Cameroon & Darcy (No 2)

[2009] FamCA 1332

FAMILY COURT OF AUSTRALIA

CAMEROON & DARCY (NO. 2) [2009] FamCA 1332

FAMILY LAW – CHILDREN – Mother to deliver child up to father

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: 17 November 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 17 November 2009

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 Boehm

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

UPON NOTING

In view of the child currently suffering a urinary tract infection and having medication, the mother will deliver the said medication to the child’s school this afternoon and any script for that medication on the basis that the mother makes no attempt to see or speak to the said child when she delivers the medication and script to the school.

Order

1. That the mother have leave to issue a subpoena to SAPOL seeking production of all documentation since 30 June 2007 including antecedent reports, apprehension reports and offender history in relation to the father MR CAMEROON born … 1969 and all documents in relation to all reports made by the mother MS DARCY born … 1964 since 30 June 2007 concerning the child … born … July 1998, such subpoena to be issued by 24 November 2009 and be returnable before a Registrar at 9:30am on 2 December 2009.

2. That by 4:00pm on 15 December 2009 the mother lodge with Justice Strickland’s associate and provide copies to the father’s solicitors and the Independent Children’s Lawyer statements of the proposed evidence of Detective N, Ms H, Ms W, Ms L, the children’s contact service worker NE, Mr E and Ms M SAVE AND EXCEPT that in the event that the mother is not able to obtain a statement from any proposed witness the mother is to lodge and serve a statement of her own setting out the evidence that she proposes to lead from that witness.

3. That the time for the mother to file and serve her affidavit of evidence in chief be extended to 4:00pm on 1 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 1 February 2010.

5. That by 4:00pm on 15 December 2009 the mother file and serve an affidavit annexing a report of Dr J.

6. That leave is granted to the mother to issue a subpoena to the Relevant Officer at the Women’s and Children’s Hospital seeking production of all hospital notes taken on 24 July 2007 in relation to the child … born … July 1998, such subpoena to be issued by 24 November 2009 and returnable before a Registrar at 9:30am on 2 December 2009.

7. That the Final Orders Application and Response be adjourned part heard to resume at 9:00am on 4 February 2010.

8. That further consideration of the Amended Initiating Application filed by the mother on 9 June 2009 be adjourned to 9:00am on 4 February 2010.

9. That forthwith the mother deliver up to the father the child … born … July 1998, such delivery up to be effected by the father attending the child minding service at this Court and the child leaving with him.

10. That the mother be restrained from attending at the child minding service when the child is collected by the father today.

11. That further consideration of the Application in a Case filed today by the father be adjourned to 11:00am on 24 November 2009.

12. That any responding documents to that application be filed and served by the mother by 12:00pm on 23 November 2009.

13. That on Monday 23 November 2009:

    a.   the mother collect the said child from her school at the conclusion of school on that day;

    b.   the mother deliver the said child to the school for the purpose of the arts night performance involving the said child;

    c.   both the mother and the father be permitted to attend at the said school for the purpose of and for the duration of the said performance;

    d.   at the conclusion of the said performance the said child is to be returned to the father’s care in accordance with the current order which is then to continue.

14. That paragraph 4(a)(i) of the order made on 16 July 2009 be varied such that the time that the child is due to spend with the mother pursuant to that order from the conclusion of school this Friday until the commencement of school on Monday be suspended.

15. 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. This matter was before me today on a continuation hearing. I have addressed, again, the issue of witnesses and subpoenas to be issued, and there are a number of further witnesses that the mother wishes to call, and further subpoenas that she wishes to issue.

2. There is no change to Mr Charman’s position in terms of witnesses, namely, his client will give evidence. However, it has been identified that his client is relying on a report of a Mr B, and the mother requires the author of that report to be available for cross examination. I do not propose to make any order about that but Mr Charman will need to make the arrangements for the author of that report to be available for cross examination.

3. Mr Boehm has not changed his position in relation to witnesses on behalf of the Independent Children’s Lawyer, namely, Dr A, will be the only witness called, and as I think I said - if I have not, I say now, obviously - she is the family consultant in this case, and in the normal course of events the court would call her and make her available for cross-examination by everybody, including the Independent Children’s Lawyer.

4. Unfortunately, the mother has not been able to comply with some of the orders that were made on 9 September 2009.  It was intended that the mother would have obtained statements from her proposed witnesses identified on that occasion, and I would be able to make an assessment today as to which of those witnesses, if any, could be called, and make orders for the filing of affidavits. As I say, the mother has not been able to complete that exercise, and she needs further time to do so, and also, as I say, there are further witnesses identified. Now I propose to give her four weeks to complete that exercise but that will be her last opportunity.

5. I have also indicated to her that where there is a proposed witness from whom she is not able to get a statement, ie, the headmaster, for example, then she will need to present a statement of her own, setting out the evidence that she wishes to lead from that particular witness.

6. I note that the mother now has the report of Dr J, but she has not filed it yet.  I propose to make an order about that. I also propose to give the mother a further opportunity to issue subpoenas. The mother did not take up the leave that I gave on the last occasion, and as I have said, that has wasted the Court’s time, but the mother’s position now is, she wishes to still issue a subpoena to SAPOL, and I propose to give her one more opportunity to do that. However, she no longer wishes to issue the subpoena to Families SA.

7. In the circumstances, it’s not necessary for either party to file and serve their affidavits of evidence in chief by 4:00pm on 27 November 2009, and I propose to extend the time for that to be done.

