Casano and Antipov (No 2)

[2016] FamCA 549

FAMILY COURT OF AUSTRALIA

CASANO & ANTIPOV (NO. 2) [2016] FamCA 549

FAMILY LAW  – PRACTICE AND PROCEDURE – Application for adjournment refused.

APPLICANT: Mr Casano

RESPONDENT: Ms Antipov

FILE NUMBER: PAC 3528 of 2012

DATE DELIVERED: 7 March 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 7 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Katsinas

SOLICITOR FOR THE APPLICANT: Just Defence Criminal And Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Guterres

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW Sydney Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Rowley & Associates

Orders

1. The applicant father’s application for an adjournment is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Casano & Antipov has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3528  of 2012

Mr Casano

Applicant

And

Ms Antipov

Respondent

REASONS FOR JUDGMENT

1. This is an application for an adjournment made by the father in parenting proceedings with respect to B, a six year old child.  The parenting proceedings in the matter have been ongoing for around four years and there were five days of hearing in September 2015.  At the completion of the five days of hearing the matter was adjourned for further hearing until this week. 

2. These dates were not originally allocated in September 2015. They were dates that were subsequently fixed and it is anticipated that the proceedings should be completed this week because some fairly careful thought was put to the outstanding matters and the time that it would take. 

3. It is the father’s case in the proceedings that there are significant risks to the child’s safety and wellbeing in his mother’s care and he has consistently and persistently maintained that position since the parties separated in mid-2012. In particular, the father makes an allegation that the mother’s partner, Mr F, physically and sexually abused the child on many occasions since separation and poses an unacceptable risk of harm to the child.  That matter is, as I say, a live issue and has been referred to, including in previous judgments in relation to interim orders. 

4. At the commencement of the trial back in September 2015 a document was marked for identification (“MFI  A”) with respect to the then current state of an investigation into a matter relating to Mr F (and, in some sense, to the mother) which had been said to have been ongoing since May 2015. It is not entirely clear whether the investigation relates to one specific allegation in relation to the sexual abuse of the child or relates to a number of allegations that had been made over years. It certainly suffices to say that there have been consistent allegations by the father that the child has been sexually abused and I understand the father’s case is that Mr F has been the perpetrator of that abuse over years.

5. At that stage the proceedings were not adjourned, even though it was felt that the further step in the investigation was soon to occur. The proceedings, as I say, went ahead and it very well may have been that they were determined back in September but they were not. 

6. Today, the Court has been handed a letter under the hand of a detective, acting sergeant of Detectives.  In fact, she is the same person who wrote the email that was MFI A in the proceeding.  The letter says, “The allegations are being taken serious (sic) and the investigation has been ongoing since May 2015.  Matter is currently active and an operational phase is schedule (sic) in the week commencing 7 March 2016.”  It says this operational phase has been planned since November 2015 but was unable to have been scheduled earlier.  It goes on to say that, “It is envisaged that this operational phase of the investigation will result in corroborative evidence being obtained to progress the criminal matter and that, failing this, the investigation will be suspended due to a lack of evidence and other avenues of inquiry.”

7. The father does not file an affidavit in support of this application. The Court has no other knowledge about what the “operational phase” is “scheduled” means. The police themselves may not know what further steps are to be taken and the police also may not be aware of matters such as what is occurring, the findings of the Court at an interim stage and the like, and also may not know that the mother holds sole parental responsibility for the child at this stage.  The reality is the father simply does not know and cannot know how long this “investigation” will be and yet he seeks to adjourn these proceedings that have been ongoing for such a long period of time.

8. The father understands that the consequence of an adjournment may be that the matter may not be resolved even this year or towards the end of the year. Currently there are interim orders in place under which he is to have supervised time only with the child but, as I understand it, he has not exercised that time with the child and that very well may continue.  I simply do not know. In those circumstances, he has still elected to pursue the matter. 

9. The application is opposed by the mother, noting the length of time that the matter has been ongoing.  She certainly raises herself no issues about any risk that she may be under or Mr F may be under in terms of cross-examination on the topic and so the suggestion that in some way cross-examination by the father is being curtailed (while the mother and Mr F are investigated) is simply not an issue that arises. 

10. It is an unusual case, in that it is not the person who is the subject of the police inquiry who is seeking the adjournment. 

11. In circumstances where the child’s parenting arrangements have, in effect, been held in limbo for quite a lengthy period of time considering his age, and where there has been significant evidence about the impact of the current proceedings upon the child, in my view, it is particularly important that these proceedings are completed in a timely fashion.  It has already actually gone beyond a timely fashion and it is very important for this child that there is some resolution and some certainty and some stability in his position. 

12. In circumstances where it appears the investigation could be open-ended, we have no idea how it may proceed, and where it may be that the officer-in-charge is not fully appraised of what is occurring in this Court, I could not conclude with any certainty that that is going to happen within any particular time frame.  All of the issues of risk in relation to all of the matters that the father alleges will be able to be fully ventilated in this Court, and there is nothing that the mother puts up to suggest that they ought not be ventilated. In those circumstances, where there is no other reason why this matter should not be able to be resolved, the application for an adjournment is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 7 March 2016.

Legal Associate: 

Date:  8 July 2016