Dodd and Menzies

[2007] FamCA 1636

FAMILY COURT OF AUSTRALIA

DODD & MENZIES [2007] FamCA 1636

FAMILY LAW – CHILDREN – Commencement of trial under Div 12A – Parties agree older child to decide where she lives – Family Consultant to interview younger child to assess his views – Mother currently does not have suitable accommodation to pursue orders sought – Adjournment of trial for preparation of report and to give mother opportunity to obtain accommodation

Family Law Act 1975 (Cth)

APPLICANT: Mr Dodd

RESPONDENT: Ms Menzies

FILE NUMBER: ADF 1291 of 2004

DATE DELIVERED: 4 December 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 4 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.C. Burrell

SOLICITOR FOR THE APPLICANT: David Burrell and Co

COUNSEL FOR THE RESPONDENT: Ms A. Du Barry

SOLICITOR FOR THE RESPONDENT: Legal Services Commission of South Australia

Orders

1. Pursuant to Section 62G of the Family Law Act 1975 a Family Consultant interview the child L born … November 1997 and ascertain his views as to where he should live, such report to be available by the adjourned hearing date.

2. That the trial be adjourned to 9:15am on Wednesday 27 February 2008.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1291 of 2004

MR DODD   

Applicant

And

MS MENZIES

Respondent

EX TEMPORE REASONS

1. This matter has commenced before me as a trial today under Division 12A of the Family Law Act 1975.

2. There are two children the subject of these proceedings, although in relation to the older child the father seeks no formal order. 

3. With that older child, the parties have, in effect, agreed what the outcome should be namely that, given her age, her level of maturity and her known views, where she lives should be left up to her.  I have expressed some concern about that, but as I have also said - and I repeat - I am comforted by the fact that the parties know their own child and that they are in agreement about this.

4. The question, though, is how to finalise that issue.  The choice is whether to simply make no order about the child N or to make an order to the effect that where she lives should be up to her.  I have not finally decided what I will do about that, but that final step can be left until the matter comes back before me in February, at least, and maybe a bit later than that, depending upon how the matter progresses. 

5. With the child L, there is still a very real dispute about where he should live.  However, both parties agree that his views should be sought about that topic, and I propose making an order for a report to be provided as to his views.

6. The mother though is in a difficult position, in that she simply does not currently have suitable accommodation to pursue the order that she does for L, namely, a shared care arrangement. 

7. The mother is looking to obtain suitable accommodation but she has been dependent to date on the result of proceedings in the District Court.  There has now been a judgment delivered but Mr Burrell has indicated to me that his client has instructed him to file an appeal.  I do not know how long an appeal might take, but that will complicate things because, as I say, the mother has been reliant on the result of those proceedings allowing her to obtain suitable accommodation.

8. This matter cannot wait indefinitely, and there may come a point where the mother is not in a position to proceed with her application in relation to the child L, but I want to give her the opportunity to sort out her accommodation, and the process that we have embarked upon allows for that.  I need to allow some time for the report to be obtained as to L's views, and thus that might provide the answer to those difficulties.

9. I want to have this matter back before me on a directions hearing basis once the report is available and to also hear an update as to the mother's accommodation, or the progress of obtaining suitable accommodation, and that will also give the parties an opportunity to further consider their respective positions and whether this matter needs to go any further.

10. The step beyond that directions hearing in February would be a listing for a final hearing, and I would be making orders for the filing of affidavits, although I note Mr Burrell says that that may not be too onerous given the affidavits that are already on file.  Be that as it may, the next step would be all necessary preparation for a final hearing.

I certify that the preceding 10 numbered paragraphs are a true copy of the reasons herein of the Honourable Justice Strickland.

Associate

4 December 2007