Dexter and Parkinson

[2007] FamCA 80

FAMILY COURT OF AUSTRALIA

DEXTER & PARKINSON [2007] FamCA 80

FAMILY LAW - PARENTING - Contravention - Interim

Family Law Act 1975 (Cth)

FATHER: Mr Dexter

MOTHER: Ms Parkinson

FILE NUMBER: MLF 5300 of 2001

DATE DELIVERED: 29 January, 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 29 January, 2007

REPRESENTATION

COUNSEL FOR THE FATHER: Ms Dowler

SOLICITOR FOR THE FATHER: Forster & Associates, DX 95304, Carlton

COUNSEL FOR THE MOTHER: Ms Goldsworthy

SOLICITOR FOR THE MOTHER: Berry Family Lawyers, DX 16105, Williamstown

Orders

1. That pursuant to s.68L(2) of the Family Law Act 1975 the interests of the children C born in October, 1994 and A born in September, 1996 be independently represented by a lawyer AND IT IS REQUESTED  that Victoria Legal Aid arrange such independent representation.

1. That forthwith upon appointment by Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

1. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

1. That the father have leave to file an amended form 2A and an affidavit sworn by his wife. 

1. That in the event the mother proposes to rely upon the evidence of the psychologist, Ms B she file and serve an affidavit of Ms B by 20 February, 2007 and do all things necessary to ensure that Ms B be available for cross-examination in the course of the contravention proceedings on the adjourned date.

1. That each party file and serve any additional affidavits by 27 February, 2007. 

1. That the mother pay the father’s costs of this day fixed at $1,100, such costs to be paid within three months hereof. 

1. That the following applications be otherwise adjourned to the long judicial duty list at 10:00 am. on 6 March, 2007 :

   (a)form 1 and form 2 applications filed by the mother on 21 December, 2006;

   (b)form 1A filed by the father on 16 January, 2007;

   (c)amended form 2A application filed by the father with leave this day;  and

   (d)contravention application filed by the father on 15 January, 2007.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That the preparation of these orders be expedited forthwith.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

1. That Mr Dunstan of Bowlan Dunstan & Associates Pty. Solicitors, was previously the independent children’s lawyer in these proceedings.

1. That two reports have previously been prepared in this matter by Mr H.

1. That the wife took the children to see a psychologist, Ms B, without advice to the father and advised this day that the father is free to attend an appointment with Ms B and the children at 11:00 am on 30 January, 2007. 

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF  5300  of 2001

Mr Dexter

Father

And

Ms Parkinson

Mother

REASONS FOR JUDGMENT

1. This case involves the parties’ sons C, born in October 1994, and A, born in February 1996.  After lengthy litigation final orders were made by consent on 2 December 2005, pursuant to which the boys were to live with their mother and have regular and frequent contact with their father.  The evidence is that contact occurred pursuant to those orders until December 2006, when the wife announced that contact would not be taking place.

1. In a letter from her solicitors dated 15 December it was asserted that the children had indicated a strong desire not to spend time with their father, and thus they would not be attending that weekend.  The letter advised that the solicitors were instructed that C had advised that the husband had been emotionally and verbally abusive, that they did not intend to particularise the nature of the abuse at that point (apart from saying that the child had been called names by his father), and in those circumstances the wife was not prepared to make either child spend time with their father against their will.

1. On 21 December the wife filed an application seeking to suspend contact and for a number of other orders.  That was met by applications for final and interim orders by the husband.  In the interim application, he sought the immediate resumption of time with his children and make-up contact, as they had been deprived of the opportunity to spend any time with him over the Christmas school holidays.  Indeed, he now has not seen them since early December.  Today I have granted leave for him to file an amended form 2A, in which he seeks that the children live with him. 

1. Prior to the final orders being made in December 2005 a number of reports were prepared by Mr H.  An independent children's lawyer was involved in those proceedings.  The husband no doubt thought that the consent orders signalled the end of the litigation.  Unsurprisingly, on 15 January, the husband filed a contravention application seeking the wife be dealt with for breach of the 2005 orders.

1. The husband has been represented throughout the proceedings.  The wife has been represented sometimes.  On other occasions (and, indeed, while represented) has filed affidavits prepared by her.  She annexed to one such affidavit a report of a psychologist, Ms B, to whom she took the children for the first time in January 2007.  That report notes that the case was first discussed with her in December.  It is clear from her report that there was a second attendance by the children on 18 January.  I am told by the wife’s counsel today that another attendance is scheduled for tomorrow.

1. Whilst the psychologist’s report includes a history given by the wife, and remarks from the children, that are very, very critical of the husband, in her summary and recommendations Ms B has been very cautious, noting that the acrimony between the parties is still far too volatile to expect the children to be operating well.  It is a reasonably neutral recommendation. 

1. Notwithstanding that, I understand the husband's response to learning of it, which is to say, "We as parents are jointly responsible for these children in long term care.  Without any notice to me they have been taken for a significant therapeutic intervention Not only had I no idea about it but, having seen a number of professionals before, they are now being touted to yet another."

1. I note the invitation of the psychologist and the wife for the husband to attend the appointment at 11 am tomorrow.  That is a matter for him.  I will not say anything about it other than this.  He should not take the view that by attending tomorrow he will be seen to condone their initial attendance.  I make that clear in case it is useful to him.  I make it clear that the husband's position is that he was not advised about the children’s attendance on the psychologist and knew nothing of it until it was sprung on him in the proceedings.  In the event he does decide to attend, or discuss the matter with Ms Barrabash, that will not alter or undermine his initial stance.

1. The wife's counsel seeks an adjournment to enable Ms B to give evidence in admissible form, and be available for cross‑examination.  The husband's counsel is put in a difficult position.  In one sense, she wants the case to run, and I am available to hear it.  In another, as she said, she would not be doing her client a service to argue the case without cross‑examining Ms B, as that could be particularly relevant to a defence the wife may raise in the contravention application. 

1. I do also note the husband's position, as put through his counsel, is that what he seeks is the resumption of his time with the children and consideration of his application that they live with him.  That is his focus. 

1. In all the circumstances I do not see the court has any option but to adjourn the case.  Ms B cannot be contacted so telephone cross‑examination is not an option today.

1. I will grant the husband leave to file material today.  I will order that in the event the wife proposes to rely on the evidence of a psychologist, she file and serve an affidavit of the psychologist by a fixed date.  I will then give each of the parties a period in which to file and serve any additional affidavits.  I will otherwise adjourn the case to the long interim list.

1. There has been an application for costs by the husband.  Counsel for the wife submits that they should reserved.  There is one reason, and one reason only, for the adjournment and that is the wife’s wish to adduce evidence from the psychologist.  These are serious matters before the Court and I was available to hear them.  In my view, I am in the best position to decide whether costs should be awarded against the wife, and I do so order. 

I certify that the preceding
13 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM

Dated the          day of           2007

…………………………………………
Associate

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DEXTER & PARKINSON