Darcy and Cameroon (No 3)

[2010] FamCA 347

FAMILY COURT OF AUSTRALIA

DARCY & CAMEROON (NO. 3) [2010] FamCA 347

FAMILY LAW – PROCEDURAL – Interim orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Darcy

RESPONDENT: Mr Cameroon

INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

FILE NUMBER: ADC 928 of 2007

DATE DELIVERED: 25 March 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 25 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Reynolds

SOLICITOR FOR THE APPLICANT: SRG Lawyers

COUNSEL FOR THE RESPONDENT: Mr Charman

SOLICITOR FOR THE RESPONDENT: Ian Charman & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Croft

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

Orders

1. That the time for the father to file and serve the affidavit of evidence in chief of his father be extended to 4:00pm on 30 March 2010.

2. That the time for the mother to file and serve all her affidavits of evidence in chief on which she intends to rely for the purposes of the hearing be extended to 4:00pm on 30 March 2010.

3. That further consideration of the Amended Application Alleging Contravention filed by the father on 10 March 2010 be adjourned to 9:00am on 16 April 2010.

4. That upon the oral application of the father, the mother:

   a.   Forthwith remove from her Facebook page all material in relation to this case including all material that identifies either of the parties in this case and the child the subject of these proceedings;

   b.   During the period of the adjournment be restrained and an injunction is granted restraining her from posting on her Facebook page any material in relation to this case including any material that identifies either of the parties in this case and the child the subject of these proceedings.

5. That pursuant to s 62G(2) of the Family Law Act 1975 Dr A, family consultant prepare an updated family assessment report for the purposes of the trial in this matter.

6. That further consideration of the oral application by the father be adjourned to 9:00am on 16 April 2010.

IT IS NOTED that publication of this judgment under the pseudonym Darcy & Cameroon 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

MS DARCY

Applicant

And

MR CAMEROON

Respondent

EX TEMPORE REASONS

1. This matter is before me again today for two reasons, firstly to address, again, the preparation of this matter for trial, given my orders made on 10 March 2010 for the filing of affidavit material. Secondly, I adjourned all outstanding applications to today.

2. Dealing with the question of preparation for trial, there is the prospect of this matter being listed for trial in early May. There is a special sitting being arranged with interstate Judges to deal with a number of matters, and this matter is in that list. And it has been confirmed that this matter is included.

3. In terms then, of the preparation for trial, the father has complied with my orders, save and except in relation to one affidavit. There is an affidavit of his father which has been sent to Scotland where his father lives. Unfortunately, the father has not been able to access someone to take his signature on that affidavit, and it has not been able to be returned in the timeframe that my order allows. However, it is anticipated that that will be able to be filed by Tuesday next week.  With the mother, Mr Reynolds has candidly said that he has not been able to finalise his client's affidavits in the timeframe that I have allowed.

4. I will not repeat all that I have said about that, but the long and the short of it is that I am only prepared to give the mother one further opportunity to file her affidavits, and Mr Reynolds asks that there be an extension of time, to next Tuesday, for that purpose. I have indicated to him that if his client's affidavits are not filed in that timeframe, then, subject to any acceptable reason for that being the case, I intend making appropriate orders for this matter to be heard as an undefended hearing. He tells me that there are three affidavits intended to be filed, an affidavit of his client, an affidavit of his client's friend, Ms E, and an affidavit from the maternal grandmother.

5. I should mention that although, as I have said, there is the prospect of the matter being heard in early May, one issue may affect that, and that is that there has been a recommendation made by Dr A, the Family Consultant, that the parties undertake an assessment with Mr F, Psychologist, and that that be done before this matter is listed for trial. Unfortunately, the earliest Mr F can see the parties is 1 June 2010. He may be able to do it a week earlier than that, but that obviously does not assist in terms of this matter being listed for trial in early May.

