Ellgar and Okeil

[2008] FamCA 1092

FAMILY COURT OF AUSTRALIA

ELLGAR & OKEIL [2008] FamCA 1092

FAMILY LAW – PROCEDURE – Case management orders

APPLICANT: Mr Ellgar

RESPONDENT: Ms Okeil

INDEPENDENT CHILDREN’S LAWYER: Karen Tydeman

FILE NUMBER: ADF 1399 of 2006

DATE DELIVERED: 20 October 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 20 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M Ross

SOLICITOR FOR THE APPLICANT: Bartel & Hall

COUNSEL FOR THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr K Tredrea

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Services Commission

Orders

IT IS ORDERED BY CONSENT:

1. That within 14 days the father file and serve an Amended Application for Final Orders setting out the final orders that he now seeks in this matter.

2. That within 14 days the mother file and serve an Amended Response setting out the final orders that she now seeks in this matter.

3. That Dr C prepare an Updated Family Assessment Report with such report to be filed and served by 4:00pm on 5 December 2008.

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

5. At the discretion of Dr C the child M born on … September 1995 attend upon Dr C for the purposes of the Updated Family Assessment Report at all times nominated by Dr C.

6. That by 4:00pm on 17 December 2008 the father file and serve his affidavit of evidence in chief and the affidavits of evidence in chief of his partner Ms J (if so advised) and his father.

7. That by 4:00pm on 17 December 2008 the mother file and serve her affidavit of evidence in chief and the affidavits of evidence in chief of her mother and her father.

8. That this trial be adjourned to resume at 2:15pm on 23 December 2008 with a time estimate of 2 hours.

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 before me today for a first-day hearing. It is a matter which is to be heard under Division 12A of the Family Law Act.  Unfortunately, the mother has been unable to attend.  She was not in attendance when the matter was called on initially.  However, she has been able to attend by a telephone, which has been helpful, but unfortunately not so as to enable the first day to proceed as it should.  The reason why the mother did not attend is that she says her car had mechanical trouble and she had to call the RAA and she simply has not been able to get to court. 

2. The mother is unrepresented.  Ms Ross has appeared for the father, who has been in attendance.  Mr Tredrea has appeared for the Independent Children’s Lawyer.  When this case was called on this morning, Dr C was also present.  He has provided three reports - or two substantive reports and one addendum report - in this matter, and that is why he was present today.  He has been instructed by the Independent Children’s Lawyer.  Separate to that, there is a family consultant who has conducted the Child Responsive Program with these parties and the children, and there is a children and parents issues assessment that is before me today from that family consultant.  Unfortunately, the family consultant has been ill today and he has not been able to be in attendance.

3. I confirm that unfortunately the hearing today has been less than satisfactory as a result of the inability of the mother to physically attend court, but in attempting to do the best that I could in the circumstances, it has become readily apparent to me that these parties are in high conflict.  They have both adopted, in my view, adversarial stances, and I have made comment about that as the day has progressed, given of course that this is intended to be a less adversarial process.

4. After hearing what the parties have had to say about the orders that they seek, their respective positions in the matter, the history and what they want for the future, unfortunately I have come to the view that there is little value in attempting to conduct a first-day hearing in the way that it would normally be conducted in this court under Division 12A, and this is a case that should move as quickly as possible to a conclusion hearing.

5. To that end, as I say, I have ascertained what orders the parties seek and I will come back to that in a moment.  I have ascertained the witnesses that each party wishes to call, and I will come back to that as well.  I mentioned earlier the presence of Dr C.  It is agreed by all parties, and particularly the Independent Children’s Lawyer, that there is a need for Dr C to now provide a final family assessment report before this matter can progress.  There are a number of reasons for that, but the three primary reasons are firstly that he has not seen the parties or the children for many months now - it was either late 2007 or early 2008 when that occurred, and secondly he has been involved for some time prior to that and, he has provided two reports and an addendum report.  He knows the family.  He knows the parties, and he knows the children.  Thirdly the mother has now returned to South Australia.  She is living in the southern suburbs of Adelaide, and she intends to live in South Australia, she says, permanently.  Whether she remains in the same house is uncertain, but she will be looking for a larger house, as she described to me.  That puts a different complexion on the matter, and it needs the input of Dr C on the basis that both parties, as currently advised, will be living in South Australia, as will all of the children.

6. Separate to that, I should note that, in relation to the child M, who is not a natural child of the father in these proceedings, no orders are sought in relation to her.  She is currently living with her mother and has done so for some time now.  The three other children who are the subject of these proceedings are currently residing with the father, subject to orders that were made in this court on 18 April 2008.

7. Turning then to the witnesses that each party wishes to call, as far as the father is concerned, he will of course give evidence himself, and there will be a need for him to file an affidavit.  He currently has a partner by the name of Ms J.  However, I am told by his counsel that it is not certain that they will be together when this matter reaches its conclusion hearing.  However, if they are still together, as I have said, in my view it is necessary for that person to give evidence and Ms Ross will take appropriate instructions from her client about that.  In addition, the father seeks to call his father, and also wishes to subpoena the Deputy Principal from Y School and maybe one or other of the children's teachers.

8. From the mother's point of view, she wishes to call as witnesses her parents and, from the Independent Children’s Lawyer’s point of view, his counsel says that there is only a need for Dr C to be called.  I propose in a moment to make orders for the filing of affidavits from each of those witnesses.

9. In relation to Dr C, unfortunately we have not been able to contact him after he left the Court earlier today.  He was in attendance at the commencement of this case but, understandably, he did not stay, but as far as I was aware he was then able to be contacted by telephone.  We have not been able to do that and thus I have had to make a decision as to how long I will allow for Dr C to provide an updated report.

10. The final matter to mention before I make the orders is that - and I raised this myself, and Mr Tredrea has reiterated it - the parties need to file an amended application and response, setting out precisely the orders that they seek.  Each party has told me what they seek, but that has to be attended to formally.  I noted earlier that there was an order made by the registrar of this court for that to occur, but that order has not been complied with.  I will make a further order and I expect it to be complied with, otherwise there will be consequences.

11. That said, the continuation date that I am considering is 23 December 2008.  I propose to allow more time than usual on that day to devote to this matter, given what has transpired today, and I propose to have a close look at the affidavits that the parties have filed and make a decision at that time about whether I will allow all of the witnesses that each party seeks to call, for example.  By then we will also have Dr C’s report, and it may be that that leads to some productive discussions between the parties.

12. I note that in relation to the subpoenas to the Deputy Principal and/or the Principal and/or teachers at Y School, that issue will be considered on the adjourned hearing date, with a view to identifying the evidence that they will give.

I certify that the preceding 12 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 20 October 2008.

Associate