Fulwood and Wettons

[2009] FamCA 527

FAMILY COURT OF AUSTRALIA

FULWOOD & WETTONS [2009] FamCA 527

FAMILY LAW – PROCEDURAL – Interim orders – application in a case

APPLICANT: Mr Fulwood

RESPONDENT: Ms Wettons

INDEPENDENT CHILDREN’S LAWYER: Terry Stephen

FILE NUMBER: ADF 1140 of 2003

DATE DELIVERED: 27 March 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 27 March 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Not present

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Mr T Stephen

Orders

1. That the Application in a Case filed by the father on 24 March 2009 be dismissed and removed from the active pending cases list.

2. That within 3 weeks of the date of this order the father file and serve an Amended Response setting out the details of the final orders that he seeks in this case.

3. That this case be listed for a first day of trial commencing at 10:00am on 1 May 2009.

4. That leave is granted to the father to attend the first day of trial by telephone.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1140 of 2003

MR FULWOOD

Applicant

And

MS WETTONS

Respondent

EX TEMPORE REASONS

1. This matter was adjourned to today on 6 November 2008 to await the outcome of an appeal filed by the father against an order dismissing his application to discharge the order appointing the Independent Children’s Lawyer.

2. That appeal was deemed abandoned on 29 January 2009 and thus this case can again be listed for a first day of trial.  However, the mother has failed to attend today.  It is my view that that should not hold up the hearing and the Independent Children’s Lawyer agrees with that.  The father initially opposed that but subsequently changed his mind.

3. The father also filed an Application in a Case on 24 March 2009 and that is listed for hearing today.  Again, although it has not been served on either the mother or the Independent Children’s Lawyer, and despite the absence of the mother I have determined to proceed to hear that application.  That was supported by the Independent Children’s Lawyer but was opposed by the father.

4. In support of that application the father filed an affidavit, and the Independent Children’s Lawyer has now read that document as well as the Application in a Case.

5. The father sought to file “further affidavit material” in support of the application, but I refused to allow that given that the father has had months to file this application and any affidavit in support, yet he left it until the very last moment.  In those circumstances I was simply not prepared to delay the hearing of this matter to enable further affidavits to now be filed.

6. In relation then to his Application in a Case the father made oral submissions in support and read out the contents of his affidavit. 

7. The first order sought by the father is that, “the court make an order disqualifying the Family Court of Australia from any involvement or influence” in this matter.  As I have explained to the father that is not an order that I can make, and in any event there is nothing in the affidavit which would justify disqualification of this Court.  I indicated to the father that it is open to him to seek an order disqualifying a judicial officer or officers but not a court.  Thus I propose to dismiss that paragraph of the application.

8. The second order sought is that this Court make an order “transferring” this matter “and jurisdiction of, to a court deemed suitable other than the Family Court of Australia. Such Courts being the Supreme Court of South Australia, the Federal Court of Australia, or a Court of Australia deemed suitable.”

9. Unfortunately, it is not open, constitutionally, for this matter to be transferred to the Supreme Court of South Australia, nor is it open, constitutionally, for this matter to be transferred to the Federal Court of Australia.  The only other court in Australia to which this matter could be transferred is the Federal Magistrates Court and the father now indicates that that is what he wants.  However there is nothing in his affidavit which would justify such an order. 

10. The affidavit is deficient in the sense that it does not provide any specifics of the particular allegations that the father makes.  Even if there were some specifics before the Court though, I fail to see how the allegations that the father makes are a proper ground for a transfer to the Federal Magistrates Court.  The Federal Magistrates Court is a court which deals with the less difficult matters in this jurisdiction.  That is how it was set up and that is its charter.  This is not a matter which would be appropriate to be transferred to the Federal Magistrates Court.  It is a complex matter involving serious issues and, as Mr Stephen has said, involving the mental health of the children the subject of these proceedings. 

11. There is a report which urges this court to deal with this matter as expeditiously as possible and a transfer to the Federal Magistrates Court would inevitably involve further delays. 

12. For those reasons I propose to dismiss paragraph 2 of the application.

13. With paragraph 3, the father seeks that the parties be allowed to provide further affidavit material.  I have already dealt with that and I confirm that I will be dismissing that application.

14. I have listened closely to what the father has said in support of his application.  It seems to me that the sort of information that he has put before the Court is the sort of information which he should have put in his affidavit.  They were not really submissions, but rather he was putting factual information before this court effectively from the bar table. 

15. I have the option to simply take no notice of what the father put because it was factual material which should have been in an affidavit.  However, I am not going to do that.  I am going to take into account what the father has said.  However, in my view nothing that the father has said has changed my view about any order that he seeks in his application.

16. It is now a matter of setting the first day of trial and I have raised with the father and the Independent Children's Lawyer, Mr Stephen, what matters might need to be attended to in preparation for that first day.  The usual requirements are firstly, that there be questionnaires filed.  That has been done, and I do not see any need for any updating of those questionnaires in the circumstances of this case.

17. The next document which is important to be available for the first day of trial is a children and parents' issues assessment.  We have that.  That was done by Ms B on 7 November 2008.  The father has said he has issues in relation to that assessment.  He wants to look at the “transcript” of the interviews by the Family Consultant and he wants to challenge, presumably, everything about her assessment including her process and her conclusions.

18. I have explained to the father that there is no “transcript” but there would be notes made by Ms B.  In normal circumstances the father would need to issue a subpoena for the production of those notes but because the Family Consultant is employed by the Court those notes are readily available upon request.

19. The next topic I have addressed is the orders sought by the parties.  There is an amended application filed by the mother of relatively recently times, which sets out the orders she seeks.  I note of course that the mother is not in attendance today but I have dealt with that earlier today and I am proceeding in her absence. 

20. The father needs to file an amended response.  He tells me that there is a further order that he seeks in addition to the orders in his amended response filed in March 2008 and there is also a need for him to change the terminology, to bring it up to date.  As I said, I am not fussed about that, but if he is going to file an amended response he might as well update the terminology.  He has indicated he would like two or three weeks to file that response and I am comfortable with that. 

21. They are the documents which would usually be before the court on a first day.  Mr Stephen has not identified any further documents.  The father, though, has touched on some other documentation.  I have dealt with his issues in relation to the Family Consultant's report, but he says that there is a subpoena which has issued to Families SA.  To try and cut a long story short, privilege was sought in relation to certain documents produced by Families SA and it seems that that was dealt with by a Registrar making a decision not to allow inspection and copying of those documents. As I have explained to the father, although he was concerned about Dawe J not dealing with it, the formality is that he would need to make an application for review of the registrar's decision.  He has taken that on board and I understand that is what he will proceed to do.

22. There are a couple of other subpoenas which the father says he is looking to issue.  I do not need to concern myself about that today.  He needs to get leave to issue those subpoenas.

23. As far as I am concerned none of those issues can or should hold up the first day of trial.  The father, of course, is in prison and he will still be on the proposed first day.  He is comfortable to attend on that day by telephone and I have explained to him, briefly, what that day will be about. 

24. With the mother, I do not know what we can do about that.  Obviously the court will send a letter to her, if we have her address - presumably we do - advising her of today's hearing and the orders that I will make.  She will physically have to attend on the first day, although she can request that she attend by telephone.  I will leave that entirely to her.

I certify that the preceding 24 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 27 March 2009.

Associate