ATHERTON & WILSON

[2011] FamCA 1031

FAMILY COURT OF AUSTRALIA

ATHERTON & WILSON [2011] FamCA 1031

FAMILY LAW – EVIDENCE – Magellan matter – exceptional circumstances – matter not conducted as less adversarial trial

Family Law Act 1975(Cth), s 69ZT(3)(a)

APPLICANT: Ms Atherton

RESPONDENT: Mr Wilson

INDEPENDENT CHILDREN’S LAWYER: Ms Strong

FILE NUMBER: CAC 493 of 2011

DATE DELIVERED: 13 December 2011

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 13 December 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Pope, Legal Aid Office (ACT)

SOLICITOR FOR THE RESPONDENT: Ms Lloyd, Jeanine Lloyd & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Strong, Strong Law

ORDERS

IT IS ORDERED THAT:

1. The application for final orders is set down for final hearing on 13, 14, 15 and 16 (if necessary) March 2012.

2. a.     In relation to the final hearing there will be a further directions hearing on 14 February 2012 at 9am to determine that the matter is ready to proceed and to give final directions about the way in which the hearing will proceed. 

b.Nevertheless on that day, unless there are good reasons to the contrary, I will direct that the evidence of the parties will be taken at the commencement of the trial to permit the interposition of Dr B on 14 March 2012.

c.In relation thereto, Dr B’s attendance will be either by video link if possible or by telephone if not.

1. Each of the parties will file such affidavits as he or she may seek to rely upon on or before noon on 7 February 2012.

2. No material filed after that date by either party may be relied upon without my specific leave which will not readily be given.

3. The Independent Children's Lawyer may issue such subpoenas as she considers to be appropriate, returnable on any day on or before 29 February 2012.

4. Either party may, with the leave of the Independent Children's Lawyer and the other party, issue any subpoena he or she seeks to issue, again returnable on any day on which subpoenas are ordinarily returnable on or before 29 February 2012 or in default of agreement with my leave but not otherwise.

5. The trial between the parties will be conducted in accordance with the Rules of Evidence in accordance with the direction I have this day indicated to the parties I will give pursuant to s 69ZT(3) of the Family Law Act 1975.

6. Counsel is required to attend either in person or by telephone on 14 February 2012 at 9am. 

BY WAY OF INTERIM ORDERS, UNTIL THE HEARING OF THIS MATTER, IT IS ORDERED THAT:

1. a.     C will continue to spend time with her father on each Tuesday and Thursday between the hours of 4pm and 5:30pm supervised by InTouch, unless the parties otherwise agree in relation to any particular instance.

b.The child’s father will confirm to the child’s mother by text message (SMS) not less than 24 hours before each time when he is to see the child that he will be able to attend and proposes to do so.

10.a.     On Christmas Day 2011 the child will spend between the hours of 11am and 1pm with her father, under the supervision of the father’s parents.

b.The child will also spend, on 29 January 2012, the hours between noon and 3pm with her father, again under the supervision of the father’s parents.

c.The Independent Children's Lawyer has undertaken to provide information to the paternal grandparents of the child as to the nature and obligation of their role as supervisors at the times referred to and will obtain from them, in writing, their consent to undertake the task referred to on those terms.

11. It is noted that at this point the Director-General of the Community Services Directorate has not yet determined whether they will either intervene in the proceedings or remove the proceedings in effect to undertake care proceedings in a different court.  The Independent Children's Lawyer agrees that she will advise the parties in the Court as soon as possible of the decision arrived at by the Director-General.

12. The Director-General, if he determines not to undertake separate proceedings in a different court will provide a report pursuant to s 69ZW of the Family Law Act 1975 as to the actions undertaken by the Director-General or on the Director-General’s behalf, such report to be provided as soon as possible but in any event on or before noon on 7 February 2012.

13. Notwithstanding any previous order it is noted that the mother may now be moving to live with Mr D.  The mother be and is hereby prohibited from living with the child other than at her mother’s home or at the home of Mr D until further order.  

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:  CAC 493 of 2011

Ms Atherton

Applicant

And

Mr Wilson

Respondent

REASONS FOR JUDGMENT

1. The direction I am giving in relation to evidence is pursuant to s 69ZT(3)(a). I am satisfied that the circumstances are exceptional, and I have taken into account in determining that the importance of the evidence in the proceedings, the nature of the subject matter, the probative value of the evidence likely to be given of those matters.

2. I say absolutely clearly, if it is not filed by that date, you do not get it in.  So it is not just “it will be okay on the day”.  It will not be okay on the day.  It has got to be in.

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 13 December 2011.

Associate:

Date: