Ellgar and Okeil

[2009] FamCA 425

FAMILY COURT OF AUSTRALIA

ELLGAR & OKEIL [2009] FamCA 425

FAMILY LAW – CHILDREN – Interim hearing

APPLICANT: Mr Ellgar

RESPONDENT: Ms Okeil

INDEPENDENT CHILDREN’S LAWYER: Karen Tydeman

FILE NUMBER: ADF 1399 of 2006

DATE DELIVERED: 13 March 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 13 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M Ross

SOLICITOR FOR THE APPLICANT:	Bartel and Hall
SOLICITOR FOR THE RESPONDENT:	Ms J Milen

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr K Tredrea

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Karen Tydeman

Orders

1. That by 4:00pm on 3 April 2009 the mother file and serve a Response to the Further Amended Application filed by the father on 24 February 2009, her affidavit of evidence in chief and the affidavit of evidence in chief of her father, the maternal grandfather.

2. That by 4:00pm on 24 April 2009 the father file and serve a further affidavit of evidence in chief updating his previous affidavit and responding as appropriate to the affidavits filed on behalf of the mother and the affidavit of evidence in chief of his current partner.

3. That Dr C prepare an updated Family Assessment Report with such report to be filed and served by 4:00pm on 24 April 2009.

4. That for the purposes of preparing the updated Family Assessment Report the parties attend upon Dr C at all times nominated by him and the parties do ensure that the children R born … February 1997, T born … July 1998, C born … November 2001 and M born … September 1995 attend upon Dr C at all times nominated by him.

5. That the mother have leave to issue a subpoena to SAPOL seeking production of all incident and apprehension reports and copies of statements taken in relation to an incident which occurred on 8 March 2009 involving the parties and the child R, and updated antecedent reports in relation to both parties, such subpoena to be returnable before a Registrar at 9:30am on 2 April 2009.

6. That the mother have leave to issue a subpoena to Families SA to produce their files in relation to the parties and the said children including M since 1 March 2008, such subpoena to be returnable before a Registrar at 9:30am on 2 April 2009.

7. That this case be adjourned part heard to continue at 9:00am on 1 May 2009.

8. That the question of the father’s costs of today’s proceedings be reserved.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1399 of 2006

MR ELLGAR

Applicant

And

MS OKEIL

Respondent

EX TEMPORE REASONS

1. This matter was listed this morning for an undefended hearing on the father's Application.  On 23 December 2008 I dismissed the mother's Response and removed that from the active pending cases list, and I will not revisit in detail why I did that, everyone is aware of the reasons.  In summary, it was because of her failure to attend that hearing, also as a result of circumstances that arose earlier in these proceedings and her failure to file affidavit material as ordered.  Thus the matter was listed for an undefended hearing today.

2. On 12 March, namely yesterday, the mother filed an Application in a Case which I now have before me, seeking in effect that this matter not proceed on an undefended basis, that orders be made to enable the mother to be involved as a party in these proceedings and for the filing of her affidavit.

3. When the matter was called on this morning the mother was not in attendance but her solicitor was.  I was asked to hold the matter in my list to await the arrival of the mother.  That was opposed by the father and understandably so, but supported by counsel for the Independent Children's Lawyer.  In the end result, I determined to hold the matter in my list.  I took the opportunity to explore issues and look at what might be involved in the acceding to the mother’s application 

4. The mother eventually arrived, and the matter has been called on again.  Ms Milen has pursued the application which is still opposed by the father but is now supported by the Independent Children’s Lawyer. 

5. I have indicated already that I propose to adjourn this matter today, and make orders to enable the mother to come back into the proceedings and to put the matter back on track for a conclusion hearing.  I do that, as I have said primarily because of concerns that I have and that counsel for the Independent Children's Lawyer has arising from the affidavit filed by the mother in support of her application. That affidavit raises issues about the child R, such as where she is currently living, and refers to an incident on 8 March 2009 which may lead to criminal proceedings, both against the mother and against the father. 

6. It seems the police are now involved, obviously, if there are to be proceedings, but also reports have been made to Families SA.  Although we do not know precisely, I would expect that Families SA would undertake some level of investigation, but that is a matter for them and we do not know yet precisely how far they will take the matter.

7. My primary concern is what is in the best interests of the children.  I confirm that I appreciate the frustration the father must feel about the matter not being resolved today but, as I have said to him and his counsel, I need to look at the safety and welfare of the children above all else.  Thus for those reasons I will make the orders sought by the mother.

8. I am keen to not let this matter drift though and I propose to make orders designed to allow this matter to be listed for a conclusion hearing as soon as possible.  Dr C, who has provided reports, is present in court today, and I thank him for that.  That has enabled me to clarify his further involvement in the matter.  All parties seek that he prepare an updated report which will entail, in effect, completing his earlier report because unfortunately the mother did not take up the opportunity to be involved in the preparation of that report.  Dr C has indicated that he can see everybody, or the children, including the child M, and provide a further report to this court.

9. Dr C has indicated that he is able to allocate some priority to this and he says he will be able to complete a report by mid-April.  I also thank him for that.

10. There needs to be subpoenas issued to SAPOL and to Families SA, and that will be done by the mother and I will give her leave to do that.  In terms of witnesses, the father has filed his affidavit but he needs to have the opportunity to update that and to also respond to the affidavit that the mother will now file.  She has to now file a response, setting out the orders she seeks, and her affidavit, and her solicitor has flagged that there will be a need for an affidavit from her father.

11. Going back to the father's side, he initially did not propose to call any other witnesses but, on reflection, his counsel tells me that he will now be filing an affidavit from his current partner, who apparently witnessed the incident on 8 March 2009.

12. From Mr Tredrea's point of view, he has not sought leave to do anything other than of course further involve Dr C, who will be his witness. 

13. Thus, looking at what needs to be done it seems that everything can be completed by mid to late April, and I can have this matter back before me on a continuation hearing on 1 May 2009.

I certify that the preceding 13 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 13 March 2009.

Associate