Dardelwill and Brent

[2010] FamCA 4

FAMILY COURT OF AUSTRALIA

DARDELWILL & BRENT [2010] FamCA 4

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment

Family Law Act 1975 (Cth)

APPLICANT: Ms Dardelwill

RESPONDENT: Mr Brent

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 823 of 2009

DATE DELIVERED: 13 JANUARY 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 13 JANUARY 2010

REPRESENTATION

THE APPLICANT: IN PERSON

SOLICITOR FOR THE RESPONDENT: MS PANDELLI,
MARIA BARBAYANNIS & CO

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: NO APPEARANCE

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MCCARTHY HOEY

Orders

1. That the application in a case filed by the mother filed 30 December 2009 be adjourned to 2.15pm on 21 January 2010 for a short hearing as to the interim issues.

2. That the father have leave to file and serve the response to the application for interim orders and the affidavit in support thereof.

3. That the Independent Children’s Lawyer forthwith be able to contact the mother directly by telephone to seek random drug testing arising out of the orders made on 27 November 2009.

4. That the father have leave to issue subpoenae to T Victoria Police to give evidence on 21 January to their observations as to the mother concerning drug and similar behavioural issues.

5. That the mother have leave to issue a subpoena to Sergeant F of Victoria Police in the event that she can confirm to the issuing staff that Sergeant F is willing to give evidence.

6. That the Registrar of the Court issue and arrange service by facsimile transmission subpoenae to give evidence at 2.15pm on 21 January 2010 by telephone, the following witnesses:

   (a)Senior Detective L CIU of the Victoria Police;

   (b)Ms U of the Department of Human Services (Victoria); and

   (c)Leading Constable S SOCAU of the Victoria Police.

7. That reasons for these orders be prepared and be made available to the parties and a copy be provided to Victoria Legal Aid.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 823  of 2009

MS DARDELWILL

Applicant

And

MR BRENT

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On Wednesday 13 January 2010, I made an order adjourning the application of the mother of the children who were the subject of these proceedings and directed the Registrar to issue subpoenae.  The matter was dealt with early in the morning prior to the resumption of a part-heard trial and I did not have time to give brief reasons for making the orders.  What follows are those reasons.

2. On 15 May 2008, I made orders in respect of three children, W born in September 1999, J born in July 2001 and Y born in September 2003.  In essence, the children were to live with their father and their mother was to spend time with them.

3. Subsequent to those orders being made proceedings were issued in the Federal Magistrates Court and eventually the matter was transferred to this Court.

4. On 4 November 2009 I suspended the mother’s time with the children.

5. The basis of the suspension was that the children were at risk in the care of their mother.  The sequence of events was that the youngest child who is aged six years reported having been struck by his mother with the branch of a tree.  As a result of the mandatory reporting considerations, police attended at the home of the mother and found amphetamines. In addition, the mother conceded to the police that she used amphetamines twice a day.

6. It was also asserted by the father that there was some evidence in the early stages of the investigation of trafficking in drugs.

7. On the same day I heard the matter initially, I made an order for an appointment of an Independent Children’s Lawyer.  On 12 November 2009 a firm of practitioners filed a Notice of Address for Service indicating their appointment as the Independent Children’s Lawyer.

8. On 17 November 2009, a procedural hearing took place in which a family report was ordered and the first day of the less adversarial trial was fixed before me for 25 March 2010. 

9. Notwithstanding the order of the Registrar, on 20 November 2009 I adjourned the substantive proceedings before myself at 3.00pm on 10 December 2009.

10. On 27 November 2009, the Registrar made an order by consent of the parties for the mother to undergo supervised drug testing on a random request basis.

11. When the matter came on for hearing before me on 10 December 2009, counsel appeared on behalf of the mother and the Independent Children’s Lawyer but there was no appearance on behalf of the father.  It was common ground that there had been some confusion in the mind of the solicitor for the father about whether the 10 December day was to proceed but whether the Registrar’s order was to apply. 

