Adeney & Adeney

[2007] FamCA 112

FAMILY COURT OF AUSTRALIA

ADENEY & ADENEY [2007] FamCA 112

FAMILY LAW - CHILDREN – Procedural orders made for preparation of welfare proceedings in the Standard Track List March 2007 “Blitz”.

APPLICANT: Mr Adeney

RESPONDENT: Mrs Adeney

INDEPENDENT CHILDREN’S LAWYER: Ms Agresta

FILE NUMBER: MLF 3575 of 2005

DATE DELIVERED: 13 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 13 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Bradshaw

SOLICITOR FOR THE RESPONDENT: Heinze & Partners

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Agresta

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Victoria Legal Aid

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3575  of 2005

Mr Adeney

Applicant

And

Mrs Adeney

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me in preparation for a trial date in the March sittings of the Standard-Track List of defended cases.  Mr Bradshaw appears for the wife.  There is no appearance by or on behalf of the husband, who in fact is the applicant in the proceedings.  Ms Agresta appears for the Independent Children's Lawyer.

2. Insofar as the husband is concerned, I have had brought to my attention a letter forwarded to the court by facsimile transmission and dated 12 February 2007.  It is reasonably striking for its commendable economy, and it will not waste court time to include its rather abrupt script into this short judgment:

   “I have been advised there is going to be a listing for a Call-Over for tomorrow morning.  Unfortunately I must respectfully advise the Court that I am unable to attend Court tomorrow, as this would require me to take a leave of absence from work which would jeopardize my employment and result in my being sacked. 

   I respectfully request that the Court strike off tomorrow's listing and set down a future hearing date for all parties to attend, at which I would hope to have legal representation. 

   I apologise to the Court for any inconvenience this may cause. 

   Thank you. 

   Yours faithfully,

   [MR ADENEY]”

   [signed by the husband]

3. In accordance with the letter I will appoint a future hearing date which he may or may not attend.  Only the future will tell. 

4. I have been assisted with a helpful outline by Ms Agresta as to the issues that are before the court at the March sittings I am to conduct.  There are competing residence application involving two children, D, aged 11 years, and A aged 13 years.  Those children have lived with their father in particular circumstances since November 2005.  There have been several reports.  Clearly, the Independent Children's Lawyer will be relying upon the reports from Mr K and Mr N, a Family Consultant who provided a recent report. 

5. In this matter, there has been a history with the husband’s non-compliance with court orders.  For example, he failed to take the children to Mr M for an assessment.  He has not provided affidavit material in accordance with the orders made at the Pre-trial Conference.  I am informed that on 18 August 2006 an order was made that the matter proceed undefended in the event that the father did not appear or did not file affidavit material. 

6. Ms Agresta said the issue was one of plain and obvious manipulation.  It seems on the face of it that the husband appears to have acted to remove their mother from the children's lives, and he now relies upon their wishes. 

7. I have also received a helpful submission from Mr Bradshaw, urging that I give this matter priority.  This I propose to do.  It will be placed early in the sittings before me commencing on 13 March 2007. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  1 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ADENEY & ADENEY