Farquar and Farquar (No. 3)

[2008] FamCA 1196

FAMILY COURT OF AUSTRALIA

FARQUAR & FARQUAR (NO. 3) [2008] FamCA 1196

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

APPLICANT: Mr Farquar

RESPONDENT: Ms Farquar

INDEPENDENT CHILDREN’S LAWYER: Margaret Orwin

FILE NUMBER: DNC 431 of 2007

DATE DELIVERED: 25 August 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 25 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Holtham

SOLICITOR FOR THE RESPONDENT: Withnalls

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms Orwin

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Margaret Orwin Barrister

Orders

1. That the father’s oral application to adjourn the trial be dismissed.

2. That forthwith the Independent Children’s Lawyer issue a subpoena to the Northern Territory Police seeking production of all incident reports held by them in relation to the mother and her partner Mr M, such subpoena to be returnable at 10:00am on Monday 1 September 2008.

3. That this matter resume as a part heard trial at 10:00am on 4 September 2008.

4. Each party must notify in writing each other party by 4:00pm on 1 September 2008 of any objections to any evidence in any affidavit filed by such other party and specifying the paragraph or part of the paragraph the party objects to and detailing the grounds for the objection.

5. Each party must reply in writing to any objection by 4:00pm on 2 September 2008.

6. The lawyers who are to appear for the parties at the hearing must confer no later than 1 day before the hearing is to commence in relation to any objections to evidence in affidavits and prepare a list of agreed deletions and objections to be argued at the hearing. 

7. The list of agreed deletions and objections to be argued at the hearing must be lodged with the Associate to the Trial Judge no later than 10am on 4 September 2008.

8. Each party must notify in writing each other party by 4:00pm on 1 September 2008 of the documents the party intends to tender in evidence in chief and, if inspection has not been undertaken, where the documents may be inspected.

9. Each other party must advise in writing by 4:00pm on 2 September 2008 which of the specified documents may be tendered by consent, and if there are documents that may not be tendered by consent, why the consent is withheld.

10. Each party must file and serve a Summary of Argument document at least 2 clear business days prior to the commencement of the trial, such document to be faxed to the Associate to Justice Strickland on 8981 6081.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 431 of 2007

MR FARQUAR

Applicant

And

MS FARQUAR

Respondent

EX TEMPORE REASONS

1. This is a matter which commenced as a trial before me in June and it was adjourned part‑heard to today for a continuation hearing, with a view to the conclusion hearing taking place during the Darwin sittings in September.

2. I made orders on 12 June and those orders have been complied with to a certain degree, in that both parties have now filed the affidavits on which they rely for their evidence in chief.

3. I will not repeat what has been said though about the late filing of the mother's affidavits.  I am told that there was leave given for that by the Registrar, and I do not take that any further.  I am concerned about service though.  I accept what Ms Holtham says, namely that she has sent the affidavits to the father’s address for service but for some reason the father has not received them.  Ms Holtham is able to provide the father with copies of those affidavits today, which will save any further issue about that.

4. I made an order for there to be a family assessment report.  That has been attended to, and there is a family report which is before the court dated 20 August 2008 or thereabouts.

5. One of the difficult issues in this case is that there was a serious incident that occurred in July 2007.  As a result of that incident, certain criminal charges have been laid against the father.  When this matter was listed for hearing and then heard in June, it was anticipated that those charges would be heard and determined in the “Local Court” in August.  On that basis I made the orders that I have just referred to, with a view to finalising this matter in September.

6. However, I am now told that the proceedings in the “Local Court” are by way of a committal hearing.  Frankly, if I had been told that in June, I might have taken a different view of this matter, and I am concerned that I was misled.

7. In any event, a committal hearing took place on or about 11 August, but I am told today that that hearing has not concluded.  There is further evidence to be taken, and the father’s best guess is that it is due to resume towards the end of September.  I am also told that the father has elected for those proceedings to be heard in the Supreme Court, depending of course on what happens with the committal.  I assume that at some stage a decision will be made as to whether there is a case to answer or not.  If there is not a case to answer, then obviously the proceedings will conclude there and then.  If there is a case to answer, as I say, the father has chosen for the matter to be sent for trial in the Supreme Court, and he tells me - and I accept this - that that is on the advice of the lawyer acting for him in those proceedings.

8. The problem that creates is whether this matter should proceed in this court or whether it should await the outcome of those criminal proceedings.  In fact, the father makes an oral application to adjourn this trial on that basis.  That application is opposed by both the mother and the Independent Children’s Lawyer.  I am particularly interested in the view of the Independent Children’s Lawyer, given the unique position that she has in this case.

9. To explain the Independent Children’s Lawyer's view a bit further, it is that her instructions and her assessment of the matter is that this case should be decided in accordance with the wishes expressed by the child R, given her age, and she considers that that will not be affected by the result of the criminal proceedings.

10. The family consultant has addressed this issue in his report and in his recommendations, and he says that further consideration of time spent between R and her father should be postponed until the Supreme Court case is finalised.  He does not say that in relation to the issues of parental responsibility and where R should live or, indeed, what time R should spend with her father up until the Supreme Court hearing is finalised.

11. In that regard, the father says that he is not pressing for any change to the current arrangement pending that Supreme Court hearing, namely, the child would continue to live with her mother and he would only see R when she wishes to see him.  That is all very well, but the father has confirmed that he is only addressing those issues on an interim basis.  He still wishes to pursue his application for a final order that the child live with him.

12. The father tells me that he is confident of success in the Supreme Court proceedings, namely, he is confident that the mother and her witnesses, including the child the subject of these proceedings, will be found to be liars and that that will in turn have an impact upon the findings that I have to make in this case.

13. I have attempted to explain the difference between criminal proceedings and proceedings in this court to the father.  In my view, it is not necessarily the case that the findings that might flow from the Supreme Court proceedings will have any impact upon a decision that would be made in this court.

14. What I am particularly concerned about though is delay.  This is a matter that has been before this court for some time.  The child needs to know where she is going to be living.  The arrangement with the issue of time spent with her father at the moment is that it is subject to her wishes.  Whether that turns out to be the case finally or not remains to be seen.

15. Although I perceive there will be difficulties in finalising the case in this court - and particularly, no evidence could be presented in relation to the incident in July 2007.  I am assured by Ms Holtham and Ms Orwin that that is not an impediment to this matter proceeding.  I frankly would like to think that that is a correct assessment.

16. On that basis, I dismiss the application to adjourn. This case simply has to be heard.  The Supreme Court proceedings involve one incident and one incident only, and there are significantly more relevant factors that I have to consider to determine what it is the best interests of this child other than what happened with that particular incident.

17. I do not want to comment at this stage about why those criminal proceedings have proceeded to this point and will continue to proceed, given the involvement of the children, but that is for the parties to work out themselves and to come to terms with and explain to the children.  I find it extraordinary that this situation would have developed to this point, and there is no end in sight.

18. However, that said, as I say, on current indications I consider that this matter can proceed to finalisation in this court, despite the fact that the Supreme Court proceedings will not be finalised for some time if they proceed that far.  I allow for the fact, of course, as I have to, that things might change during the evidence in this case, and if that happens so be it, but my view is that, in the best interests of this child, we should simply get on with this hearing.

19. Finally, and to repeat, I note that Ms Holtham will provide copies of the affidavits of her client and her client's partner to the father today.

I certify that the preceding 19 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 25 August 2008.

Associate