Craig and Hall

[2011] FamCA 883

FAMILY COURT OF AUSTRALIA

CRAIG & HALL [2011] FamCA 883

FAMILY LAW – Case management directions for final hearing

APPLICANT: Ms Craig

RESPONDENT: Mr Hall

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7306 of 2007

DATE DELIVERED: 26 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 26 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hannan

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kent-Hughes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Septimus Jones & Lee

Orders

IT IS ORDERED:

1. THAT on or before 22 November 2011 the applicant mother instruct her solicitors to make, file and serve:

   (a)         an amended Application detailing all orders sought at the final hearing;

   (b)         her trial affidavit;

   (c)         the affidavits of any witnesses upon whom she intends to rely.

2. THAT on or before 16 December 2011 the father (who is acting for himself in these proceedings) make, file and serve the following documents:

   (a)         his detailed Response to the final orders sought by the mother;

   (b)         his trial affidavit;

   (c)         the affidavits of any witnesses upon whom he intends to rely.

3. THAT on or before 22 December 2011 the Independent Children’s Lawyer make, file and serve the affidavits and reports of:

   (a)         Mr E, Family Consultant;

   (b)         Dr W, Psychiatrist.

4. THAT if the father is able to arrange, or if the Independent Children’s Lawyer is able to so arrange on behalf of the father an updated consultation with Dr W, Psychiatrist, for the purposes of the preparation of an updated report then that is to be actioned as soon as practicable and with a copy of the report to be filed with the Court no less than seven (7) days prior to the listed hearing date of 13 February 2012.

5. THAT on or before Tuesday 24 January 2012 each of the mother and father and the Independent Children’s Lawyer make, file and serve:

   (a)         a short chronology of relevant facts;

   (b)         a brief summary of legal argument;

   (c)a letter in compliance with Rule 19.04 of the Family Law Rules 2004 as to all legal costs incurred by them in the proceedings.

6. THAT otherwise all extant applications are listed for further case management and assessment before Young J on Thursday 2 February 2012 at 10.00 a.m.

7. THAT a final defended hearing is listed as the first case before Justice Ryan commencing Monday 13 February 2012 and estimated for a hearing of three (3) days duration.

8. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

9. THAT all parties be at liberty to issue subpoenas requiring persons to attend to give evidence or produce documents to the Court (and specifically the mother’s solicitors asked for leave to subpoena police files and records) and all such subpoenas can be issued on or before 16 December 2011.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the mother and the Independent Children’s Lawyer.

IT IS NOTED

A.THAT the Court discussed the necessity for the mother and father filing an updated Financial Statement.  Each of them assured the Court that there are no financial matters before the Court to be explored at the defended hearing and that such a document was not required.

B.THAT to the extent that any financial information is reasonably required to provide an understanding of the lifestyle and needs of both children then all such information should be incorporated within the trial affidavits of both parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC7306/2007

Ms Craig

Applicant

And

Mr Hall

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This hearing is before me today on case management directions.  The matter involves a parental dispute about the two children, M, born in 2004 and G born in 2005.  M is generally known as M and has been identified throughout the family report and affidavit evidence under that given name.  The mother is represented by an experienced solicitor and Mr Hannon of Counsel appears on her behalf today.  The father, Mr Hall appears in person as he has over many previous hearings.  An Independent Children’s Lawyer has been appointed and Ms Watts is very experienced in that role and she has briefed Mr Kent Hughes of Counsel this day.

2. When the matter was last before me on 1 August 2011 I requested the preparation of the full family report pursuant to section 62G of the Family Law Act 1975 and as a consequence of that order Mr E has now interviewed the parties and other relevant persons and the children and has prepared a 20 page report dated 18 October 2011 which has been received into evidence.  I have formally read that document today and I direct that it be formally admitted into evidence and part of the court file.  I have invited Mr E to be in court for the purposes of this mention today and he has heard the parties outline their witnesses and I will incorporate that information within these ex tempore reasons for judgment.

3. Both parties have indicated that they require to cross-examine Mr E and he will be called as a witness by the Independent Children’s Lawyer.  I have confirmed his availability for the week commencing 13 February.  I indicated to him that it is most likely he would not be required before the Wednesday of that week.  Otherwise I make no further comment upon or observations of that detailed report at this stage. 

4. On behalf of the mother Mr Hannon has indicated that she will file a substantial trial affidavit.  Her witnesses will also file affidavits and presently it is intended that she will call three witnesses.  They are a former counsellor from Berry Street, Ms H, a Mr J, a former solicitor who had been engaged by the father and who is intended to be called to give evidence of personal protection and threats.  Another witness intended to be called by the mother is also giving evidence of related death threats or other such issues and that is a Mr K.  Otherwise Counsel for the mother has not outlined any other witnesses of her parental responsibility or upbringing role with the children. 

