Department of Family and Community Service and Hampton & Anor; and; Hampton and Heath & Anor (No 2)

[2015] FamCA 1053

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY & COMMUNITY SERVICE & HAMPTON AND ANOR
AND
HAMPTON & HEATH AND ANOR (NO 2) [2015] FamCA 1053

FAMILY LAW – PRACTICE AND PROCEDURE – Application to vacate the trial dates – Non-compliance with trial directions and pending criminal proceedings – where long-standing proceedings and hearing due to commence imminently – Trial dates vacated

APPLICANT: Department of Family and Community Services

RESPONDENT MOTHER: Ms Hampton

RESPONDENT FATHER: Mr Dale

FILE NUMBER: PAC 4622 of 2014

AND

APPLICANT MOTHER: Ms Hampton

RESPONDENT FATHER: Mr Heath

INTERVENOR: Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Mr Tiyce

FILE NUMBER: NCC 815 of 2012

DATE DELIVERED: 26 October 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 26 October 2015

REPRESENTATION

COUNSEL FOR THE MOTHER: Ms Friedlander

SOLICITOR FOR THE MOTHER: Sharon Payne Family Lawyers

COUNSEL FOR THE FATHER, MR HEATH: Mr Tully

SOLICITOR FOR THE FATHER, MR HEATH: Adams & Associates

COUNSEL FOR THE FATHER, MR DALE: Ms Murphy

SOLICITOR FOR THE FATHER, MR DALE: Gonzalez & Co

COUNSEL FOR THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES: Mr Morley

SOLICITOR FOR THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES: Crown Solicitor’s Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mahony

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Tiyce of Tiyce Partners Lawyers

Orders

1. The hearing dates of 26, 27, 28, 29 and 30 October 2015 are vacated and the proceedings are to be listed for a further five days on a date to be fixed by the List Clerk.

Leave to Approach the List Clerk

1. Leave is granted to the parties to approach the List Clerk for the allocation of trial dates when appropriate noting it is a five day matter.

Trial Directions

1. All parties are to file and serve any amended application or response upon which they intend to rely by no later than 28 days before the commencement of the trial.

2. Each party file and serve one consolidated affidavit of their evidence in chief and one affidavit from each of the witnesses upon which they rely in support of the orders sought by them with such affidavits to be in compliance with Rule 15.12 of the Family Law Rules 2004, by no later than 28 days before the commencement of the trial.

3. None of the parties may rely on any documents filed other than in compliance with these orders without leave of the Court and in the event of non-compliance with these filing directions the Court will at its discretion either vacate the trial dates or list other matters with priority.

   Other court proceedings

4. Court records of any relevant criminal matters or Apprehended Violence Order proceedings will be required.  The parties are to advise the Independent Children’s Lawyer within seven days of the relevant dates and proceedings of any matters in which they were involved and the Independent Children’s Lawyer is to obtain all relevant court records through a request made by the Registrar.

5. The Independent Children’s Lawyer will continue to monitor any criminal or Apprehended Violence Order proceedings involving any of the parties right up until the trial date and obtain all relevant court reports.

Subpoenas

1. Each party is at liberty to issue such subpoena as they consider relevant to the issues in these proceedings and such subpoena shall be made returnable no later than 14 days before the commencement of the trial and must be inspected prior to the first day of the hearing.

Liberty to Re-List

1. The parties or either of them and the Independent Children’s Lawyer have liberty to re-list the proceedings for mention before a Registrar in the event of issues arising in relation to preparation for trial.

Notice to Report Writer

1. As the parties have indicated they wish to cross-examine the Family Report writer, the Independent Children’s Lawyer shall provide written confirmation to the Family Report writer within 14 days from the date of allocation of trial dates.

Joint Chronology: Parenting

1. The parties are to jointly prepare a chronology as facilitated by the Independent Children’s Lawyer which is to be filed not less than 7 days prior to the commencement of the trial.

Joint Statement of Issues: Parenting

1. The parties are to jointly prepare a Statement of Issues as facilitated by the Independent Children’s Lawyer which is to be filed not less than 7 days prior to the commencement of the trial.

