Grant and Curtis

[2009] FamCA 889

FAMILY COURT OF AUSTRALIA

GRANT & CURTIS [2009] FamCA 889

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

APPLICANT: Mr Grant

RESPONDENT: Ms Curtis

FILE NUMBER: MLC 1992 of 2008

DATE DELIVERED: 9 September 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 9 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the father’s application for Contravention filed 24 August 2009, and all other existing applications shall be adjourned to a telephone mention before Registrar Riddiford within the next 7 days, to be held on a date and at a time to be notified to the parties, to determine an urgent date to complete a final hearing.

2. That Registrar Riddiford is requested to write to the Registrar of the Children’s Court at Bendigo, copying in the parties in this case, advising:

   (a)That this Court urgently needs to know what is the happening in the case in that Court;

   (b)That this Court requests that any hearing proposed in that Court proceed as soon as possible; and

   (c)That this Court proposes to go ahead with the final hearing shortly.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1992 of 2008

MR GRANT

Applicant

And

MS CURTIS

Respondent

REASONS FOR JUDGMENT

1. This case started before me on 2 March this year.  I took the view then that it needed a hearing and to that end I immediately set it down to be heard in June.  At a telephone mention shortly before that, the Registrar was told of pending Children’s Court proceedings.  Their status was, from what I can ascertain, a little uncertain, but sufficient to persuade the Registrar that the hearing in this court needed to be adjourned.

2. The father has not seen five-year-old T since May of this year, although he has continued to see J (8 years’ old) for three out of four weekends, in accordance with the interim orders. 

3. Today is the listing of his application for contravention, filed on 24 August, against the maternal grandmother, with whom the children live in accordance with the interim orders.  Sadly she is unrepresented, as Victoria Legal Aid does not extend assistance to cover contravention proceedings.  Sadly too, there is no Independent Children’s Lawyer today for the same reason. 

4. I am now informed that, although the Department of Human Services has an application on foot in relation to the children in the Children’s Court at Bendigo, as yet no orders have been made.  The parties are due to appear there tomorrow for a dispute resolution conference.  The father does not believe that the case will settle, and in that instance, the case is likely to be adjourned to a contested hearing.

5. The children’s mother, a party to the overall proceedings in this court, but not to the contravention, has told me today that the Department of Human Services has advised her that they will be seeking a 12-month supervision order.  It seems that order would be supported by her and her mother.

6. I do not have a ready understanding as to why the case has not yet been dealt with in the Children’s Court.  Obviously enough, if an order is made in that court, then this court will no longer have jurisdiction during the life of that order.  This family, like others, is left in an unconscionably stressful position because of this division between State and Federal jurisdictions. 

7. This court and the Children’s Court have what is effectively an overlapping jurisdiction at present in relation to the respective applications.  It cannot be in the children’s best interests, or in their family’s best interests, or indeed in the community’s best interests, to have a duplication of hearings. Nor can further delay properly support the children’s needs.

8. I am going to ask Registrar Riddiford to write to his counterpart in the Children’s Court, to ascertain precisely what is happening in that court, to advocate the urgency of a hearing in that court, and to advise what is occurring in this court, in an effort to obtain the co-ordination that has been lacking this far.  That letter, and any response, should be copied to the parties in this case so that they may know exactly what is being communicated in both directions.

9. In the meantime, I am convinced that this court cannot afford to wait any longer.  I would have heard the father’s application for contravention today, however, it has only relatively recently been served on the maternal grandmother who, because she cannot be represented, has not been able to garner the material, and the witnesses upon whom she wants to rely, including workers from the Department of Human Services and the Contact Centre Services, as to her claimed reasonable excuse in not handing T to her father to spend time with him.

10. I am conscious that much of the evidence for the contravention application overlaps not only with possible Children’s Court proceedings, but more pertinently for my purposes, with the very issues that I need to decide in this case overall.  I am satisfied that the children’s best interests will be best served if I hear the case overall, and as a matter of urgency.  Unless and until an order is made in the Children’s court, I am not precluded from proceeding.

11. I propose a telephone mention with Registrar Riddiford within a week.  He will advise the parties of the actual time.  He cannot be reached at this moment to arrange it.  The mention is for the purpose of organising the trial date.  That will enable the represented parties to have their lawyers involved.  It will enable the court to try to arrange the closest possible hearing date.  I do not want this case left in abeyance or further delayed. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  9 September 2009