Fulwood and Wettons (No 2)

[2009] FamCA 1203

FAMILY COURT OF AUSTRALIA

FULWOOD & WETTONS (NO. 2) [2009] FamCA 1203

FAMILY LAW – PROCEDURAL – Affidavits

APPLICANT: Mr Fulwood

RESPONDENT: Ms Wettons

INDEPENDENT CHILDREN’S LAWYER: Terry Stephen

FILE NUMBER: ADF 1140 of 2003

DATE DELIVERED: 22 July 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 22 July 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr M Boehm

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Terry Stephen

Orders

1. That leave is granted nunc pro tunc to the father to file the affidavit of C Fulwood and A Fulwood on 15 July 2009.

2. That the affidavit of the mother filed on 10 July 2009 be uplifted and leave is granted to the mother to file and serve her updated affidavit of evidence in chief within 14 days of the date hereof.

3. That leave is granted to the father to call as a witness Dr C.

4. That by 4:00pm on 31 August 2009 the father file and serve an application seeking orders for the removal of Ms B family consultant and a supporting affidavit.

5. That the time for the father to file and serve his affidavit of evidence in chief updating the affidavit filed on 6 August 2007 be extended to 4:00pm on 31 August 2009.

6. That this case be adjourned part-heard to 9:00am on 11 September 2009.

7. That leave is granted to the father and the mother to attend the adjourned hearing by way of 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 is a continuation hearing in this less adversarial trial.  The first day of trial was held on 1 May 2009.  I made a number of orders designed to prepare this matter for trial, and also to deal with various applications that the father foreshadowed in his application of 23 April 2009. 

2. In terms of preparation for trial, the mother filed her affidavit on 10 July 2009. That was late but I am not fussed about that.  What I have raised is that it is a handwritten affidavit, but, unfortunately, in the photocopying process the right-hand side of the page has been cut off.  Thus no one reading it can follow entirely each paragraph.  The mother will need to re-do that affidavit, and I propose to make an order about that. 

3. The father has not complied with my order for the filing and serving of his updating affidavit.  He tells me that the reason for that is that he has made a complaint to the Chief Justice, and he was waiting to receive a response.  He has now received a response which, in effect, he tells me says that the matter should proceed and then the father can take up any issue that he wants to after the conclusion of the matter.  In his words, he is now happy to proceed with the matter and prepare his affidavit.  I will not repeat what I have said about that, but I will repeat this much, that it is not for the father to determine how this case is to run.  It is for me.  And when I make an order it is to be obeyed. If, though, circumstances arise where that order cannot be complied with for any reason, then the expectation and the requirement on the parties is to make an application for an extension of time so that the issue is aired and everyone knows what is going on.  That said, I am prepared to give the father one final opportunity to prepare his further affidavit.  In that regard, he sought until the end of August to file that affidavit.  That is opposed by the mother, but Mr Boehm has no difficulties with it. In my view, given the circumstances of the father, and particularly him being in prison. I will give him until the end of August, so there can be no argument or issue about it.  On this basis I have indicated to the father that if he does not comply with the order this time, then he will not have any further opportunity to file an affidavit and he will need to simply rely on his earlier affidavit.

4. I should note that the father has filed the affidavits of two of his witnesses.  They were filed late, but, again, I am not fussed about that.  The father has indicated that he is not now proposing to call Mr N.  Thus his only lay witnesses will be C Fulwood and A Fulwood, whose affidavits he has now filed.

5. Next, the father previously raised the need for Dr C, who has prepared two reports in this matter, to be called as a witness.  I have now had the opportunity to look at Dr C’s reports, one filed on 22 March 2007 and the other on 6 September 2007.  The earlier one was prepared in the context of an application by the paternal grandmother to spend time with the children, and did not involve the father.  In my view, therefore, that report is not relevant to these current proceedings. The second report, though, did deal with the father’s position.  It did, also, deal with the position of the paternal grandmother, but for my part, that part of the report which deals with the application of the father is relevant. It is necessary historical material in this case.

6. Mr Boehm has indicated that the Independent Children’s Lawyer does not see a need to call Dr C, and the mother says likewise. However, I am prepared to allow Dr C to be called by the father.  He will need to make the arrangements for his attendance and the like, and I leave that entirely up to him.  Clearly though, I am only allowing Dr C to be called in relation to the current application that is before the court.  The father has rightly raised that the other aspects of Dr C’s report may become relevant if either the mother or the independent children’s lawyer make an application to discharge the current order, which provides for the children to spend time with their grandmother. At the moment there is an order in place, and there is no application before me to discharge that.  Perhaps to put a finer point on that, that was one of the reasons why, in my view, not all of Dr C’s reports are relevant.  In that regard, Mr Boehm has indicated that he would like to reserve his position.  It may be that the independent children’s lawyer does make such an application, but at the present time nothing is before me so that is how I propose to proceed.

7. The next issue is in relation to Ms B, who is the family consultant in this case.  In his application of 23 April, the father sought leave to file an application and a supporting affidavit seeking the removal of Ms B.  He indicated that before he could file that application he wanted to see the notes of Ms B.  That has now been attended to, in that a copy has just been forwarded him by the court. The father, though, has explained that he has only been able to access those notes, and I understand the reason for that.  Thus he needs more time to file that application and supporting affidavit, and although that is opposed by the other parties, for the same reasons that I indicated earlier, I am prepared to give the father one further opportunity to pursue that and to file his documents in that regard.  He seeks until the end of August for that, and I am prepared to allow that time.

8. However, again, this is his last opportunity to make this application. I have indicated that I am not prepared to hold up the progress of the trial, and thus the situation is, if the father doesn’t file an application and supporting affidavit by the end of August then I will, obviously, hear any application for a further extension of time but as currently advised, I wouldn’t be disposed to grant any further extension.  Thus the father is on notice about that as well.

9. Separate to that, there were a number of orders made on 1 May providing leave to the father to file and serve applications in relation to various topics, and a timeframe was set, and that was in accordance with the request of the father.  The father has not been able to file any documents in the timeframe. Thus that leave has expired and that is the end of those matters as far as I am concerned. 

10. I also adjourned to today, for further consideration, the father’s application for leave to file contravention applications the father has not pursued that, and thus that issue is also finalised at this point.

11. Dealing with the continuation of the trial.  As I have said, I am giving the father until the end of August to file his updated affidavit of evidence-in-chief, and I propose to have a further continuation hearing at 9:00am on 11 September 2009.  What I have in mind is, obviously, allowing a short time before the hearing for the independent children’s lawyer and/or the mother to file any responding affidavit to, not the affidavit of evidence-in-chief of the father, but the application and affidavit that he files in relation to Ms B. As I said, I want to deal with that on a final basis on 11 September 2009 one way or the other. Then I will be in a position to list this matter for a conclusion hearing.

I certify that the preceding 11 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 22 July 2009.

Associate