Darcy and Cameroon (No 4)

[2010] FamCA 351

FAMILY COURT OF AUSTRALIA

DARCY & CAMEROON (NO. 4) [2010] FamCA 351

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: 16 April 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 16 April 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. Leave is granted to the mother to file and serve the affidavit of Ms E sworn on 30 March 2010 and annexed to the affidavit of NN filed on 30 March 2010.

2. That until further order the mother 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.

3. That the Response filed by the mother on 11 January 2010 be listed for hearing before Justice Strickland at 10:00am on 23 April 2010.

4. That the Application in relation to child support filed by the mother on 9 June 2009 be dismissed and removed from the active pending cases list.

5. That further consideration of this case be adjourned to 10:00am on 23 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. The primary issue, as far as I am concerned, is having this matter listed for trial. There has been an ongoing issue which, if it occurred as everyone expected, would cause a delay to the hearing of the trial, and that is the recommendation of the Family Consultant that the parties be assessed by Mr F, Psychologist. Indeed, the Family Consultant's recommendation was that that assessment was so important that it should take place before the trial and that if that meant a delay to the trial, then so be it. I have addressed this issue again with counsel, and I have identified what a delay would mean in this case.  Thus, Dr A’s recommendation needs to be put in perspective.

2. Unfortunately, it being a recommendation from the Family Consultant, neither counsel nor myself are, frankly, entirely clear as to what is involved and what is expected and why it is so important that that assessment take place before the trial. Thus what has been discussed this morning is that this matter will be listed again on 23 April 2010, which is a day when all matters in a special sitting for the first two weeks of May are listed for callover, and in the meantime enquiries will be made by counsel of the Family Consultant as to precisely what she had in mind and what her reasons are for her recommendations in regard to this assessment by Mr F.

3. In the meantime, I have suggested to counsel that they proceed on the basis that this matter will be listed for trial in May, and given that I confirm that all affidavit material is in. However, I need to make an order giving leave to file an affidavit out of time, and I will do that in a moment. I am also told that a proposed witness of the father who resides in Scotland will now not be called, and I am also told that a witness proposed by the mother, namely, the maternal grandmother, also will not be called. Thus, from that point of view the matter is ready to proceed. There may be an issue with counsel, but that can be addressed on 23 April 2010 again.

4. Separate to that, there are some applications still outstanding. One is an Amended Application Alleging Contravention filed by the father. On the last occasion, I indicated that I would make some enquiries as to the availability of a Judge to hear that matter before a trial, if the trial took place in May. I have made those enquiries, and unfortunately there is no Judge available to hear that matter before May. Thus Mr Charman will need to take his instructions as to whether his client insists that that matter proceed or whether his client is prepared to withdraw that application on the basis that the facts involved in that issue will become the subject of evidence at the trial itself. Mr Charman will obtain those instructions and obviously let me know and let the others know what his client's position is on 23 April 2010.

5. Secondly, there is a Response filed by the mother on 11 January 2010 seeking, in effect, that I be disqualified from hearing any further applications in this case, and that the Independent Children’s Lawyer be removed, that the father's solicitor be removed, and that all the barristers instructed in the case be removed. I understood, on the last occasion this matter was before the Court, namely on 25 March 2010, that that application was not being proceeded with. Indeed, that was what the mother's counsel told me on that day. However, I adjourned the matter to today for him to take final instructions about that, and he tells me today that the mother wishes to pursue that application. Thus I need to deal with it, and I propose to deal with it on 23 April 2010.

6. Thirdly, there was the mother’s application seeking orders in relation to child support. Mr Reynolds tells me that I can dismiss that application today.

7. The next matter to note in my reasons today is that this will be his last appearance by Mr Reynolds on behalf of the mother. He has undertaken to file a Notice of Address for Service for the mother and she will be, again, representing herself.   

8. I need to also mention one other matter, and that is that on the last occasion, which was 25 March 2010, I made orders that the mother 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.  I am told today that the mother has complied with that, and that is positive and encouraging. I also made an order during the period of the adjournment that the mother be restrained from posting on her Facebook page any material in relation to this case. It seems that she has also complied with that injunction, but Mr Charman asks that that injunction be continued until further order. Mr Reynolds has submitted that there is no need for an injunction. The Act itself, namely s 121, prohibits this being done. My view about it is, though, that given the history of this matter and the behaviour of the mother, I would have no confidence that she would act in accordance with s 121 of the Family Law Act. Thus I propose to continue that injunction until further order.

9. I also note that although there is a positive aspect of that - namely, the mother seems to have complied with my order, Mr Charman tells me that there is a website which includes information about this case and names the parties, and the independent children's lawyer, and the child. There is no evidence that has been presented to me to indicate that the mother has posted that information on that website. However, Mr Reynolds is now on notice that there is such a website and he has indicated to me that he will convey that to his client. It may be that that is an issue that the father raises on the next occasion, and thus I need to, obviously, hear what the mother's position about that is on the next occasion.

10. The final issue is that there is a need in this case for an Updated Family Report from the Family Consultant, Dr A. I made an order for such an updated report on 25 March 2010. I understand that Dr A has that in hand. I obviously am aware that there are still some issues about whether the trial would proceed in May, particularly as a result of this proposed assessment with the psychologist, but I will have my associate confirm with Dr A today that she needs to complete her updated report on the basis that this trial will take place in May, at this stage.

I certify that the preceding 10 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 16 April 2010.

Associate