Bradley and Van Veen (No 2)

[2009] FamCA 1199

FAMILY COURT OF AUSTRALIA

BRADLEY & VAN VEEN (NO. 2) [2009] FamCA 1199

FAMILY LAW – PRACTICE AND PROCEDURE – case management

FAMILY LAW – CHILDREN – interim – application by the mother seeking suspension of orders for the child to spend time with the father – where it is inappropriate to make the orders sought given the closeness of the trial – application dismissed

FAMILY LAW – CONTRAVENTION – application by the father alleging contravention – where the father is not proceeding with his application given the closeness of the trial –allegations to be pursed at trial

APPLICANT: Mr Bradley

RESPONDENT: Ms Van Veen

INDEPENDENT CHILDREN’S LAWYER: Rebecca Reed

FILE NUMBER: ADC 4961 of 2007

DATE DELIVERED: 21 July 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 21 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lee

SOLICITOR FOR THE APPLICANT: Johnston Withers

COUNSEL FOR THE RESPONDENT: Ms Dixon

SOLICITOR FOR THE RESPONDENT: A.K. Reeves & Associates

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mrs Reed

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Rebecca Reed LSC

Orders

1. That the Application in a Case filed by the mother on 22 June 2009 and the Response filed by the father on 6 July 2009 be dismissed and removed from the active pending cases list.

2. That leave is granted to the mother to call as a witness Ms R and to file and serve her affidavit of evidence in chief by 4:00pm on 21 July 2009.

3. That the Application Alleging Contravention filed by the father on 16 July 2009 be dismissed and removed from the active pending cases list.

4. That leave is granted to the father to rely at the trial on the affidavit filed on 16 July 2009 in support of the said Application Alleging Contravention.

5. That leave is granted to the mother to file and serve an affidavit in response to that affidavit of the father, such affidavit to be filed and served by 4:00pm on 24 July 2009.

6. That further consideration of the subpoena issued by the father on 7 July 2009 to V Medical Centre be adjourned to 10:00am on 27 July 2009.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4961 of 2007

MR BRADLEY

Applicant

And

MS VAN VEEN

Respondent

EX TEMPORE REASONS

1. Today was a directions hearing cum compliance check.  There are a number of issues that have been raised with me this morning, and I will deal with the more straightforward ones first.  Save and except for two comments I will make in a moment, all affidavit material has been filed in accordance with my orders and the matter is ready to proceed from that point of view.  However, Ms Dixon, for the mother, has indicated that Mr L, who was to be a witness for the mother, is now not being called because he is unavailable.

2. Ms Dixon, while dealing with the mother’s case, has indicated that her client now wishes to call one Ms R who is the child’s kindergarten teacher.  An affidavit has been prepared and she is available to give evidence.  The topic, generally, of the evidence is her observations of the recent changes in the child’s behaviour whilst at kindergarten.

3. There is no objection from the other parties, including the Independent Children’s Lawyer, to Ms R being called as a witness.  However, her affidavit has not yet been served and, of course, it may be that there are some objections to material in that affidavit.  I propose to allow Ms R to be called and her affidavit to be filed, and then, obviously, we will deal with any objections in the usual way.

4. I should also mention that the mother had filed an application in the case on 22 June 2009 seeking suspension of the current order providing for the father to spend time with the child.  There was a response to that filed on 6 July, and it came before Burr J on 7 July 2009.  His Honour refused to make the orders sought and delivered a helpful ex tempore judgment.  His Honour, though, did not dismiss the application but adjourned it to today, primarily because I am the judge hearing the trial and his Honour was concerned that if I had a different view from his Honour, that an adjournment would enable the parties to air the matter before me and deal with it on the adjourned date, namely, today.

5. I was told that the mother still wishes to pursue that application.  However, Ms Dixon has indicated to me that there is no further affidavit material on which the mother relies, and there are no further submissions that the mother makes in support of the application.  As I have indicated, I have read the relevant documents.  I have read his Honour’s ex tempore reasons and, as I indicated earlier, and I confirm now, I agree entirely with his Honour’s reasons and the outcome, namely, that given the closeness of the trial, it would be inappropriate to make the orders sought by the mother.

6. Of course, the trial is now much closer than it was when Burr J heard the matter, and indeed it is due to start next Monday.  In that circumstance I indicated concern that the mother would still be wishing to pursue that application.  She is entitled to put her position and she has done that through her counsel, but, equally, my view is that it is appropriate to dismiss that application, and I rely on and adopt the reasons given by Burr J.  They have even more force now, given the closeness of the trial. 

7. The next issue I need to comment on is this.  The father has filed an application alleging contravention.  It has not actually been formally processed, because it was only filed yesterday and, as I understand from Ms Lee, it alleges that the mother has not complied with the current orders over recent times in that she has not presented the child to the contact service for the purpose of the child spending time with the father.

8. Ms Dixon has confirmed that the mother has not presented the child as required, but her position is that there is a reasonable excuse for not doing so.  Thus the issue is joined.  I raised with Ms Lee whether her client really wishes to pursue the application, given again the closeness of the trial and the unfortunate consequence that if he did, the trial would have to be adjourned because that application would need to be heard by another judge.  I cannot take the risk of hearing it and then being disqualified if I make credit findings.

9. I stood the matter down while Ms Lee took instructions, and, sensibly, she has come back with the instructions that her client is not proceeding with that application.  However, she seeks leave to rely on the affidavit that has now been filed by the husband but not yet processed in support of that application as part of his evidence-in-chief in this case.  I propose to allow that, but then that means the mother has to have the opportunity – and I will give her that opportunity – to file a responding affidavit.

10. I will mention two other matters.  Firstly, I note Ms Lee has told me that the psychiatrist, Dr E, is available to give evidence on 6 August 2009.  Secondly, I took counsel to my order of 19 June 2009, which was a chambers order.  I am told that neither party has any objections to the evidence contained in the affidavit material of the other party, or to be relied upon by the other party.  That, of course, is subject to Ms Lee sighting the affidavit of Ms R.  There may be something arising out of that affidavit, but I am pleased that there are no objections that I have to deal with, and the parties still have time to file their outlines and lists of documents to be tendered.

11. Just pausing there, I perhaps should make some remarks just so the father’s position is quite clear on the transcript in relation to that contravention application.  As I understand his position, he is only seeking that that be dismissed because of the prospect of the trial being adjourned if that proceeded.  That is not intended, as I understand it, to be taken as any retreat by the father from the allegations that he makes, and those allegations will be pursued in the trial, given that I am permitting his affidavit to be relied on as part of his evidence-in-chief.

I certify that the preceding 11 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 21 July 2009.

Associate