Valant & Calaway (No 2)

[2021] FCCA 1437

FEDERAL CIRCUIT COURT OF AUSTRALIA

Valant & Calaway (No 2) [2021] FCCA 1437

File number:	ADC 1929 of 2013
Judgment of:	JUDGE YOUNG
Date of judgment:	19 May 2021
Catchwords:	FAMILY LAW – parenting – concerning a child who is eleven years old – where the father has filed a Notice of Discontinuance – where there have been serious concerns about the child’s welfare in the mother and the father’s care – where the mother sought for the child to live with her and spend regular time with the father – where it is unclear whether the child welfare authorities are aware of the issues concerning the mother and father’s parenting capacity – insufficient evidence to make final orders – adjournment of proceedings
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	9
Date of hearing:	19 May 2021
Place:	Adelaide
Solicitor for the Applicant:	No appearance by the Applicant
Solicitor for the Respondent:	Mr Harley of Dixon Gallasch Pty Ltd
Solicitor for the Independent Children's Lawyer:	Ms Ryder of Ryder Family Law

ORDERS

ADC 1929 of 2013

BETWEEN:

MR VALANT

Applicant

AND:

MS CALAWAY

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	19 MAY 2021

UPON NOTING THAT:

A.The applicant filed a Notice of Discontinuance on the 12 May 2021;

B.The Independent Children’s Lawyer is to seek to obtain a letter from the Department of Child Protection SA confirming it is aware of the overarching child protection issues in this matter and the child protection issues in Victoria concerning the father.

THE COURT ORDERS THAT:

The matter be listed for an undefended hearing on 20 September 2021 at 2.15pm.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Valant & Calaway (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is a parenting application concerning X who is 11 years old.  Parenting orders were made in 2015. In summary these orders provided for the child to live with the mother and spend regular time with the father. 

2. The matter came in to my docket in February 2018 when the mother filed an Application in a Case after the child was withheld in Victoria by the father.  Eventually, in the course of the proceedings, the matter seemed to settle with the child living with the father in Victoria.  There were serious child welfare concerns about the mother which had been raised by the father and which were the subject of consideration before me.  Those child welfare concerns were serious and legitimate. They related to drug use and the exposure of the child to family violence.  The child returned to the mother last year or, perhaps, late 2019.  Further serious concerns were raised by the father about the child being involved in a car chase or theft. 

3. However, upon further consideration of this matter, it became apparent to this Court for the first time that the father had a very concerning history with respect to the child welfare authorities in Victoria. I had not been made aware of this.  Mr Harley, who appeared for the mother, was not aware of this.  Ms Ryder, the Independent Children’s Lawyer, became aware of it on very recently. I became aware of it only after that.  I understand the concern was that a child who had been in the care of the father died from inflicted injuries.  The father was charged at one point, however, the charges were dropped.  That child’s mother (the father’s partner) was charged and subsequently convicted of an offence arising from that. There were other child protection issues concerning the father, however, they were not of comparable seriousness to that incident. 

4. The father has now filed a Notice of Discontinuance and the matter came on today. I asked Mr Harley and Ms Ryder what course they proposed.  Mr Harley told me that he sought a reversion to the 2015 orders which provided for the child to live with the mother and spend regular time with the father.  After discussion with Mr Harley and Ms Ryder, I indicated that I was very unlikely to follow that course. 

5. Having the benefit of the information concerning the parties, I believe there would be very serious reservations before this Court made an order that the child spend significant or substantial holiday time with the father. This is particularly the case without more information being available about the father and without some reassurance about the child protection issues previously mentioned. 

6. The orders Ms Ryder proposed were that the child live with the mother and spend time with the father as agreed. I suggested that I would be somewhat reassured in considering that these orders are appropriate if I was satisfied that the Department of Child Protection in South Australia indicated to the Court that they were aware of the overarching child protection issues in this matter. 

7. Once finals orders are made in this Court there is no oversight possible.  It then becomes a responsibility of the relevant state child welfare authorities not of this Court.  I am aware of the potential, in such a situation as this, for child welfare issues to fall between the gaps. I want to do what I can to ensure that this does not occur. This Court does not make final orders disposing of the matter simply to abnegate responsibility where there are real concerns about the welfare of this child.

8. Therefore, I will adjourn this matter for an undefended hearing to 20 September 2021 at 2:15pm.

9. I will also note that in the adjourned period the Independent Children’s Lawyer is to seek to obtain a letter from the Department of Child Protection SA confirming it is aware of the overarching child protection issues in this matter and the child protection issues in Victoria concerning the father.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       25 June 2021