FOLETT & LANGLEY

[2016] FamCA 6

FAMILY COURT OF AUSTRALIA

FOLETT & LANGLEY [2016] FamCA 6

FAMILY LAW – PRACTICE AND PROCEDURE – where an application to reopen to allow further interview with a child is refused.

APPLICANT:	Mr Folett
RESPONDENT:	Ms Langley
INDEPENDENT CHILDREN’S LAWYER:	Joseph Tallarita

FILE NUMBER: CAC1832 of 2012

DATE DELIVERED: 18 January 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: In Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Self-represented
SOLICITOR FOR THE RESPONDENT:	Watts McCray

Orders

1. The father’s Application in a Case filed on 13 January 2016 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Folett & Langley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC1832/2012

Mr Folett

Applicant

And

Ms Langley

Respondent

REASONS FOR JUDGMENT

1. As I was preparing to finalise a judgment in this matter I invited the parties to make any application they may wish to, to reopen the matter in view of the time that had elapsed since the matter was on trial before me. 

2. The father filed an Application in a Case on 13 January 2016 seeking a number of orders which, apart from a reference to N’s wishes, did not seem to fall within the ambit of the invitation I had made.  The mother responded with an affidavit which updated certain material relating to herself and the children and her proposed to move to Newcastle and set out clearly and unequivocally that she would not either want to split the children or to have them further interviewed. 

3. I interpret the father’s application as meaning that he believes that N’s views are that N would like to spend time with his father.  He sensibly (in relation to the ordinary course of matters) has suggested it might be appropriate that those views should be ascertained.  While he suggests that the Court (by which I presume he means me) should speak to N, the way in which the Family Court operates is that a young person of N’s age would ordinarily be interviewed by a Family Consultant and that report would come before the Court as evidence.  The advantage in such an arrangement is that the Family Consultant is much more experienced and qualified to be able to contextualise the comments made by a young person and in particular this young person.

4. The ascertaining of those views via a Family Consultant would at this stage, given their workload, take some months.  This would mean that the entire matter would need to be recommenced before a different judge.

5. The views that N may express about his relationship with his father, where he would live or the time he would spend with his father are all matters which have relevance and of which I am obliged to take notice under s 60CC of the Family Law Act 1975.

6. However, those views, whatever they may be, will not be ultimately determinant in this matter.

7. I expect to deliver judgment in this matter within the next few weeks and accordingly, it is inappropriate to consider let alone implement the interim orders sought by the father. 

8. I have taken account of the matters set out in the mother’s affidavit filed on 15 January 2016 and in particular I have noted that she does not consent to N’s being interviewed by a Family Consultant and that she does not agree that it is in the children’s best interests they should be split. 

9. In the circumstances, it does not seem to me to be appropriate that the hearing should be aborted as the father’s application necessarily would bring about if I were to make orders in accordance with that application. 

10. The delay in the delivery of this judgment is regretted but further delay is not appropriate or in the children’s best interests.  It is, in my opinion, appropriate that the matter should proceed to judgment at this point.  I will note what the father says in his affidavit and in particular what he says about the views of N.  These are matters which I am entitled to take into account and indeed must take into account under the Family Law Act 1975 but only in the context in which they are put forward.  It is not appropriate for there to be cross-examination of the father about this or for that matter of the mother about what she sets out in her affidavit.  I accept that each of the parties may not accept in whole and possibly in part all of the things the other party has said.  However, the best interests of the children require that I come to a decision sooner rather than later and I will proceed to judgment accordingly.

11. The father’s application is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 18 January 2016.

Associate: 

Date:  18 January 2016