Bradley & Van Veen

[2009] FamCA 560

FAMILY COURT OF AUSTRALIA

BRADLEY & VAN VEEN [2009] FamCA 560

FAMILY LAW – CHILDREN – Magellan matter – Division 12A

FAMILY LAW – SUBPOENA – issued to police regarding mother’s ex partner – objection by mother’s ex partner not made in correct form and reasons for objection unclear – evidence from counsel for the mother as to possible reason – objection covered

Family Law Act 1975 (Cth)

APPLICANT: Mr Bradley

RESPONDENT: Ms Van Veen

INDEPENDENT CHILDREN’S LAWYER: Rebecca Reed

FILE NUMBER: ADC 4961 of 2007

DATE DELIVERED: 30 April 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 30 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lee

SOLICITOR FOR THE APPLICANT: Johnston Withers

COUNSEL FOR THE RESPONDENT: Mr Stewart

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

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mrs V West

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Rebecca Reed LSC

Orders

1. That the conclusion hearing in this case commence at 10:00am on 27 July 2009 with a time estimate of 5 days.

2. That the father file and serve his affidavit of evidence in chief and the affidavit of evidence in chief of his partner Ms H by 4:00pm on 30 June 2009.

3. That the mother file and serve her affidavit of evidence in chief and the affidavit of evidence in chief of Mr T and Mr L by 4:00pm on 30 June 2009.

4. That leave is granted to the parties and their legal representatives and the Independent Children’s Lawyer to inspect and copy the documents produced by SAPOL in response to the subpoena issued by the Independent Children’s Lawyer on 30 March 2009 contained in Schedule 9 UPON CONDITION that prior to inspection by any person other than the Independent Children’s Lawyer the Independent Children’s Lawyer ‘black out’ any address that appears in those documents for Mr T.

5. That Mr P Family Consultant prepare an updated report in this case addressing the issue of the child being able to separate from his mother at the Children’s Contact Service recently, at kindergarten, and generally, and for that purpose Mr P is to interview the parties, observe interaction between the child and each of the parties, or at least the father, and further contact Ms R as to what happened at kindergarten, such updated report to be filed by 15 June 2009.

6. That pursuant to s 69ZT(3) of the Family Law Act 1975 and being satisfied that there are exceptional circumstances in this case all of the provisions of the Evidence Act 1995 specified in sub-section 69ZT(1) of the Family Law Act 1975 are to apply.

7. That further consideration of this case be adjourned to 9:30am on 21 July 2009 for directions.

8. Liberty to the parties to vacate that hearing in the event that no issues need to be addressed for the purpose of the conclusion hearing.

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. This is a matter which is in the Magellan Project. Today is the first day of trial. It is a matter which is proceeding under Division 12A of the Family Law Act 1975. The practice in relation to Magellan matters and first days is that no evidence is taken, because of the nature of the proceedings, in the way that it would be taken in a Division 12A matter, and effectively today has been a case management hearing to identify the issues and witnesses to be called, orders sought, and any further matters that might need to be addressed before the matter is listed for a conclusion hearing.

2. I have addressed all outstanding issues with counsel and taken them respectively through their client's case information documents and looked at their questionnaires.  They confirm that this matter is proceeding to trial.  It has been put to me that five days is required for the conclusion hearing, and I have identified a date in my docket when I can list it on that basis.

3. The witnesses have been identified, and I will make an order in a moment about the filing of affidavits.  One issue which needs to be addressed, though, is an updated or further report from Mr P, who has been the family consultant who has prepared a report in this case earlier this year.

4. There are two issues in relation to an updated or further report.  One is that recently the child had difficulty separating from the mother at the Children's Contact Service, and I am told that there was also a recent occasion of difficulty in separating when the child was at kindergarten.  The history of this matter is that that has not occurred before and the parties are concerned about what is causing that, particularly given that the child only has limited time with his father under the current orders, and that is obviously going to be the case until this trial is heard.

