Bain and Stewart (No. 4)

[2008] FamCA 640

FAMILY COURT OF AUSTRALIA

BAIN & STEWART (NO. 4) [2008] FamCA 640

FAMILY LAW – CHILDREN – Case management

Family Law Act 1975 (Cth)

Rice v Asplund (1979) FLC 90-725

APPLICANT: Mr Bain

RESPONDENT: Ms Stewart

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 766 of 2005

DATE DELIVERED: 26 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 26 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.R. Werner

SOLICITOR FOR THE APPLICANT: Rigoli & Associates

THE RESPONDENT: In person

INDEPENDENT CHILDREN'S LAWYER COUNSEL: Mr J.R. Williams

INDEPENDENT CHILDREN'S LAWYER SOLICITOR: Robert Halliday & Associates

ORDERS:

1. That all extant applications be listed for final hearing before me on 20 October 2008 at 10.00am.

2. Forthwith and until the delivery of judgment in this case, all extant orders relating to the communication between the mother and the child are suspended.

3. That judgment be reserved.

4. Liberty to apply.

5. That unless otherwise impracticable, Registrar Kaur be appointed as the docketed registrar responsible for the management of the case.

6. That all outstanding applications be adjourned for mention before Justice Cronin on 13 October 2008 at 9.30am by telephone before me for the purposes of being listed for final hearing, including on the issue of Dr T doing a family report.

7. That unless otherwise impracticable, any future interim application be listed before the docketed registrar at a time to be arranged with that registrar.

8. Any directions for the filing of documents for the purposes of such interim hearings may be made in Chambers.

9. That by 4 pm on 4 July 2008 the applicant file a document setting out with precision what orders are being sought.

10. That by 4 pm on 14 July 2008 the respondent file a document setting out with precision what orders are being sought.

11. That by 4 pm on 29 August 2008 the applicant file and serve upon all other parties, the affidavits of evidence in chief of all witnesses relied upon, save as Dr R which is to be filed by 8 October 2008, such affidavits being confined to the issues in dispute as discussed this day.

12. That by 4 pm on 12 September 2008 the respondent file and serve upon all other parties, the affidavits of evidence in chief of all witnesses relied upon, such affidavits being confined to the issues in dispute as discussed this day.

13. That by 4 pm on 8 October 2008 the Independent Children’s Lawyer file and serve upon all other parties, the affidavit material relied upon.

14. That unless the applicant obtains a waiver of the relevant fee, the applicant pay the trial fee by 4 pm on 4 August 2008.

15. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

16. Should any party fail to comply with these orders or the ensuing amending directions of the registrar responsible for the file, that registrar shall:

    (a)If both parties are in default, be at liberty to vacate the final hearing date and strike the case out of the list with a right of reinstatement upon conditions to be determined by the registrar; or

    (b)refer the case to the trial judge for directions as to its future management; or

    (c)if the trial judge is unavailable, refer the case to the Case Management Judge for directions and determination,

    AND IT IS NOTED THAT all parties have been advised that a failure by one party to comply with these orders and those of the registrar responsible for the file may lead to the complying party seeking from the trial judge leave to proceed on an undefended basis.

17. Reserve all costs.

18. That no further application shall be filed by any party of any nature without my leave pending the further hearing of the matter.

19. That 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 NOTED that publication of this judgment under the pseudonym Bain & Stewart is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  DGF 776 of 2005

MR BAIN

Applicant

And

MS STEWART

Respondent

REASONS FOR JUDGMENT

1. This is a matter that comes before me in relation to a child, a son.  Guest J dealt with the substantive proceedings and delivered a significant judgment 18 months ago.  In that judgment his Honour took the child away from his mother and gave him to his father and then made a variety of contact orders.  Subsequent to that there have been a number of proceedings.  The matter came before the Senior Registrar in November 2007 at which time the Senior Registrar had the benefit of argument and albeit on untested evidence was sufficiently moved to give written reasons for suspending various orders of Guest J.

