Solberg and Markwell

[2017] FamCA 215

FAMILY COURT OF AUSTRALIA

SOLBERG & MARKWELL [2017] FamCA 215

FAMILY LAW – PRACTICE AND PROCEDURE – Terms of settlement – Application for Consent Orders

APPLICANT: Mr Solberg

RESPONDENT: Ms Markwell

INDEPENDENT CHILDREN’S LAWYER: Ms C Naidu

FILE NUMBER: CAC 1533 of 2014

DATE DELIVERED: 27 March 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 27 March 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Jacqueline Gore & Associates

SOLICITOR FOR THE RESPONDENT:	Watts McCray Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms C Naidu

Orders

1. I make orders in accordance with the Terms of Settlement, initialled by me and placed upon the Court file with today’s date and also in terms of the note initialled by me and placed on the file with today’s date and marked with the letter A.

IT IS NOTED THAT

There is an outstanding property application made by the father on 31 October 2014.  The parties have indicated that they have come to an agreement as to the disposition of this matter but are unable to address me today as to whether or not the disposition is just and equitable, that is they are not able to explain why it is just and equitable nor demonstrate the underlying facts to show that this is the case.  Accordingly, I direct as follows:

1. Within a period of fourteen days of today’s date the parties file a list of agreed facts that they seek to have taken into account to demonstrate that the resolution is just and equitable.

2. Within a period of fourteen days of today’s date each of the parties files an updated Financial Statement.

3. Within a period of fourteen days of today’s date the parties file an Application for Consent Orders to be made.

4. The property proceedings are otherwise adjourned to a date to be fixed by the Registrar. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1533 of 2014

Mr Solberg

Applicant

And

Ms Markwell

Respondent

REASONS FOR JUDGMENT

1. I have been provided with Terms of Settlement executed by each of the parties along with annexures to proposed Consent Parenting Orders provided by the mother and father in order to deal with Rule 10.15A.

2. This is a case in which there have been allegations of risk of sexual abuse by the father that is, allegations that he constitutes a risk of sexual abuse to the child who is aged six. 

3. There have also been allegations that he has failed to deal with the proper medical management of B (the child).  As to the second of these issues, the orders deal with that by the father’s agreement both that the mother will have sole parental responsibility, which I take it includes responsibility for making long-term medical decisions for the child, but also that he will be compliant with the directions given by the mother as to treatment.  This adequately deals with this as an issue and, to the extent to which his home might provide a health issue, that periods of time that the child will spend there are reasonably short.  The solicitor for the mother indicates that these safe guards act as sufficient safe guards in relation to the child’s health. 

4. Turning then to the more vexed issue of risk of sexual abuse, the mother’s solicitor points to the fact that there are no ongoing investigations which I take it to mean no investigations by the New South Wales police force that are continuing, nor any investigations by the Department.  Although neither of these matters are conclusive as to the substance, the ending of those investigations, I am told, has had a persuasive effect upon the mother in her assessment as to the degree of risk that the father poses.  In consequence the risk previously perceived by the mother is to her mind reduced and reduced sufficiently such that the Terms of Settlement would adequately provide sufficient safe guards.  Those safe guards have been set out by the Independent Children’s Lawyer as provided conduits for the child should anything occur - that she will be able to raise the issue.  In the context where the mother is described as both devoted and hyper vigilant the presence of the mother as a conduit for a complaint, at the school and importantly Ms C, as the child’s counsellor, act as sufficient safe guards for a risk which is now seen as ameliorated.

5. The parties have agreed that the child will continue to attend upon Ms C.  Ms C I am told is a mandatory reporter and has had a previous therapeutic relationship with the child. 

6. Given the assessment by the parties of the lowered risk and the putting in place of safe guards to deal with that lowered risk I am satisfied that the orders proposed by the parties and supported by the Independent Children’s Lawyer are sufficient to deal with the issues raised by each of the parties as to risk for the child and I am content to make those orders as being in the child’s best interest.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 27 March 2017.

Associate: 

Date:  10 April 2017