Cameroon and Darcy

[2010] FamCA 96

FAMILY COURT OF AUSTRALIA

CAMEROON & DARCY [2010] FamCA 96

FAMILY LAW – CHILDREN – Procedural adjournment

Family Law Act 1975 (Cth)

APPLICANT: Mr Cameroon

RESPONDENT: Ms Darcy

INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

FILE NUMBER: ADC 928 of 2007

DATE DELIVERED: 11 January 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 11 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Charman

SOLICITOR FOR THE APPLICANT: Ian Charman & Associates

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Croft

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

Orders

1. That the father deliver the child … born … July 1998 to the home of the maternal grandmother Mrs Darcy Snr at her address at 10:00am on 12 January 2010.

2. That the mother is restrained from attending at the home of the maternal grandmother for the purpose of collecting the child on 12 January 2010 until 10:30am on that day.

3. That the time for the mother to comply with paragraphs 2, 3 and 5 of the orders made on 17 November 2009 be extended to 4:00pm on 9 February 2010.

4. That the time for the father to file and serve his affidavit of evidence in chief be extended to 4:00pm on 9 February 2010.

5. That paragraphs 2, 3 and 4 of the Application in a Case filed by the father on 1 December 2009 and the Response filed by the mother on 11 January 2010 be adjourned to 9:00am (SA time) on 4 February 2010.

6. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 928 of 2007

MR CAMEROON

Applicant

And

MS DARCY

Respondent

EX TEMPORE REASONS

1. Today was the adjourned hearing of this matter and, specifically, today is the day to further consider the father’s application filed on 1 December 2009, in effect, seeking orders that the current orders allowing for the child to spend time with the mother be suspended until further order. The mother has handed up a response which seeks orders for my disqualification, the removal of the Independent Children’s Lawyer and all barristers instructed by him, and also seeking the removal of the father’s lawyer. 

2. That is a response which was only provided to everyone today, and as Mr Croft says it is totally inappropriate for this litigation to be conducted in this way, and the mother is extremely fortunate that, at the end of the day, both Mr Charman and Mr Croft have allowed those documents to be received by me. My position though is that I am not prepared to deal with that response today, and I propose to list that on the adjourned hearing date. Neither Mr Croft nor Mr Charman seek the opportunity to file any responding documents, and I can understand why, as I have said, and I repeat, my preliminary view is that the response is frivolous. 

3. And I say that having read obviously all the documents that have been filed to date and reading today the affidavit in support of those orders.  Thus I do not propose to spend much time in dealing with it on the adjourned date, but I will obviously give the opportunity to the mother to make submissions in support of it and hear any submissions in response, and make a decision at that time.  Of course I allow for the fact that my preliminary view can be changed with a fuller consideration of the issues that the mother is promoting. 

4. In terms of the application of the father though today, the mother opposes that.  The Independent Children’s Lawyer is in a difficult position because his counsel is not available and he has not had the opportunity to speak to Dr A, the family consultant, in this case.

5. I indicated a preliminary view about this application, namely that the current orders should not be suspended at this time, and that the order insofar as it provides for the balance of the school holidays be left in place.  Those orders provide for the child to spend time with the mother, and the child has had the opportunity to do that with the father for the first half and a bit of the school holidays. 

6. The mother initially proposed to take the child to Melbourne. Those plans have changed, and the plan at the moment is for the child to spend a week with the mother in Queensland and then either to return to Melbourne or to return to Adelaide for the balance of the school holidays, and then pursuant to the order of the court the mother says that she will return the child to the school and not do anything to prevent the child being collected from the school on that first day by the father. 

7. The father’s application for suspension is an application that is not made lightly, and I have not treated it as such. I can understand entirely the father’s thoughts, and I have some sympathy with them given my recent experience with this matter and, in my view, the blatant breaches of orders of this Court by the mother in failing to return the child pursuant to the orders of this court. I was tempted to make the orders sought, but as I say I do not want to punish the child for the failings of the mother. The child should have the opportunity to spend the balance of the school holidays with her mother, but the mother is on notice that if the orders are not complied with then I will have no hesitation in suspending the orders pending the final hearing of this matter.   

8. Thus I propose to adjourn the father’s application to suspend to the further hearing of this matter, which is already set, namely, 4 February 2010. And I propose to adjourn the mother’s response to that day as well.  Hopefully I do not have to deal with the suspension application on the basis that the mother has not complied with the orders of this Court but, as I say, if she has not I will deal with that appropriately on that day and I will hear, obviously, any further submissions that need to be made about the disqualification application and the application to remove the Independent Children’s Lawyer and all the other lawyers in this case. 

9. I have also taken the opportunity today to address the preparation of this matter for trial.  The mother has again failed to comply with orders that I have made in that regard and that will lead unfortunately to further delay in this matter, but not an inordinate delay I must say.  The mother has asked for further time to comply with my orders and I will give her that time, but as with the other issue she is on her last chance.  If she does not comply with the orders in the timeframe that she now seeks, and I am prepared to grant, then I will not permit her to present the witnesses that she proposes at the trial of this matter.  It is as simple as that.  She will have had a number of opportunities to comply with the orders in that regard and the time is rapidly approaching when enough is enough and this matter will not be able to be delayed any further. 

10. Thus I propose to make orders extending the timeframe for the mother to comply with orders I made on 17 November 2009. 

11. Finally, in terms of the hand over of the child, it is agreed that the child will be handed over tomorrow at 10:00am at the home of the maternal grandmother, Mrs Darcy Snr.  The mother, though, will not be permitted to attend at that home to collect the child until 10:30am to avoid any conflict occurring between the parties in the presence of the child. 

I certify that the preceding 11 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 11 January 2010.

Associate