Bedford and Cusack

[2009] FamCA 421

FAMILY COURT OF AUSTRALIA

BEDFORD & CUSACK [2009] FamCA 421

FAMILY LAW – CHILDREN – Interim hearing

APPLICANT: Mr Bedford

RESPONDENT: Ms Cusack

INDEPENDENT CHILDREN’S LAWYER: Ashley Kent

FILE NUMBER: ADC 1688 of 2007

DATE DELIVERED: 25 March 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 25 March 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms Cocks

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Ashley Kent

Orders

1. That the Response filed by the father on 16 February 2009 be dismissed.

2. That the affidavit of Dr B filed on 18 March 2009 by the father be uplifted forthwith and returned to the father.

3. That the mother’s affidavit filed on 18 March 2009 and the affidavit of Mr N filed on 18 March 2009 by the mother be uplifted forthwith and returned to the mother.

4. That the time for the husband to file and serve his affidavit of evidence in chief and the affidavit of evidence in chief of Dr B be extended to 4:00pm on 23 April 2009.

5. That the time for the mother to file and serve her affidavit of evidence in chief and the affidavit of evidence in chief of Mr N be extended to 4:00pm on 23 April 2009.

6. That the Application in a Case filed by the father on 17 March 2009 be dismissed and removed from the active pending cases list.

7. That until further order paragraph 1 of the order made on 25 February 2009 do continue.

8. That further consideration of this matter be adjourned to 3:00pm on 30 April 2009.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1688 of 2007

MR BEDFORD

Applicant

And

MS CUSACK

Respondent

EX TEMPORE REASONS

1. There are a number of matters to consider today.  Firstly, whether the injunction in paragraph 1 of the order made on 25 February 2009 should continue.  In that regard all parties including the Independent Children’s Lawyer agree to that injunction continuing, and I will make that order.  Secondly, there is the father’s response filed on 16 February 2009, and in particular paragraphs 4, 5 and a second paragraph 4.  The father has sought to pursue these orders today.  They are opposed by the mother and the Independent Children’s Lawyer.  In relation to paragraphs 4 and 5 there is insufficient evidence before me to justify making those orders, but in any event I consider that they are trial issues rather than interim issues.  With the other paragraph 4 I have attempted to explore the issues with the parties and counsel for the Independent Children’s Lawyer, but frankly without much success.  In the end result I am not prepared to change the current arrangements for handover.  Thus I propose to dismiss this response entirely.

2. The next issues relates to the affidavits filed by the parties and the father’s application for a further extension of time to file his affidavit.

3. I now have the replacement affidavit of the mother, and the replacement affidavit of Mr N, but they are still simply inadequate.  It is impossible to run a trial with affidavits like that.  The generality of them does not allow me to make any findings whatsoever, given that there will be no further evidence-in-chief in support of the application.  They will be uplifted and returned to the mother for her to have another go at getting it right.  Perhaps the mother might start to think that it would be of benefit to have a lawyer do this for her.

4. The father has filed an affidavit of his sister, Dr B, but it is again another inappropriate and inadmissible affidavit. I have not yet made an order under section 69ZT of the Family Law Act, but I propose to.  I am not going to have a situation where the parties present material which is not relevant, has no weight and on which I cannot make any findings.  The affidavit of the sister is an extraordinary affidavit.  It is an affidavit of some 21 pages in length, and one example of how inappropriate it is arises at page 19, paragraph 5.0 which commences, "I made the following observations of the father [Mr Bedford]," and then there are a series of sub-paragraphs which in fact contain few observations, but rather comprise a recantation of what the father says.  The father has to put that in his own affidavit.  He cannot have a witness come along and spend pages regurgitating what the witness says the father has said to her. 

5. A large part of the affidavit is this witness setting out what allegedly this child H has said to her or in her presence.  However, it is not put in the correct tense, and it is this witness putting her own gloss, her own interpretation, on what this very young child is apparently saying.  The words used are those of the sister and not the child.  It is the same as the affidavit filed by the father, which I ordered to be uplifted and returned to him where he set out what he says the child has said to him.  The words used are not the words that a child would use but they were words that an adult would use.

6. I find it extraordinary - and I wonder about the quality of life of this child in the father's household - when his sister can spend pages and pages setting out what the child has allegedly said.  The sister and/or the father must sit this child down and quiz her endlessly if this affidavit is accurate.  Otherwise this affidavit contains not what the child says, but what the father, as the parent, and his sister want to put to this court with consequent embellishment and exaggeration.

7. I am not going to have such an affidavit before this court.  The affidavit of the sister should cover appropriate topics, namely, her observations, what she has heard and putting what she has heard in the precise words of the child, and not an interpretation of it. 

8. What this also means is that this case is nowhere near ready for trial, and Ms Cocks will be extremely concerned about that from the child’s point of view, and I am as well.  The father at least now has a lawyer, Mr Charman, who is going to prepare his affidavit.  I hope that the father gets Mr Charman to prepare his sister's affidavit as well.

9. With the mother, I do not know.  To repeat, her affidavit is full of generalities.  There are no specifics there whatsoever, except in very limited instances.  "After separation, the father savagely beat me in front of our two‑year‑old daughter."  When?  What were the circumstances?  "I say that the father constantly contravenes the current court orders, to the point where I have not lodged contraventions."  What am I supposed to do with that?  What is any judge supposed to do with that?  What are the details?  And so it goes on, generality after generality.  "I say that the father has continued to try to retain [H] in his care full‑time.  He continues to coach and harass [H]."  What am I supposed to do with that?  How does he coach?  How does he harass?  What is the evidence of that?  This is not evidence.  These are generalities, statements, conclusions.  They do not assist in the context of the need to provide proper evidence to support the application that is made.

10. Reluctant as I am, and knowing that this will lead to a continuation of this case hanging over this child's head - and, presumably, a continuation of what is obviously the minute and detailed questioning of this child by the father and his sister, which concerns me greatly - I am not going to allow this affidavit material to remain on the court file.

11. I should say that Mr N’s affidavit being briefer is a little more helpful.  There is a section which sets out his relationship with the child.  There are only three or four paragraphs, and they are unnumbered, but the contact is relevant.  However in paragraph 6 he says, “prior to the incident on 18 March 2007”, but what is the incident?  There is no detail of that.

12. I hear disputes.  If there is a dispute, this should proceed as expeditiously as possible.  However, if the parties want to take this matter out of this court, feel free to do so.  You are the parents, and you should take responsibility for your child.  I have said this until I am blue in the face, but it is not happening.  The matter is in this court, but it can only remain in this court and I can only make a fully informed decision if there is proper evidence before me.  That situation has not been reached.

13. I am also not adjourning this case unless there is a serious position put to me that there will be negotiations to resolve the matter.  It is not good enough for the father to just stand up and say, "Look, this is all too hard, let's try and sort it out out of court."

I certify that the preceding 13 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland J delivered on 25 March 2009.

Associate