Outline of Case: Parenting

1. Each party file and serve an outline of case document not less than 7 days prior to the commencement of the trial setting out:

   1.a precise Minute of Orders sought;

   2.a list of documents to be read in their case;

   3.a brief summary of argument touching upon the matters set out in s 60CC of the Act with reference to the relevant evidence relied on;

   4.a list of authorities to be relied upon.

Readiness Check

1. That the proceedings be listed for a readiness check before a Registrar on a date to be fixed not less than 14 days prior to the hearing and if the matter is not ready for hearing the matter is to be transferred before me.

Hearing Fee

1. In the event of any applicable setting down and/or hearing fee not having been reduced on the basis of financial hardship, the parties shall pay any such fee equally no later than 21 days after the allocation of trial dates by the List Clerk.

Substance Abuse Testing

1. The Applicant mother and the Respondent father Mr Heath shall be subject to such testing with respect to substance abuse as directed by the Independent Children’s Lawyer.  In the event that the Independent Children’s Lawyer elects to proceed with urinalysis, the following orders will apply:

   1.The party is to undertake (by provision of urine screen in accordance with the Australian/NZ Standard 4308:2008 or any subsequent approved standard) urinalysis for drug screening within 48 hours of a request to do so from the Independent Children’s Lawyer with such request to be communicated by email, SMS or facsimile transmission to the solicitor for the party or the party directly and provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same. For the purposes of this Order each party if unrepresented shall within 24 hours provide to the Independent Children’s Lawyer details of their mobile telephone number, email address if available and facsimile number if available.

2. In the event that the Department of Family and Community Services are able to fund hair follicle testing, the Independent Children’s Lawyer may direct the mother and Mr Heath to participate in that form of testing.  In the event that hair follicle testing is sought, the following orders will apply:

   1.Within 21 days of a request by the Independent Children’s Lawyer and thereafter on no more than one occasion in each three calendar months the requested party shall submit himself/herself for hair follicle testing and provide such hair and hair follicle samples as directed by Occupational Toxicology Services Pty Ltd for the purposes of analysis of drug use in relation to Methadone Metabolite, Opiates, Amphetamine type substances, Benzodiazepines, Cannabinoids, Cocaine Metabolite, Barbiturates, and Buprenorphine (or any one of these drugs).

   2.The Applicant mother and the Respondent father Mr Heath be restrained from taking any steps to interfere with the provision of hair and follicle samples or to interfere with the test results.

   3.The Applicant mother and the Respondent father Mr Heath direct and authorise Occupational Toxicology Services Pty Ltd to provide to the Independent Children’s copies of all test results forthwith upon those results becoming available.

   4.That should one or other party require a report from Occupational Toxicology Services Pty Ltd in relation to the test results, they shall be solely responsible for meeting the costs of such report.

3. The Independent Children has general liberty to relist the matter in any circumstances that she regards as appropriate.

Notations

1. The Legal Aid Commission has funding for urinalysis but not for hair follicle testing.

2. The mother indicates that she consents to such an order being made and will comply with it.

3. Mr Heath does not consent to such an order being made.

IT IS NOTED that publication of this judgment by this Court under the pseudonym DFCS & Hampton and Anor; Hampton & Heath and Anor (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: (P)PAC4622/2014

BETWEEN

Department of Family and Community Services  (Applicant)

AND

Ms Hampton  (Respondent)

AND

Mr Dale  (Second Respondent)

FILE NUMBER: (P)NCC815/2012

BETWEEN

Ms Hampton  (Applicant)

AND

Mr Heath  (Respondent)

AND

Department of Family and Community Services     (Intervenor)

REASONS FOR JUDGMENT

1. This is an application to vacate a hearing in respect of four children which was fixed to commence today.  It is a very similar application to that which was made a week ago.

2. It is a virtually identical application made by Mr Dale, who is the father of the youngest of the children, to vacate the hearing, essentially on the basis that he is facing criminal charges with respect to a serious allegation of violence against two of the children, not his children.

3. These charges relating to two of the children led to the removal of all of the children from the care of the mother.  It goes without saying that the issue is a very significant one that goes not only to the protection of the particular child who was said to have been the subject of the violence but in terms of parental capacity for both Mr Dale and the mother, the issue of the mother’s insight, and also her capacity to protect the children, and is certainly an absolutely critical issue that needs to be resolved in these proceedings. 

