Fothering and Vintic

[2010] FamCA 413

FAMILY COURT OF AUSTRALIA

FOTHERING & VINTIC [2010] FamCA 413

FAMILY LAW – CHILDREN – interim proceedings – application for an adjournment – where there has been a long delay in reaching a final hearing – where the mother has been subpoenaed to give evidence in another court – application granted

Family Law Act 1975 (Cth)

APPLICANT: Mr Fothering

RESPONDENT: Ms Vintic

INDEPENDENT CHILDREN’S LAWYER: Mr TJ Mulvany

FILE NUMBER: MLC 1425 of 1999

DATE DELIVERED: 20 April 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 20 April 2010

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT:	Mr Baker
SOLICITOR FOR THE RESPONDENT:	Cash & Stavroulakis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER TJ Mulvany & Co

Orders

IT IS ORDERED:

1. That henceforth the proceedings be referred to as Fothering & Vintic and any reference to the mother by name be … Vintic.

2. That the trial which was to commence today be vacated.

3. That this matter be set down for final hearing before me on 31 May 2010 as the second case in the list. 

4. That the mother is required to attend Melbourne for the purpose of the trial but I reserve liberty to any practitioner to arrange to have the matter mentioned in the preceding week to ascertain the likelihood of the matter being reached on 31 May 2010.

5. That pursuant to section 11F of the Family Law Act 1975 the child E born …June 1997 and her paternal aunt, C Fothering attend an appointment with a family consultant of this Registry of the Court for a Child and Parent Issues Assessment and for that purpose:-

   a)The child and the paternal aunt attend at Level 5 of this Registry of the Court at 9.30 am on 4 May 2010;

   b)IT IS REQUESTED that the Family Consultant prepare an issues assessment in writing and that issues assessment be made available to the parties, their practitioners and the Court prior to the adjourned date

6. That the family consultant may have discussions with Mr Mulvany but must not interview or enter into discussions with the mother unless an equivalent opportunity for discussion or interview is offered to the father.

7. That the family consultant may, at the direction of the Honourable Justice Bennett, be required for cross-examination on the adjourned date.

8. That the mother do all acts and things necessary to ensure that herself and the child E are in Melbourne by not later than 9.00 am on the day prior to the interview with the family consultant and the mother ensure that the child E has the opportunity, if she wishes to do so, of being able to contact her Aunt C before the interview with the family consultant.

9. IT IS REQUESTED that there be a brief memorandum or issues assessment (not a family report) prepared by the family consultant who sees the aunt, C, and the child and that such memorandum be released by not later than Wednesday 12 May 2010.

10. That the time for compliance by the applicant father with paragraph 4(a) of my Order made on 16 February 2010, which required him to file and serve any amended application and any evidence in support of his case, be extended to Monday 3 May 2010 at 4.00 pm.

11. That the time for compliance by the respondent mother with paragraph 4(b) of my Order made on 16 February 2010, which required her to file and serve any amended response and any evidence in support of her case, be extended to Monday 10 May 2010 at 4.00 pm.

12. That the in the event that either, or both, parties fail to comply with the orders of filing of evidence then any party to the proceedings has liberty to apply that the matter proceed as an undefended matter vis-à-vis the person who has failed to comply and that that person not be entitled to call any evidence and only be entitled to cross-examine other witnesses.

13. That the costs of the independent children’s lawyer of this day be reserved to the final hearing and the quantum of such costs be similarly reserved and whether such costs ought be paid by the mother or her legal practitioners similarly be reserved for the final hearing.

14. That the costs ordered to be reserved in paragraph 4 of the Order made on 16 April 2010 remain reserved.

15. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 1425 of 1999

MR FOTHERING

Applicant

And

MS VINTIC

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter concerns the child E, born in June 1997. The mother makes an application for an adjournment of a trial which has been set down to commence today since 23 November 2009, the matter having been referred into my list as a case of extraordinarily long standing in the court.  These reasons set out briefly why I am prepared to accede to the mother's request.