6. Mr Croft, as the Independent Children’s Lawyer, has sought funding from the Legal Services Commission to meet the costs of Mr F for that assessment. The issue there is that, apparently, the cost is $1000 for each party, and the parties simply cannot afford that cost. Thus unless Legal Services are able to provide the funding, it seems that that exercise simply cannot be undertaken, and, of course, if it cannot be, then there is no need to delay the hearing. Thus obviously, that issue needs to be sorted out before 6 April 2010, when this matter is listed in a callover with a view to listing the final orders applications in May. Thus I cannot say anything else about that at the moment. I will leave that to the Independent Children’s Lawyer, and Mr Charman says that he has separately made an application on his client's behalf to the Legal Services Commission to provide funding for his client for that exercise.

7. Next, before me today is the father's Amended Application Alleging Contravention. That has not yet been formally responded to by the mother, but Mr Reynolds tells me, and I recall him telling me previously, that his client will be opposing that application and putting forward a reasonable excuse for the prima facie breaches of the orders made by this Court. Now, of course, if that is to proceed, the mother will need to file responding documents, or at least a Response.  She does not have to file an affidavit, but if she wants to set up a defence of reasonable excuse, she will need to file an affidavit in which that defence is set up.

8. In any event, I have raised with Mr Charman whether his client would still wish to proceed with that application if there is a final hearing as early as May. I have said though that I will first make some enquiries as to when such an application can be heard, and who would be able to hear it, and whether a judgment could be delivered prior to the listing of this matter, if it is going to be in May. Then Mr Charman will obtain instructions from his client and indicate whether his client would still wish to proceed with the application. Thus I propose to adjourn that application to a convenient date after 6 April 2010, to then see what the position might be with the same.

9. There is also still an ongoing issue in relation to an application filed by the mother seeking orders by way of child support. My view, as I have expressed previously, is that that is not an application that can, in fact, be made, or in any event, succeed. Mr Reynolds still has not had the opportunity to sort that out with his client, and I do not propose to deal with that any further today. Mr Reynolds will speak to his client about that, and if his client wishes to pursue it in some way, then it can easily be addressed on the next hearing. 

10. Next, Mr Charman has filed an affidavit on 22 March 2010 annexing pages, or photocopies of pages, from the mother's Facebook page. On the basis of that affidavit, and that material, Mr Charman makes an oral application for an order that the mother remove her Facebook page, or at least, that was his initial oral application. In discussing the matter further with Mr Charman, and also the Independent Children’s Lawyer, and, of course, Mr Reynolds, the alternative order that has been discussed is an interim injunction requiring, firstly, the removal from the mother's page of all material relating to this case, and including material which identifies any of the parties in these proceedings, and the child, and secondly, restraining the mother from posting anything on her Facebook page of that nature.

11. That application is opposed by Mr Reynolds.  His client is not present and he simply does not have instructions about that. He suggested that the matter could be dealt with by noting that he will advise his client to remove the offending material from her Facebook page and not to post any further material of that nature on the page. Now, although everyone accepts that Mr Reynolds will give that advice, Mr Charman's position and the Independent Children’s Lawyer’s position is that there is no confidence that the mother will act on that advice.

12. My view about the matter is that obviously I need to give the opportunity for Mr Reynolds to take instructions and to file a responding affidavit, if appropriate. However I accept the submissions of Mr Charman and Mr Croft that something needs to be done now about what seems to be conceded is an obvious breach of s 121 of the Family Law Act 1975 (Cth). I also note Mr Croft's submission that Dr A has informed him that if the child is able to access this material, that that will have a negative impact upon her. It is apparent that the child does, through a friend, access the mother's Facebook page.

13. In these circumstances I am persuaded to grant an interim injunction, but, obviously, for a short time, so that Mr Reynolds can obtain instructions, and file any documents, and make any submissions about either varying that injunction, removing it, or putting something else in place. 

I certify that the preceding 13 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 25 March 2010.

Associate