5. Thus the suggestion has been made to have Mr P interview the parties and perhaps observe interaction between the child and each of the parties, but specifically and importantly the father, and also to contact the relevant person at the kindergarten - that has been identified as a Ms R - to see if he can assess what might be causing the difficulty with the child and provide some input as to how that can be managed into the future.

6. The other issue that may need to be addressed by Mr P is that there was an order made on 16 February 2009 for Mr P as the family consultant in this case, and the family consultant in a case of A and T, to discuss with each other the issues arising from their respective assessments in order to promote discussion with or provide input to the independent children's lawyer in this case, and ultimately to the court in this case, as to how those issues may be resolved.

7. Mr T has been in a relationship with the mother and has been her partner, but that relationship has now ceased, although I am told it ceased amicably.  Importantly they are no longer living together.  Mr T was the party in that case I have just referred to of A and T.

8. As I understand it, Mr P has reported to the independent children's lawyer the result of his discussions with the family consultant in the other case, but the question now is whether there is any need for Mr P to provide an updated report as a result of the information that he has gained in that exercise.  It is unclear whether there is a need for that, but it has been agreed that the independent children's lawyer will speak to Mr P about that and then convey his views about the need to provide an updated report to the solicitors for the parties.  If there is agreement about it, then I will make an order for Mr P to undertake that updated report.  But if there's a dispute about it, then the matter will need to come back before me to sort out whether there is a need for that updated report.  If there is a need for that, hopefully it can be done at the same time as the updated report to try and ascertain what the difficulty is with the child at the moment in terms of separating from the mother.

9. The other complication, though, is that we cannot get hold of Mr P.  We do not know his availability to do an urgent update.  We also do not know his availability to give evidence on any of the dates that I have in mind for the trial of this matter.  However, I do not want to hold this matter and I am going to proceed on the basis that Mr P will be available to do an update in the near future on the topics that I have just mentioned, but also to attend and be cross‑examined at the trial.

10. I propose in a moment to make orders for affidavits to be filed and for an updated report to be prepared.  As I say, I have ascertained with the parties the witnesses that they each intend to call, and also confirmed with the parties, through the helpful document of the independent children's lawyer, as to the issues which are in dispute here and which would need to be covered as best as they can in the affidavit material to be filed.

11. Coming back to Mr T, there was a subpoena issued by the independent children's lawyer seeking updated information as to the antecedents of Mr T from the South Australian Police from a date in 2007.  His antecedents prior to that date are already before the court pursuant to an earlier subpoena that was issued.

12. Mr T apparently has objected to the production of documents pursuant to that subpoena.  It is a bit difficult though to be precise as to what his objection is, because he has not complied with the rules and formally objected in writing.  He apparently appeared at a subpoena hearing and indicated he objected and the matter was adjourned to 22 April 2009.  On that day he did not appear and the issue was further adjourned to today.  Mr T has not appeared today.  I note that a letter was sent by registered post to him on 22 April 2009 by the court advising of today's hearing and indicating that, if he did not attend, then orders may be made in his absence. 

13. On that basis, I am prepared to proceed with the issue.  I could take the course of simply disregarding his objection because it is not in the proper form, but I will not do that because I have heard some submissions about it.

14. It has been put by Mr Stewart on behalf of the mother that Mr T’s objection may be the revealing of his address in any of the documents produced pursuant to the subpoena.  Ms West has indicated that her instructing solicitor, the independent children's lawyer, would be able to black out any address that appears in the documents.  Thus it seems that would cover that objection.

15. I do not know of any other objection and therefore or any basis for it.  As far as I am concerned, I am prepared to proceed to make the usual orders in relation to that subpoena, which is to provide for inspection and copy of the documents produced pursuant to it.  I will make that order in a moment.

16. I note that the father will make available for cross-examination Dr E, psychiatrist, in relation to his report dated 27 March 2009.  I further note that the report of Dr G of 19 March 2009, which is annexed to the affidavit of the father's solicitor, is before me and will be relied upon by the father and that Dr G is not required for cross-examination.

I certify that the preceding 16 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 30 April 2009.

Associate