4. The incident, of course, the way in which the Court deals with it is not the same as the way in which a criminal court will deal with it, but, by definition, it will involve a full exploration under cross-examination of that particular incident by the parties.  In particular, the Department and the Independent Children’s Lawyer are keen to explore it.  If there is a refusal to answer questions it could give rise to a certificate being given so far as Mr Dale is concerned.  The mother may be in a position where she may refuse to answer questions.  I do not know, because there could be other charges that could be contemplated.  She could very well end up in the same position.  But it goes without saying that it would be extremely difficult to explore a very important issue in these proceedings with respect to all of the children without that incident being able to be cross-examined upon.

5. Mr Heath, who is the father of three of the children, opposes the application and, as I understand it, says that he is in a position to proceed today.  He is actually not in a position to proceed today, in that he needs leave to rely upon an affidavit which was filed out of time and, in any event, his affidavit that was belatedly filed raises another issue which is relevant to his capacity. That issue criminal charges which he has had dealt with, but which he does not provide any details about in his affidavit, not even sufficient details that the Independent Children’s Lawyer could seek the records from the relevant Court.  So, in my view, Mr Heath himself is actually not ready to proceed.  I do not want that issue to be dealt with on the run, with the Independent Children’s Lawyer having to ask the Registrar to contact courts, in effect, during the week.  It is not a reasonable way to conduct proceedings. 

6. Either way, as has been outlined by Mr Morley, who is appearing on behalf of the Department, who does not oppose the application, regardless of how the criminal proceedings are resolved, it would be relevant to these proceedings, and would lead to, essentially, a significant waste of the Court’s time, to have to come back again and cover a matter that really could not properly be dealt with at this stage.

7. The Independent Children’s Lawyer does not support the application, but also does not oppose it, and agrees that it is a significant area that needs to be explored, and the application is supported by the mother in the proceedings. 

8. In all of the circumstances, I have to have regard, in particular, to public resources.  It has been said on behalf of Mr Heath that it must be in the children’s best interests for these matters to be resolved, given that they have been on foot for a very long time.  I do not know that that necessarily follows.  The circumstances of the children currently are more stable than they have been for some time, in that they were assumed into the care of the Department of Family and Community Services over a year ago, and it is not a case where there is any proposal to change them.  It does not necessarily follow, as I say, that it must be in the best interests of children. 

9. While, generally, it could be said that delay is not in the children’s best interest, this has been an extremely fluid matter, with new circumstances arising for all of the adults involved regularly throughout the proceedings, for example, the arrests of both fathers in the last 12 months. It is one of those matters where, of course, a line must be drawn under at some particular time, bearing in mind that the parents may continue to have fairly complicated and dynamic personal circumstances, but I do not think this is the time to draw the line.  That issue related to the criminal charges simply has to be able to be explored.  It is of such significance.

10. In those circumstances, I do vacate the hearing, and the matter will be relisted by the list clerk for a further five days on a date to be fixed.

11. I make the same directions that I have previously made, being:

    (1)Leave is granted to the parties to approach the list clerk for the allocation of trial dates, noting it is a five day matter.

    (2)Both parties are to file and serve any amended application or response upon which they intend to rely no later than 28 days before the commencement of the trial.

    (3) Each party is to file and serve one consolidated affidavit of their evidence-in-chief, and one from each of the witnesses, upon which they intend to rely in support of the orders, with such affidavits to be in compliance with Rule 15.12.

12. I have to say to the parties, and I am glad to see that Mr Heath has returned, that is a very important order.  It is an order of the Court, and it is expected to be obeyed, and although Mr Dale sought, and ultimately was granted, an adjournment of the matter, it is highly unsatisfactory, and Mr Heath also did not file his affidavit within time, and it has not contained matters that are really important.

13. So, first of all, it is expected to be complied with, and the parties should not assume that, if it is not complied with, that the trial will go ahead on the next day.  Courts do not make orders for them just to be routinely ignored, and I make an order that none of the parties may rely on any documents filed other than in compliance with these orders without leave of the Court, and in the event of non-compliance with filing directions, the Court will, at its discretion, either vacate the trial dates or list other matters with priority. 

14. Accordingly,  I made the orders as set out at the forefront of these Reasons for Judgment.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 26 October 2015.

Legal Associate: 

Date:  27 November 2015