Dantes and Handley

[2008] FamCA 632

FAMILY COURT OF AUSTRALIA

DANTES & HANDLEY [2008] FamCA 632

FAMILY LAW – CHILDREN—With whom a child spends time—interim orders suspended— father to now have supervised time instead of unsupervised time—father was to communicate only by telephone—father does not accept contents of mother’s affidavits—father wishes to bring application to adduce further evidence—mother seeks injunction restraining father from approaching children at sports events—Ordered matter re-listed 28 August 2008—supervised  time—notation—not for father to proselytise/endeavour to persuade children with articles

APPLICANT: MS DANTES

RESPONDENT: MR HANDLEY

FILE NUMBER: BRF 4356 of 2002

DATE DELIVERED: 16 July 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 16 July 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Barbour, solicitor of Anthony Black Family Law Services

SOLICITOR FOR THE RESPONDENT: Ms Geysen, solicitor of Barry & Nilsson

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The father is restrained from contacting or approaching the mother or the children except as provided for by orders of this Honourable Court. 

2. The father is restrained from entering or remaining in a place of residence, employment or education of the mother or the children.

3. The father is restrained from entering or remaining in a place whilst the children are attending extra curricular activities except as provided for by the orders of this Court.

IT IS ORDERED THAT:

1. The mother is given leave to adduce further evidence being the affidavit filed on 11 June 2008 by herself and a further affidavit of Mr T filed 11 June 2008.

2. The father is given leave to adduce further evidence by way of affidavit(s) in reply within twenty-one (21) days of the date hereof. 

3. The proceedings be adjourned for case management review at 10.00 am on 28 August 2008 at the Brisbane Registry of the Family Court, Brisbane.

4. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRF 4356 of 2002

MS DANTES

Applicant

And

MR HANDLEY

Respondent

REASONS FOR JUDGMENT

1. This matter proceeded to a trial from 18 to 21 February this year.  I reserved my decision and, unfortunately, that decision has not as yet been delivered.  At the conclusion of the hearing, I put in place interim orders suspending orders that had previously been made in December 2007. The effect of the orders was instead of having unsupervised time with the children, the father was to have supervised time once every two weeks at the M Contact Centre or such other contact centre as agreed.

2. Order 6 provided for the father to communicate only by telephone with the children each Friday between 7 and 7.30 with the mother to initiate the call to the father's mobile phone.

3. On 11 June, the mother filed an application seeking leave to adduce further evidence particularised as one affidavit by herself and one affidavit by her partner, Mr T.  Those affidavits have been filed.  It is that affidavit evidence she wishes to rely on for the purposes of the reopening of the hearing.

4. I infer from the way the submissions have been made today that the father is not accepting of the contents of those affidavits and wishes to do two things:  one is to adduce his response to that and, presumably thereafter the witnesses will need to be cross-examined.  The father foreshadows that he wants to bring an application to adduce further evidence.  I gather it is on a range of fronts but one area in particular, is a report from a neuro-psychiatrist, a Dr Z, in private practice in Brisbane.  I would not contemplate giving leave to a litigant to reopen evidence until there was a specific application filed with full details of the evidence sought to be adduced. 

5. The wife’s application, in this instance, is not opposed.  Had a different approach been taken, I may well have taken a different view of this matter.  There has to be a line drawn in the sand at some point in time otherwise trials could be reopened endlessly by further developments.  However, it is not opposed. I will make an order in terms of par 1.

   ORDERS DELIVERED

6. I do not want any tangential issues, I will strike them out.  The matter is to be re-listed before me 28 August.  There were fairly perfunctory submissions made about par 4 of the application which is the mother seeking an injunction that the father be restrained from contacting the mother or approaching the children except as provided by the orders of this Court, entering or remaining in a place of residence, employment or education of the mother or the child except as provided for by the orders of this Court, entering or remaining in a place where the children are attending extra curricular activities while the children are attending such activities except as provided for by the orders of this Court.

7. The mother details, in her affidavit, that is corroborated to some extent by her partner, the father attending at soccer games, at swimming pools and the consequences of that on the children.  The father has also been giving the children various articles according to the mother.

8. The application is opposed.  The view that I take is that the order of 21 February 2008 was quite specific, the father was to spend supervised time once every two weeks at the M Contact Centre.  I do not make those orders lightly.  I made it on the basis of the submissions at the time.  By paragraph 6 the only other communication was by telephone once a week.  The father has taken it upon himself to turn up at soccer matches and swimming pools.  I will make an order in terms of paragraph 4 of the application as filed.

ORDERS DELIVERED

1. I will not make an order because it was not sought about the father handing documents or newspaper clippings or articles to the children but I would be critical of that sort of conduct.  It is not for him to proselytise and to endeavour to persuade the children with various articles no matter how worthy they be.

   RECORDED  :  NOT TRANSCRIBED

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:  16 July 2008