2. The non contentious history of the matter is evident from a family report, prepared by Ms D in Brisbane dated 16 June 2009.  I will not rehearse the facts in these reasons.  It is sufficient to note that the mother and the child reside in a suburb of the Gold Coast in a home owned by E’s maternal grandmother.  The mother also has care of two young children from her current and ongoing relationship with her husband, Mr Vintic (previously known as …). 

3. Mr Vintic is not a resident of the mother’s home because he is in remand on charges of trafficking drugs and on separate and subsequent charges which appear to relate to an issue of fraud, about which the mother has been unable to give any evidence.

4. E has not seen the father since 2006.  There has only been incidental contact between E and the father on the day of the interviews for the family report on 1 June 2009.

5. This matter has been to court twice in the last week.  An oral application was made on behalf of the mother by Mr Baker of counsel, asking for this hearing to be adjourned because the mother was under subpoena to attend court and give evidence in respect of Mr Vintic’s criminal charges, the subpoena having issued at the behest of his representatives.

6. I adjourned the matter to today to permit the court to receive evidence on oath, by affidavit or viva voce, in support of the adjournment.  The mother has given oral evidence. The evidence‑in‑chief was far reaching.  I also permitted cross‑examination on matters to do with the adjournment and information which had previously been sought from the mother but not forthcoming, as well as E’s current living arrangements and the state of the mother's relationship with Mr Vintic.

7. The mother presented as a fairly verbose but pleasant witness.  Her evidence contradicted information previously given to the court in many significant respects. This included the period for which the mother has known that she could not attend court in Melbourne for this hearing.  The hearing date was fixed in November 2009 to commence today, 20 April 2010. 

8. On 10 February 2010 a subpoena was issued directed to the mother to attend the Supreme Court in Brisbane and give evidence in the criminal charges faced by her husband.  The independent children’s lawyer has a copy of that subpoena which states the dates for attendance as between 13 April and 30 April 2010.  The witness did not quibble with that. 

9. On 16 February 2010 the matter was before me for directions for trial.  The second paragraph of that order required that the mother attend court in Melbourne for the purpose of the trial commencing 20 April 2010.  It is obvious that as at 16 February 2010 there was a conflict between the mother's responsibility to be in court to give evidence for her longstanding parenting matter in relation to E and her obligation to be in Brisbane to give evidence in the criminal trial of her husband.

10. I do not know and make no finding as to when precisely the mother was served with the subpoena issued on 10 February 2010.  However, I note that the mother says this was the second subpoena and she had been served with an earlier subpoena which advised her to attend court.

11. What is significant is that from the time of service upon her of the subpoena, which it appears to me was some time in February 2010, the mother and/or those who advise her did not do anything to make sure that the independent children’s lawyer, the court or the father knew that she could not attend in Melbourne.  The mother's evidence is that she promptly contacted her solicitor and provided a copy of the subpoena.  That is quite contrary to any indication that was made on 16 February 2010 when Mr Cash, solicitor, appeared on behalf of the mother and no steps were taken by the mother to adjourn this matter until 16 April 2010.

12. When the matter came before me last Friday 16 April 2010 it had been listed at the request of the independent children’s lawyer, who was concerned that he was not being given accurate information and that the mother might not even be in Melbourne for the trial.  When the matter was called, counsel for the mother made an oral application with no prior notice to the other parties.  That is a wholly unprofessional and unsatisfactory way to run litigation.  I do not know whether the fault lies with the mother or with her solicitor but at the moment we have the mother's uncontested evidence that she advised her solicitor and blames her solicitor for not alerting the court, the independent children’s lawyer or the father of the reality.

13. There is a further complication to the mother being able to attend Melbourne.  The court had previously been told in November 2009 that the mother faced criminal charges.  That much is evident from the family report because the family report writer considered what would happen if the mother were incarcerated.  As best I recall, in November 2009 the court was advised that the mother had been given a bond for those charges.

