Darcy and Cameroon (No 7)

[2010] FamCA 533

FAMILY COURT OF AUSTRALIA

DARCY & CAMEROON (NO. 7) [2010] FamCA 533

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – application by mother to spend additional time with child – child lives with father – current orders amended

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: 28 May 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 28 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boehm

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

Orders

1. That the Amended Application Alleging Contravention filed by the father on 15 March 2010 and the mother’s response to that application be listed for hearing not before 10:00am on 2 August 2010.

2. That the mother have leave to issue subpoenas to give evidence to Ms W (school Chaplain), Mr E (school Principal), Ms YG (Catholic Education Office), and Detective Sergeant MI (SAPOL), such subpoenas to be returnable at 10:00am on 2 August 2010.

3. That the Independent Children’s Lawyer file and serve a report from the Z Children’s Contact Service detailing the observations of the workers at that centre in relation to this matter on the dates referred to in the father’s said Amended Application Alleging Contravention, such report to be filed and served by close of business on 9 July 2010.

4. That the mother file and serve an affidavit of evidence in chief of Ms CE such affidavit to be filed and served by close of business on 9 July 2010.

5. That the said applications and responses be adjourned to 10:30am on 14 July 2010 before Registrar Thomas for the purpose of a compliance/ directions hearing.

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 back before me today, having been adjourned from 17 May 2010. The issue that is being addressed is the listing of the father’s Amended Application Alleging Contravention filed on 15 March 2010. 

2. The father has indicated he wishes to proceed with that application. I expressed concern about that on the last occasion. Nothing has happened to change my view about it, but the application needs to be dealt with and, if it means a hearing of several days, the parties can have that, but it is not going to prejudice any other matter which has priority in this court, and I will come to what I mean by that in a moment. I am not going to require the Independent Children’s Lawyer, or even request the Independent Children’s Lawyer to take a part in the proceeding. The parties can fight it out between themselves and a Judge can make a decision at the end of the day.

3. In terms of its listing, the application will now be listed for hearing in the fortnight commencing 2 August 2010. It will be a reserve matter, and that is what I mean by my earlier comment that this matter will not take precedence over other matters which have greater priority, and so it is a matter of it being in the list but with no guarantees of it being heard at that time.

4. As I expressed, and I confirm, because both parties are still in person, what that will mean is if it is heard, well and good, if it is not, it will further delay and put back the final hearing in relation to the future arrangements for this child, and this child will continue to suffer the detriment of exposure to the conflict between the parties. Neither party seems to be able to recognise that and, particularly in this instance, the father does not, and I have made a note of that, and that will clearly be a factor, a relevant factor, in the ultimate hearing whenever that occurs in this case. 

5. Thus 2 August 2010 is the date, or the start of the listings. When, in that two-week period, it will be heard, will be a matter of what happens with other cases. I can indicate that on 14 July 2010 there will be a hearing of all matters in that list, including this one before Registrar Thomas.

6. In terms of the witnesses and affidavits and subpoenas, just to confirm the position reached on the last occasion, the father is giving evidence himself. He is not proposing to call any other witnesses and his affidavit is on file.

7. With the mother, she is opposing the application and looking to set up a reasonable excuse for the contraventions alleged. She will give evidence herself and, on the last occasion, I identified - well, she identified for me and I have noted, that the two affidavits filed by her on 28 April 2010 comprise her affidavits in support of her response.

8. On the last occasion the witnesses that the mother proposed to call were identified. I note now that with one of those witnesses, namely Ms FD, the mother has had extraordinary difficulty in arranging even to speak to her, and the mother therefore is not in a position to present her as a witness. Thus I remove her from the list of witnesses that will be called by the mother.

9. I made an order that the mother prepare subpoenas to those persons who we identified on the last occasion would need subpoenas. The mother has done that, and she has the subpoenas here today. The only thing missing in those subpoenas is, of course, the return date of those subpoenas, and I have indicated to the mother that she can complete those subpoenas by inserting 10:00am on Monday 2 August 2010 as the date for their return. 

10. The mother needs to appreciate that when those subpoenas are served, she will need to indicate that that date is a nominal date only. That is not the date that they all need to attend court. The responsibility is on the person issuing the subpoena to advise the recipient of the subpoena of the precise date when the matter will start. As I have said, it will start some time in those two weeks, depending upon what happens with the cases that are ahead of it. 

11. The usual process is for the mother to keep in touch with them be telephone or otherwise and give them notice as to the precise day that they will need to give their evidence, but that is a matter for her.

12. There are two witnesses for whom the mother is able to provide affidavits. They are firstly Ms FD, but she is no longer a witness to be called, and secondly, Ms CE. The mother has received a letter, or an email from Ms CE which the mother is able to translate into the form of an affidavit. She is able to do that within the next week or so, and I will make an order about a timeframe for that to be done.

13. I also confirm that the mother wants to call Ms E, but there is no need for a subpoena or an affidavit because there is already an affidavit of hers on file in relation to the issue that is in dispute.

I certify that the preceding 13 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 28 May 2010.

Associate