5. I have carefully indicated that there are not to be excessive witnesses and that mere supporters are of little assistance in determining these substantial children and parenting issues.  What is needed is real evidence from people who have real knowledge.

6. On behalf of the father he has indicated that he will make, file and serve within the strict time limits that I will hereafter outline affidavits from the following witnesses:-

   Ms A – godmother.
   Mr N – friend.
   Mr M – landlord.
   Mr L – previous lawyer of father.
   Father’s medical practitioner, perhaps Dr B.

7. On behalf of the Independent Children’s Lawyer, Mr Kent Hughes advised that they would call the family consultant, Mr E, and also a psychiatrist, Mr  W.  I commented to all parties that the last consultation, examination and report of Mr W, which is on affidavit before the court, is some three years old or thereabouts.  The issue of obtaining an updated report from such a busy professional is a matter of importance but it is not a matter that can or should in any way delay this trial.  There will not be any adjournment.

8. I have had the opportunity of reading the various previous orders that I have made in this case on 1 August of this year and on 28 April of this year and the opportunity to then seek and obtain a report from Dr W was clearly highlighted.  Indeed the court can go back to the order made by Riley FM on 16 September 2010 where the same issue of a report from Dr W was sought by the court.  I have not traversed the issues of who pays Dr W’s costs.  He sometimes has been known to act on a legal aid basis, subject to a quota of like cases but otherwise he is known to be extremely busy and the chances of obtaining a report from him with the upcoming Christmas period is most likely very limited.  However I again charge the Independent Children’s Lawyer with that obligation. 

9. I should also record that it was in those 16 September 2010 order that the Federal Magistrate transferred those proceedings to this court pursuant to paragraph 4 and it is said that the reason for the transfer is that the case would take in excess of four days.  I am clearly doubtful that this is a four day matter and many of the witnesses seem relatively brief in duration, leaving aside the parents and the family consultant.  Nevertheless the matter is before this court and must now remain as the parties have the opportunity for hearing the matter as a first fixed case before Ryan J on 13 February of next year.

10. I record that I have emphasised to the parties their obligations are to file documents in accordance with the timetable that I will lay out in orders that I am shortly to pronounce.  As a safeguard I will bring the matter back for mention before myself on 2 February next year and on that date this matter must be all documented, filed and ready to proceed.  There is no other alternative and I will simply accept no excuses from solicitors including the Independent Children’s Lawyer. 

11. I have previously had from the father and Counsel an estimate that this matter could take three days in duration.  I do well understand that depends upon the number of witnesses who have credible and reliable evidence to give to the court that is of assistance in determining the sole parenting and time spent with and other orders that are before the court.  The matter will be listed in a running list before her Honour and thus all witnesses must be available on short notice and certainly on the first day there should be, together with the wife, one other primary witness required.

12. I expect that when affidavits are filed the solicitors and the father will give notice as to what particular witnesses are required for examination.  It may be that some are not required to take the time of the court.  In particular I have not investigated the issue surrounding the calling of Mr J or Mr K or Mr L.  These are all either legal practitioners or witnesses of and related to some form of legal threat made against practitioners allegedly by or on behalf of the father.  I have not investigated that matter.  I make no findings and I draw no conclusions but I simply identify that that issue must be directly relevant to the parenting children matters that are before the court, including any associated irrational behaviour or violence or alleged violence.  Again, I carefully do not traverse those matters at this case management hearing.

13. The other matter that arose today is that in a somewhat obscure manner the father floated his potential bankruptcy discussions with various creditors.  I do not draw any conclusion.  The husband is not yet bankrupt.  I have generally commented upon the potential adverse situation which might arise if there is a liquidator or other professional appointed in the place of the husband.  In financial matters that, of course, would mean that he would not have a right of representation before the court other than through the appointed individual or corporate trustee.  I make no observation on such children’s matters and whether any appointed trustee would want to be so involved.  As best I understand there are continuing discussions and no action is taken and I do not foreshadow any action in that regard.  But I have stressed to the father that is a matter upon which he must keep all other practitioners closely informed.

14. I now turn to the timetable for orders that I will pronounce.  I will have these ex tempore reasons for judgment delivered, transcribed, placed upon the court file for the benefit of Ryan J and otherwise forward it to all parties.  The transcript can stop. 

ORDERS DELIVERED

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 26 October 2011.

Associate:

Date:  26 October 2011