14. The mother’s evidence today is that there is not even a trial date set.  There has been no determination of those charges and she is still on bail.  She is unable to say whether or not the conditions of her bail preclude her from leaving Queensland to attend court in Melbourne.  She has not asked so far.  In view of the fact that she has not asked I take it that she does not raise as an obstacle her attendance at court for the hearing or for the counselling appointment which I will put in place.

15. Today the mother gave evidence in relation to her own criminal convictions and said that they dated from 1997 and related to a burglary ….  Mr Mulvany showed the mother via facsimile her criminal record as submitted by Victoria Police pursuant to a subpoena.[1]  The mother admits that in September 1997 she was also convicted of drug related charges, including traffic cannabis, cultivate narcotic cannabis, possess and use cannabis, as well as handle, receive and retain stolen goods. 

    [1] Exhibit “ICL1”, which will remain on the court file.

16. The mother also has a 1996 conviction for shop steal.  She was convicted and discharged at the Preston Magistrates Court on 12 December 1996. The mother states she has no recollection of that but does not contend that this is not her criminal record. 

17. In 1993, which is now some 17 years ago, there were dishonesty offences for which the matter was dealt with without a conviction. 

18. On 11 March 1992 there was a care and protection application adjourned in the Children's Court to 11 March 1993.  That is likely to relate to the mother herself, who at that stage would have been about 15 and a half years of age.

19. Probably the most glaring misrepresentation to the court, which has been clarified by evidence received today, concerns Mr Vintic.  The court was informed by the solicitor for the mother on 16 February 2010 that Mr Vintic’s charges had been dealt with and that he had been convicted and sentenced to an extended period of gaol.  The mother, through her representatives, said he was unable to say how long the gaol term was because the mother did not really care.  She had ceased her relationship with Mr Vintic and he would not be returning to live with her.

20. Today, it is apparent that the charges for which the court had been informed Mr Vintic had received a gaol term have not even been determined and are not even finished.  The proceedings are currently running in the Supreme Court and it is anticipated that the mother will be giving evidence in those proceedings on Friday 23 April 2010 of this week.

21. The mother also says that she told her solicitor she would be divorcing Mr Vintic but she did that because at the time she was "angry".  She has done nothing to advise the court, the independent children’s lawyer or the father of the fact that at some point thereafter she decided she would not divorce Mr Vintic and that if he is released from prison he will be coming home to live with her, E and the two children of the relationship between the mother and Mr Vintic.  The mother says that she did contact the secretary of her lawyer and say that she did not intend to divorce Vintic, but that is all.

22. I permitted questions of a fairly broad ambit because it was necessary to test the veracity of the mother's basis for an adjournment.  It is also incumbent upon the court in matters involving children, and particularly children who appear to confront all of the risks which are discussed in Ms D’s family report dated 16 June 2009, to know about the circumstances of E.

23. In the week that this matter has been mentioned before me on two occasions, it is apparent and agreed that E has been keeping in contact with a paternal aunt called C.  Mr Mulvany is in possession of some correspondence between them.  It seems to me appropriate that there be an assessment or at least some discourse on a reportable basis between E and her Aunt C and that can be arranged for 9.30 am on Tuesday 4 May 2010.  The mother has agreed to travel with E to Melbourne for the purpose of that interview. 

24. I will place a condition that E must be in the State of Victoria and in Melbourne on the morning of the day prior to the interview, because I do not want it to be rushed.  I would also want there to be a realistic opportunity for her to see her Aunt C prior to the interview if she chooses to do so.

25. I accept that, absent an application to the Supreme Court, whilst under subpoena to give evidence in criminal proceedings the mother cannot travel outside the State of Queensland or be otherwise unable to give evidence. 

26. It appears the matter has been handled very poorly, either by or on behalf of the mother, but the fact of the matter is that the matter cannot proceed tomorrow.  I will, however, give it the next available date.  I will take it as the second case in my list on 31 May 2010, which means that it will have the shortest adjournment that I can manage at the moment and the parties should have some notice of the observations of the Melbourne based family consultant in relation to E and the aunt, C.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  26 May 2010