8. That deals with all but one of the issues that were intended to be dealt with today. What I have just recalled is that I was intending to deal with the mother’s amended initiating application, filed 9 June 2009. Mr Charman will remember this. 

9. The submission was made to me that that is an application that cannot be made and should be dismissed.  It relates to child support. Now, I did not have time on the last occasion to deal with that, and I wanted to give the mother an opportunity to do so, and that is why I adjourned it to today. Unfortunately I have no more time to deal with that today either. It is not an urgent matter, but it needs, obviously, to be dealt with before we reach the trial in this case.  Thus I propose to further adjourn that issue to the adjourned date in February 2010.

10. Now just to complete these remarks about this continuation hearing, I note that the mother has now filed, by way of an affidavit, a minute of the orders that she seeks in this case by way of final orders. 

11. Separate to the continuation hearing, the father, today, has tendered an application in a case, seeking an order, or orders, including that the mother forthwith deliver up to the father the infant child, and then other orders consequential upon that. 

12. The father has also tendered an affidavit in support of that application which tells me that the child was due to be with the mother until 6:30pm last Friday pursuant to the existing orders of this Court. The handover, in the usual way, was to take place at the Children’s Contact Centre. The father attended. He was told by the staff there that the child would not be returned to him. He spoke to the police. On Monday, he checked with the child’s school.  The child was not at school. He has no idea where his daughter is. He does not know where the mother lives. 

13. He deposes that this is not the first time that the mother has failed to comply with the Court orders. The mother has been dealt with by the Family Court and the Federal Magistrates Court for breaches of court orders, for refusing to hand over the child in accordance with the Court orders. On at least two occasions, the mother has been ordered to be imprisoned because of her ongoing refusal to obey Court orders.

14. The mother has appeared today. She has brought the child to Court today, and the child is currently in the child minding centre at this Court. She opposes the order sought by the father but she has not filed any documents whatsoever, albeit she has had ample opportunity to file an application seeking for example a variation, or even a discharge, of the current order. Nevertheless I have permitted her to say some things to me from the bar table today.  What she said is the child does not want to return to the father, that the child has a urinary tract infection, and she wants the child interviewed by a psychologist today.

15. The position of the Independent Children’s Lawyer is that I should make the orders sought by the father, and that there is no basis for doing anything other than that and then adjourning the matter for as brief a time as I can, in accordance with my list, and give the opportunity to the mother to file answering documents. His position was quite clear though, that in the meantime, the child should be returned to the father, and indeed, the time that the child is due to spend with the mother this weekend should be suspended because of the time that the child has been away from the father, when she should have been with him pursuant to the current order. Further the Independent Children’s Lawyer indicated that there was no need, today, for the child to be interviewed.  The father’s position is obviously the same.

16. However, Dr A, family consultant, has had a long history with this case, and I was able to arrange for her to attend Court. I explained to her what the situation was, and asked her view as to whether it would be appropriate or not for her to interview the child before any orders were made today.  She said that from her knowledge of the history of the matter, her previous interviews with the child, and her reports in this matter, she was of the view that there was no basis for her to interview the child today, and that the orders that I proposed should be made, and if necessary, once proper documentation was before the Court, and the issues were joined, she would be available to carry out any order that I considered appropriate, at that point.

17. Given all that, and given my knowledge of the history of this matter, in my view the child should be immediately returned to the father.  The father is able to take the child to the doctor if necessary, and the father is able to take the child to and from school, which the mother has not been doing.

18. There is no affidavit material before me from the mother.  As I say, she has had ample opportunity if this was a situation which required it, for her to file an application and a supporting affidavit, and bring the matter to a head.  She has chosen not to.  The only application and affidavit I have before me is that of the father’s and I also put great store in what the Independent Children’s Lawyer says to me about this matter, and also what the family consultant says.

19. The next issue is what I do about this coming weekend.  That is not a difficult exercise for me, because the child has been removed by the mother, and not permitted to be with the father pursuant to the current order over the last three or more days.  The child should now remain with the father until next week, and particularly until I can get back to this matter, which, in fact, will be next week.  Thus I propose to suspend the current order insofar as it provides for the child to spend time with the mother over the forthcoming weekend.

20. Separate again to that, I made an order on the mother’s application on 12 November 2009, providing for both parties to attend an arts night performance last Friday.  That did not occur.  It was cancelled because of the heat, as I understand it, and it has been rearranged for Monday 23 November 2009.  The mother seeks the same opportunity to attend that performance, and also to prepare the child for that performance.  The father does not agree with that.  The Independent Children’s Lawyer supports the mother’s position and as far as I am concerned, that is what should happen.  It is appropriate for the child to be collected from the school at the conclusion of school that day, the mother prepare the child for her performance, take her to the school, and both parties attend that performance.  At the conclusion of the performance, the father will take the child home with him in accordance with the ongoing order.

21. I note that the child is currently suffering from a urinary tract infection, and has medication for that.  The mother will deliver that medication, and any script for that medication, to the child’s school this afternoon, on the basis that the mother makes no attempt to see or speak to the said child when she delivers the medication and the script to the school.

22. Before I forget and so it is recorded in some way, I want to add to my earlier reasons in relation to the continuation hearing, that the mother seeks to rely on the remarks of Magistrate Snopeck of 24 September 2009 in relation to certain criminal charges against the father dealt with on that day. There is no objection to the mother relying on those comments by either the father or the Independent Children’s Lawyer, and thus I will allow it.

I certify that the preceding 22 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 17 November 2009.

Associate