Bradley and Cooper (No. 3)

[2008] FamCA 586

FAMILY COURT OF AUSTRALIA

BRADLEY & COOPER (NO. 3) [2008] FamCA 586

FAMILY LAW  -  parenting application  -  re-opening case after undefended hearing

Family Law Act 1975 (Cth)
FATHER:	Mr Bradley

MOTHER Ms Cooper

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 2151 of 1999

DATE DELIVERED: 22 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 22 July 2008

REPRESENTATION

SOLICITOR FOR THE FATHER: Mr. Saunders

SOLICITOR FOR THE MOTHER: Mr. Brooks

THE INDEPENDENT CHILDREN'S LAWYER

Ms E.M. Whittaker

Victoria Legal Aid

Orders

1. That pursuant to s.62G(2) of the Family Law Act 1975 an updated Family Report be prepared and released before 17 October, 2008.

2. That  IT IS REQUESTED  that the family consultant preparing the updated Family Report read the following documents prior to meeting with the parties or the children of the marriage K born … April 1993 and E born … March 1996 :

   (a)judgment delivered herein on 15 January, 2008;

   (b)judgment delivered herein on 14 May, 2008;

   (c)judgment delivered herein on 22 July, 2008;

   (d)affidavit of the father filed on 15 July, 2008;

   (e)affidavit of the mother filed on 22 July, 2008;

   (f)any material produced pursuant to a subpoena or subpoenae directed to a school attended by K or E;

   (g)the DHS file or such parts of it as she/he considers relevant; 

   (h)any transcripts of evidence on the court file;  and

   (i)such other material on the court file or produced pursuant to subpoena which, in the absolute discretion of the family consultant, she or he deems relevant.

3. That the mother provide to the family consultant a copy of the tape-recorded changeover referred to in paragraph (10) of her affidavit filed on 22 July, 2008 and the family consultant listen to that recorded changeover prior to meeting with the parties and children. 

4. That the mother provide copies of the tape recorded changeover to the independent children’s lawyer and the father’s solicitors as soon as practicable. 

5. That the updated Family Report address (in addition to other matters considered relevant to the competing residence applications of the parties) the alleged change in the views of one or both of the children since the earlier Family Report and the potential effect on either or both of the children of the father’s admitted failure to return the children to the mother as provided in the final orders made herein on 14 May, 2008 on every occasion since those orders were made. 

6. That the competing applications for final parenting orders be otherwise listed for mention, by telephone, at 9:30 am. on 17 November, 2008.

7. That the reasons for judgment this day be transcribed and a copy made available to the parties. 

8. That a transcript of the hearing this day be prepared and placed on the court file. 

9. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel.

AND THE COURT NOTES

A. That the orders made herein on 14 May, 2008 remain in full force and effect.

B.That the father failed to comply with paragraph (1)(b) of the orders made herein on 24 June, 2008, which required him to set out in an affidavit sworn by him all times he has had with K and E since orders were made herein on 14 May, 2008.

C.The solicitor for the father acknowledged that the father did not contest those parts of the affidavit of the mother filed on 22 July, 2008 which set out the days, times and places at which changeovers have occurred since final orders were made herein on 14 May, 2008, but does contest evidence relating to the circumstances surrounding such changeovers. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2151 of 1999

MR BRADLEY

Father

And

MS COOPER

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I will not repeat the background to this matter, which relates to residence of K (15) and E (12).  I make it clear that the parenting orders in force are the orders of 14 May 2008.  I repeat what I said on the last occasion, which is that those orders are to be complied with.  The court will deal, in due course, with any applications that arise from non‑compliance but the parties must realise that their compliance with court orders is a factor to be taken into account when determining their respective understanding of parental responsibility.  A failure to comply with court orders models a lack of respect for authority and the law, an example which is potentially disastrous for boys of these ages.

2. The father has now been given an opportunity to file an amended response, which he did on 11 July 2008.  He seeks that K and E live with him.  He also seeks an order that the children spend time with their mother on alternate weekends, half of school holidays and on special days.  He seeks the preparation of an updated family report and directions for trial. 

3. The independent children's lawyer's position now, having regard to the material to which she has had access, is that she seeks little change to the orders of 14 May 2008 save, possibly that the boys’ weekend time with their father be extended to the Monday, to provide for the boys to go to school from their father's home.  She does not support a fresh trial, so does not seek an updated family report. 

4. I accept that to be the ICL’s position now.  However, the horse has bolted.  The case was relisted after the court realised that the ICL had not been advised of the undefended hearing date.  It was the ICL’s submission then that the father should be given a further opportunity.  That having occurred it is not now appropriate to deny him that opportunity.  I accept her position altered after reading the reasons for judgment and the additional evidence given by the mother at the undefended hearing, and those matters may inform her eventual submissions. 

5. From the mother's perspective, there should be no fresh trial.  Her submission is that the father was given an opportunity to put his case to the court and declined to do so, resulting in an order for an undefended hearing.  Only the inadvertent failure to give notice to the independent children's lawyer of that undefended hearing gave him the opportunity to be heard.  She does not support the preparation of an updated family report. 

6. I do propose to order an updated family report.  I will have inquiries made as to Ms C’s availability, and include a report release date in the orders I make today.  I will direct that Ms C have access to all the material filed, and will specify some documents.  I note the concession made by the solicitor for the father today that the father does not dispute the mother's account of the times, day and places at which the boys have been returned to her, which are routinely inconsistent with the orders.  The father failed to comply with an express order to set out with specificity in an affidavit sworn by him, the time he has spent with K and E since 14 May, 2008.  He does not concede the accuracy of the circumstances to which the wife deposes but does concede the dates, times and places of their return.  I also propose to direct that the mother provide to the court a copy of the taped conversation to which she adverts in her affidavit filed on 22 July, 2008 and I will request Ms C listen to that tape prior to meeting with the boys and their parents.  I will also direct Ms. C to read the reasons for the various judgments delivered by me in this matter and any transcripts of evidence placed on the court file.

7. Once the family report is released, I will put in place a timetable to bring the matter on for trial.  The trial is unlikely to be lengthy.    

8. My reasons for judgment today will be transcribed and made available to the parties.  I stress again that the orders which govern the children’s time with each parent are those orders made by me on 14 May, 2008.  They remain the orders of the court until such time as they are discharged or varied.

I certify that the preceding
10 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.