2. Because of the complexity of the judgment of Guest J the Senior Registrar thought it appropriate to send the matter back to Guest J.  The matter came before Guest J on 3 January 2008 and his Honour decided that it was not appropriate for him to hear the matter and he referred it to me.  It came before me in March.  At that time there were allegations by the mother that the orders albeit amended were not being carried out.  I dealt with a swag of allegations for breaches of orders, and made findings after hearing evidence. 

3. I then made not only orders in relation to the one significant breach that I found, which was more or less conceded as I recall by the father, but put in place some variations of the Senior Registrar's orders to try and make the situation work.  As part of the judgment I indicated very clearly that the substantive application of the mother to effectively discharge Guest J's orders would have to wait in the queue like any other case, but that I was prepared to determine interim matters as soon as I could practically provide the time.  I made orders that the application of the mother seeking interim orders and what I perceived at that stage to be a foreshadowed application for either summary dismissal and/or an application to rely upon the test set out in Rice v Asplund (1979) FLC 90-725 be heard on a specific date. For that purpose the parties were to rely on the material that they had filed, and in addition to that, I made specific orders that the parties were not to file any further affidavit material in respect of those applications.

4. What has transpired since that time has been that the mother has filed a number of contravention applications.  When I say a number, I effectively mean one application, but it has been amended I think on two occasions on the basis that the father alleges that there has been subsequent breaches.  When I started the hearing today it was on the basis that I thought I was dealing with an interim application to look at what was to happen to the child between now and the matter being ultimately determined on trial, but the matter has been distracted by the contravention application.

5. The mother asked me to deal with the contravention application which was amended and filed in its final form yesterday 25 June.  It was served personally as it should have been, and there are, according to the mother, three affidavits that she wanted to rely upon.  It was quite clear when we started today's hearing that we were not going to be proceeding with the application to look at interim orders in relation to the child but the contravention application.  Mr Werner on behalf of the father was handicapped by the fact that he had not even seen the material most recently provided and he obviously needed some time to get instructions about that, but otherwise the matter could proceed on that basis. 

6. The father has made it very clear that he is going to be seeking to have the principles of Rice v Asplund applied, so to that extent that application will have to be dealt with in due course.  However, the matter seems to have taken a different turn because Mr Williams on behalf of the Independent Children's Lawyer says that the problem is now so urgent, the matter needs some attention today.  The Independent Children's Lawyer's position is that the child is seeing a psychologist a Mr T.  It is clear that the problem about the child is urgent and I need to hear something about that.

7. Mr Williams says that the mother is the cause of the disruption in this child's life and that is clear from what Mr T says and also from the single expert witness Dr J. Dr J has assessed the mother as having a Borderline Personality Disorder amongst other things. The mother says that she does not want me to deal with the application by the Independent Children's Lawyer first, but to deal with the contravention application. Clearly the question of the best interests of the child applies here and the determination of matters is now governed by Division 12A of Part VII of the Family Law Act 1975 (Cth).

8. Notwithstanding the Court has traditionally had a policy that contravention applications should be dealt with first because of their quasi criminal nature, this is a case where, having regard to the strength of the submission by Mr Williams, I think it is appropriate that I at least hear the application.  It does not mean that I will necessarily grant the orders sought by the Independent Children's Lawyer.  Mr Werner on behalf of the father supports the fact that I should at least hear the application including hearing some evidence from Mr T. 

9. One of the dilemmas in taking that course of action however is that I would, if I made the proposed orders sought by the Independent Children's Lawyer, want to be satisfied that the case would be heard reasonably soon.  On that basis I will make some inquires as to whether the trial can be allocated a number of days so that the mother can test the evidence of Dr J and potentially Mr T as well as produce some other evidence that may convince the Court that any orders sought by Mr Williams on behalf of the Independent Children's Lawyer are not as necessary or as urgent as he makes them out to be.

10. For that reason I propose to deal with the interim application sought by Mr Williams forthwith. 

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

Associate: 

Date:  9 July 2008