Wesley and Hunt

[2009] FamCA 1158

FAMILY COURT OF AUSTRALIA

WESLEY & HUNT [2009] FamCA 1158

FAMILY LAW – CHILDREN

Family Law Act 1975 (Cth)

APPLICANT: Mr Wesley

RESPONDENT: Ms Hunt

INDEPENDENT CHILDREN’S LAWYER: Ms T. Bell

FILE NUMBER: BRC 7377 of 2008

DATE DELIVERED: 13 November 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 13 November 2009

REPRESENTATION

THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT:

Mr L.E. Smith

Smith & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms T. Bell

Legal Aid Queensland

Orders

1. The matter be adjourned to the Magellan Directions List before Justice Murphy at 10.00am on 26 March 2010 in the Brisbane Registry of the Family Court of Australia.

2. In the event that the parties reach agreement, they shall be at liberty to forward minutes of consent, by way of joint communication forwarded to the Associate to Justice Murphy by email attaching a copy of the minutes of consent, and if considered appropriate, such orders shall be made by consent in chambers without the necessity of any appearance by the parties, and any future dates in respect of such orders will be vacated.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

IT IS NOTED THAT

The parties intend conducting, with an independent third party, discussions with a view to resolving on a final basis, the co-parenting arrangements for these two young children.

MINUTES OF CONSENT

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The father spend unsupervised time with the children M born … November 2002 and R born … February 2006 at all such reasonable times as may be agreed but failing agreement:

   a)        For two (2) visits from 10.00am to 4.00pm each alternate Saturday;

   b)Then for two (2) visits from 9.00am to 5.00pm each alternate Saturday; and

   c)        Thereafter each Saturday from 8.00am to 5.00pm.

2. The mother will ensure she do all acts and sign all things to finalise the DNA question within three (3) weeks.

3. The mother is no longer of the view that there is any risk of sexual abuse or sexual harm and recants the allegation.

4. The parties intend to participate in a Family Dispute Resolution Conference.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7377 of 2008

MR WESLEY

Applicant

And

MS HUNT

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The parties to this action, which is listed in the Magellan directions list, have reached agreement on an interim basis and each of them seek to avail themselves of expert assistance in attempting to reach an agreement about parenting orders on a final basis. 

2. Previously allegations about “abuse”, as that phrase is defined in the Family Law Rules, have been made. As a result, it is necessary for me to take into account the provisions of rule 10.15A of the Family Law Rules.

3. In broad terms, if an application is made orally during a hearing the parties and/or the parties’ lawyer must explain to the court how the order attempts to deal with the allegations. 

4. In this case the allegations at the centre of what the rules refer to as “abuse” are allegations of sexually inappropriate behaviour by the father towards a young child.  Those allegations were the subject of criminal proceedings.  The state of the evidence in respect of those allegations was such that, at the committal proceedings in respect of those criminal charges, I am told the Crown offered no evidence and the charges were not proceeded with. 

5. Subsequently, the parties have had the advantage of having read a report from a reporting psychiatrist, Dr G. The mother has conferred with her legal representatives. Each of the parties have conferred today with the Independent Children’s Lawyer. 

6. The interim orders to be made by me record the fact that:

   The mother is no longer of the view that there is any risk of sexual abuse or sexual harm and recants the allegation.

7. I take the expression “recants the allegation” as one to be measured against the former statements made by the mother. I understand it to mean that the information subsequently received by the mother - from all sources – including, significantly as it seems to me, input forming part of criminal proceedings including the ultimate result that the Crown considered the evidence such as not to seek to proceed with those charges, as satisfying her that no unacceptable risk of the sort of harm specified is present. 

8. A combination of those circumstances satisfies me that the parties have explained to me how the orders by consent between them seek to deal with the allegations of abuse. 

9. The Independent Children’s Lawyer, quite properly in the circumstances of this case as it seems to me, neither consents to, nor opposes, the orders being made. 

10. I am satisfied that I should make the orders on an interim basis in the best interests of the children, the subject of them. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  1 December 2009