BENDON & BENDON

[2015] FamCA 207

FAMILY COURT OF AUSTRALIA

BENDON & BENDON [2015] FamCA 207

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment sought by the mother to enable the preparation of a full Family Report – adjournment granted

Family Law Act 1975 (Cth)

APPLICANT: Ms Bendon

RESPONDENT: Mr Bendon

INDEPENDENT CHILDREN’S LAWYER:	Kenna Teasdale Lawyers
FILE NUMBER:	DGC	672	of	2014

DATE DELIVERED: 4 February 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 4 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Moisidis

SOLICITOR FOR THE APPLICANT: Duffy & Simon

COUNSEL FOR THE RESPONDENT: Ms McGregor

SOLICITOR FOR THE RESPONDENT: Fiona R McGregor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Boymal
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Kenna Teasdale Lawyers

Orders

IT IS ORDERED THAT

1. That the final hearing listed before Johns J on 23 February 2015 be vacated.

2. That all extant applications be listed for final hearing before Johns J noted as a four-day matter to commence on 21 April 2015 at 10.00 am.

3. That the times for the wife’s compliance with order 3 of the Orders dated 7 November 2014 be extend to 13 February 2015.

4. That the times for the husband’s compliance with order 5 of the Orders dated 7 November 2014 be extended to 13 February 2015.

5. That pursuant to s 62G(2) of the Family Law Act 1975 (Cth) the parties and the children attend upon and at the direction of a Family Consultant nominated and appointed by the Director of Child Dispute Services at the Melbourne Registry for the purposes of the preparation of a Family Report to be completed and released by 27 March 2015 AND THE COURT NOTES that the parties and the children are to attend appointments for interview with Ms B on 3 March 2015.

6. That the Family Consultant be at liberty to inspect the Court file and all documents produced under any subpoena to which objection to release has not been taken.

7. That the times for the parties’ compliance with order 13 of the Orders dated 7 November 2014 be extended to 14 April 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bendon & Bendon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 672 of 2014

Ms Bendon

Applicant

And

Mr Bendon

Respondent

And

Independent Children’s Lawyer

REASONS

1. These Reasons for Judgment were delivered orally.

2. The matter of Bendon comes before me today as a mention hearing in anticipation of a final hearing that is listed before me to commence on 23 February 2015. 

3. Pursuant to orders that I made on 7 November 2014, each of the parties has filed their trial affidavit material.  Neither has yet filed their financial statement. 

4. The parties have competing residence applications in respect of their three children who are aged nine, seven and five.  The children currently live with the mother in rural Victoria.  The father lives in Perth.

5. Perth is the city in which the children lived prior to the parties’ separation.  They, with their mother, relocated to Victoria in about September 2013 and have lived in Victoria since that time. 

6. The father has had very limited time with the children since the children’s move to Victoria.  Notwithstanding that there are current orders that provide for him to have telephone communication with the children, the father alleges that that telephone communication is not occurring. 

7. Orders were made by consent on 7 November 2014 for the children to spend time with the father on 8 November 2014.  I understand from the submissions made by the father’s solicitor that that time did occur.  However, the father has not seen his children since about 8 November 2014.  The parenting issues give rise to very serious allegations raised against both parents. 

8. With respect to the father, there are allegations that he has sexually abused one or more of the children. 

9. The father raises serious issues as to the mother’s capacity to appropriately parent the children.

10. There are very real concerns in the Children and Parents Issues Assessment prepared by Ms B, as well as the report of Dr C, as to the mother’s parenting capacity. 

11. At the commencement of the mention hearing, I sought confirmation from counsel representing the mother that his client was willing to proceed to trial on the basis of the evidence that is now before the Court.  In particular, I drew his attention to the fact that the report of Ms B was not a full Family Report but a Child and Parents Issues Assessment.  The matter was stood down to enable counsel for the mother to obtain instructions from his client.

12. Upon the resumption of the mention hearing, an oral application was made by counsel for the mother for the proceedings to be adjourned on the basis that there should be a full Family Report.  Further, the mother seeks that a new family consultant be appointed to prepare such Family Report. 

13. The application for an adjournment was supported by the Independent Children's Lawyer.  It was submitted on behalf of the Independent Children's Lawyer that in circumstances where one of the parties raises concerns as to the absence of a full Family Report, that the Court should err on the side of caution and ensure that the best evidence is available to the Court, particularly in circumstances where there is a very live dispute as to with whom these children should be living.

14. The application for an adjournment was opposed by the father.  The concern he raises is that he has not seen the children for some considerable period and an adjournment will further extend the period in which he has not seen or communicated with the children.  I share the concerns of the father in that regard. 

15. However, of greater concern to me is to ensure that the best possible evidence is available to the Court having regard to the issues before the Court.  That concern is bolstered by the fact that this matter is the second case listed in the week of 23 February.  There is a very real prospect that the matter will not be reached in that week.  If the matter awaits its hearing in that week and is ultimately to be adjourned, the hearing date in that event would likely be June 2015 or later. 

16. I am in a position today to make orders for the preparation of a full Family Report with a trial date on 21 April 2015.  There will be no other matters listed in that week so the parties can have confidence in the fact that the Court will be in a position to hear and conclude the matter in that week.  In the circumstances I will grant the mother’s application for an adjournment. 

17. As to the issue as to whether there should be a change in report writer, I invited counsel for the mother to make submissions and point me to the evidence which would support a change of Family Consultant.  Counsel for the mother was unable to take me to any evidence that would support the making of such an order. 

18. Two of the parties’ children have already met with the Family Consultant, Ms B, in interview.  It is important that the children’s exposure to the Court process be minimised.  Their exposure to professionals in this setting should be limited to protect and to shelter them from the impact of these proceedings.  Accordingly, I will not make any orders changing the identity of the Family Consultant.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 4 February 2015.

Associate: 

Date:  4 February 2015