12. I made orders adjourning the matter to 25 March but because the mother wanted to seek a variation of the suspension of contact orders referred to above, she could not do so in the absence of the father and I gave liberty to apply in relation to interim parenting issues.

13. On 30 December 2009, returnable on 4 January 2010, the mother filed a formal application seeking to put back on foot the orders that had subsisted prior to them being suspended.  On 4 January 2010, there was no appearance on behalf of the father or the Independent Children’s Lawyer.  I accept without any reservation that the mother filed her application and served it during a holiday period as a result of which neither of the lawyers attended.  However, the mother told me on 4 January 2010 that she had spoken to the solicitor for the father and also left a message on the telephone answering service of the Independent Children’s Lawyer.

14. Because of the concern I had that no contact was taking place between the mother and the children and more particularly, the next hearing date was to be in March, I adjourned the mother’s application to 13 January 2010 and made orders for the service of notice relating to that date.

15. On 13 January 2010, the mother appeared in person notwithstanding her solicitors appear still on the record of acting for her.  She indicated that she uses them to assist her but much depends upon her financial position.  The Independent Children’s Lawyer was not at the court nor represented.  A long letter dated 12 January 2010 was provided to the court in which the Independent Children’s Lawyer indicated an application had been made for funding to appear at the interim hearing but “currently no such funding exists”.  The Independent Children’s Lawyer indicated that the lawyer was subject to the stringent requirements of Victoria Legal Aid as to the applications for “overcap funding”.  I very much accept not only the financial restrictions of Victoria Legal Aid which is a government funded body but also the commercial realities of private practice life in which it is unreasonable to expect a lawyer properly engaged, to act for nothing.  There are two problems in this case which are peculiar.  The first is that a significant amount of investigation needs to be done of a factual nature which has enormous impact upon the suspension of contact.  That investigation in a case such as this, would normally be done by the Independent Children’s Lawyer.  The second is that the mother is unrepresented and therefore does not have either the skill or capacity to actively pursue that investigative information through formal channel such as subpoenae.  It is important to understand that there is no contact occurring between these children and their mother but also that there are siblings in the mother’s care who are similarly missing out on the relationship.

16. It is arguable that the father who is also apparently legally aided does not have the incentive to expedite that investigative process having regard to the fact that he is implacably opposed to the resumption of contact as it was before I suspended it.

17. I raised these issues not so much to be critical but to draw attention to the fact that if the Court makes an order for the appointment of an Independent Children’s Lawyer and as a result of an acknowledgement of that responsibility by Victoria Legal Aid, a firm of solicitors announce their appearance, the Independent Children’s Lawyer cannot determine involvement based upon funding.  These are children whose interests must be represented whether there is funding or not.  If funding is not to be provided, the Independent Children’s Lawyer on the record must decide whether or not to continue so acting.

18. Because the relationship between the mother and the children is currently non-existent, the issues raised by the wife need urgent attention.  For that reason, I have decided that the only course open is to have subpoenae issued by the Registrar to hear oral evidence as to the state of the evidence that might be called in the future in regard to the matters that gave rise to the suspension of contact in the first place.  In making the determination to direct the Registrar to issue the subpoenae, I am left in the position where the Court has had to take a proactive role.  In my view it is unlikely that that investigative role of issuing subpoenae to produce files and documents would assist the Court and as such, I propose to have the witnesses called to give a brief overview of what is happening.  In preparation for that, I have had both the solicitor for the father and the mother herself contact various authorities and have been told that subject to the issue of a subpoena, evidence might be given.  That is not to say that either of the parties ought not be at liberty to issue subpoenae themselves to assist me determine the issue on an interim basis.

19. Because of the policy issue referred to above in relation to appearances and funding, I direct that these reasons be referred to Victoria Legal Aid for their information.

I certify that the preceding Nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  14 January 2010