr Malone

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 477 of 2011

DATE DELIVERED: 16 November 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 16 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Eid
SOLICITOR FOR THE APPLICANT:	Websters Lawyers

COUNSEL FOR THE RESPONDENT:	No appearance
SOLICITOR FOR THE RESPONDENT:	No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Stephen
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission

Orders

1. On the mother’s application, her Initiating Application filed on 10 February 2011 be dismissed.

1. By default, the father’s Response filed on 23 February 2011 be dismissed.

1. The appointment of the Independent Children’s Lawyer be discharged.

1. All matters be removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 477  of 2011

Ms Pols

Applicant mother

And

Mr Malone

Respondent father

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me today proceedings commenced by the mother on 10 February 2011 by the filing of an Initiating Application in which she sought orders, inter alia of a final nature, that the child in dispute between the parties, namely B (“the child”) born in 2002 and who is hence 9 years of age presently, live with her and spend time with the father as may be agreed between the parties or as ordered by the Court.   In circumstances where the father had retained the child in his care, she also sought an order for the immediate return of the child to her.

2. The father filed a Response to that Initiating Application on 23 February 2011 in which he sought orders that the child live with him.  The concerns that he raised and the reasons that he gave for retaining the child in his care were evidenced by a Notice of Child Abuse filed by him on 11 March 2011.  In that Notice of Child Abuse he detailed his concerns that the child had been sexually abused by the mother’s partner Mr C. 

3. As is the case in the Court’s Magellan list and after the assistance and enquiries and intervention of the Independent Children’s Lawyer, the Court ultimately ordered the preparation of a Section 62G(2) report.  That report was concluded and released to the Court, the parties and the Independent Children’s Lawyer on 25 May 2011.  During the course of the interview by the Family Consultant with the child, the child made some very specific and very disturbing allegations of sexual abuse of her by Mr C.  That resulted in the Family Consultant making recommendations that the child live with the father, that the child receive counselling and therapy because of her experiences, that the mother also attend counselling to assist her in developing an understanding of what the child had experienced and improving the mother’s own knowledge of protective behaviours and that the mother spend only very limited time with the child.

4. In order to clarify the Family Consultant’s position some further information and detail was sought from the Family Consultant and further information was provided by her in a letter to the Independent Children’s Lawyer dated 29 August 2011 which is annexed to an Affidavit of the Family Consultant filed on 22 September 2011.  In that document the Family Consultant reiterated her view that the child was at risk in the care of the mother given the mother’s disinclination to accept the allegations of abuse by Mr C.

5. However I accept, as indicated by the Independent Children’s Lawyer, that the mother’s attitude changed once she became aware of the intimate detail of the allegations of abuse.  Indeed it would be difficult for anybody not to be alarmed, particularly a parent, given the very specific and very disturbing disclosures made by the child.

6. I am informed by Mr Eid, Counsel for the mother, that the mother is no longer in a relationship with Mr C and does not intend ever to resume that relationship with him.  Given the information on the Court file, it is absolutely essential that the mother never ever resumes her relationship with Mr C or allows the child to have any contact with him. 

7. The father has, of recent times, failed to take any further part in the proceedings.   There was no appearance by him at the hearing before Registrar Thomas on 12 October 2011, although he was represented by a lawyer at that time who indicated that she was currently without instructions.  Subsequently Ms Pederick filed a Notice of Ceasing to Act on 20 October 2011. 

8. There is no appearance by the father today and I am of the view, on that basis, that I am entitled to assume that the father does not intend to take any further part in the proceedings and does not intend to prosecute his Response before this Court.  For her part the mother has indicated that she and the father have entered into a parenting plan and did so on 13 September 2011.  The consequence of that parenting plan was that the child was returned to her mother and they are making their own arrangements as to when and how the child sees her father.  On that basis the mother has indicated, through her Counsel, that she does not wish to proceed further with her aforesaid Initiating Application before the Court and requests that the same be dismissed.

9. In those circumstances, namely with the mother’s intimation that she wishes her Initiating Application to be dismissed and the quite clear intention by the father not to pursue his Response to those proceedings, this Court is without jurisdiction and it is inappropriate that it makes any orders.  It is the Court’s hope that henceforth the mother and the father will both do their best to ensure the child’s safety and security.

I certify that the preceding nine (9) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 16 November 2011.

Associate: 

Date: