Green and Burnett

[2007] FamCA 134

FAMILY COURT OF AUSTRALIA

ESSEX & ESSEX [2007] FamCA 134

FAMILY LAW – CHILDREN – Children being present in court

APPLICANT: MRS ESSEX

RESPONDENT: MR ESSEX

FILE NUMBER: HBF 1141 of 2004

DATE DELIVERED: 27 February 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: BENJAMIN J

HEARING DATE: 27 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: The applicant wife in person

SOLICITOR FOR THE RESPONDENT: Mr P Welch

Orders

1. THAT the application for leave for the child born in October 1989 to be present in court today is dismissed.

2. THAT the mother’s application in a case filed 29 January 2007 is dismissed.

3. THAT costs are reserved to the trial.

4. THAT the hearing of the primary proceedings be expedited.

5. THAT the direction in regard to the filing of a certification of compliance be varied to withdraw that requirement.

   IT IS DIRECTED

6. THAT a copy of the reasons in relation to orders 1 and 2 above be taken out and placed on the Court file.

   IT IS NOTED

7. THAT this matter should be listed for hearing as soon as is practicable.

   IT IS CERTIFIED

8. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 1141  of 2004

MRS ESSEX

Applicant

And

MR ESSEX

Respondent

REASONS FOR JUDGMENT

1. There is an application before me by the mother in relation to the daughter of the parties, born in October 1989, seeking leave for her to be present in court whilst this matter is being heard.  As I understand it, that application is opposed.

2. The primary proceedings to be determined today relate to an application under section 114 of the Act for exclusive occupation of a home in Launceston.

3. It seems agreed that the daughter is attending a college in Hobart and this is her final year of high school. 

4. I invited the parties to make submissions to me as to what benefit the daughter would get in relation to sitting in court whilst her parents argued about this issue.  The husband's view was that the child ought to be spared from observing that conflict.  The wife’s approach was that it would enable her to understand how justice operated.  I raised with the wife as to whether that might enmesh or enmesh the child in the conflict between the parties. 

5. I also sought submissions as to whether the child ought to be given the opportunity to speak briefly in respect of the matter.  That was opposed.

6. It seems to me that the intention of parliament was to keep children out of court - they have made that very clear - and case law is such that courts are reluctant to bring children into court unless it serves some particular purpose.

7. In this case, I do not give the child leave to be present in court. 

I certify that the preceding 7 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate: 

Date:  26 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ESSEX & ESSEX