HAHN & CARVER

[2014] FamCA 549

FAMILY COURT OF AUSTRALIA

HAHN & CARVER [2014] FamCA 549

FAMILY LAW – CHILDREN – Where interim orders have been made preventing the mother from returning with the child overseas – Where the father has been charged with several serious assaults against the wife following the interim orders – Where the criminal proceedings will most likely be determined overseas – Where the father may be prejudiced in the criminal proceedings if he gives evidence at a final hearing – Where the final hearing is to take place after the resolution of the criminal proceedings – Directions made for the filing of material following the resolution of the criminal proceedings.

FAMILY LAW – CHILDREN – FAMILY REPORT – Where there is a complex interplay between the age of the child, the relationship with the parents, the effect of the interim orders and that the child will not spend time with the father – Further Family Report ordered. 

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

APPLICANT: Mr Hahn

RESPONDENT: Ms Carver

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 1549 of 2013

DATE DELIVERED: 22 July 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Berman J

HEARING DATE: 21 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Strum

SOLICITOR FOR THE APPLICANT: Susan Snyder

COUNSEL FOR THE RESPONDENT: Mr Wilson

SOLICITOR FOR THE RESPONDENT: Kennedy Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

UPON NOTING:-

(a)That all applications for final orders have been adjourned before Justice Berman on 16 March 2015 at 10am as a 5 day matter in the Melbourne Registry of the Family Court of Australia;

(b)That the Court respectfully requests that the Department of Immigration and Border Protection give all possible consideration to any application made by the wife to enable her to remain in Australia until the conclusion of these proceedings.

Orders

1. That by 4pm on 16 February 2015 the applicant file and serve upon all other parties:-

   (a)an amended application setting out with precision the orders to be sought;

   (b)the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting the affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

2. That the applicant pay all setting down and trial fees by 4pm on 30 October 2014.

3. That by 4pm on 23 February 2015 the respondent file and serve upon all other parties:-

   (a)an amended response setting out with precision what orders are being sought;

   (b)the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief);

1. That by 4pm on 4 March 2015 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

1. That by 4pm on 23 February 2015 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.

1. That no party file any further material other than as provided by these orders without leave of the Court.

1. That prior to the commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outline of case.

1. That the parties attend upon and at the direction of a Family Consultant but in this case Dr C for the purpose of the preparation of an update or addendum Family Report at the joint cost of the parties NOTING the earlier report was published by her on 4 June 2014.

2. That the Family Consultant be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken.

3. That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file and the registrar shall be satisfied as to the relevance of the requested subpoenae upon the certification of the party’s lawyer.

1. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

2. That the practitioners for the parties file and serve electronically to … by 4pm on 11 March 2015 the following:

   (a)       a concise set of orders to be sought if different from those already filed;

   (b)a list of the applications and affidavits to be read out and if not the whole affidavit, the relevant paragraphs relied upon;

   (c)       a list of objections to evidence upon which rulings are required; and

   (d)       a bullet-point summary of argument in relation to the issues in dispute.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hahn & Carver has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1549 of 2013

Mr Hahn

Applicant

And

Ms Carver

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. This matter came before me on 17 July 2014 as a first day hearing.  The parties were present and represented by counsel.  Counsel also appeared for the Independent Children’s Lawyer (“ICL”).  On that occasion I adjourned the matter to 21 July 2014 to consider my availability to list the final hearing in March 2015.

2. The proceedings generally relate to the future parenting arrangements of the child M born in 2011 (“the child”).

3. Interim orders were made by Cronin J on 2 July 2014 supported by extensive reasons for judgment.  I refer to the uncontroversial history and background as set out in his Honour’s reasons and do not propose to repeat same.  The proceedings generally are in respect of the wife’s application to return with the child to live in Canada and the husband’s opposition to those orders by her.  The wife and the child are currently in Australia following her unsuccessful opposition to an application made under The Convention on the Civil Aspects of Child Abduction (“the Hague Convention”).  Two days after the decision requiring that the child should be returned to Australia the husband was arrested and charged with having committed four serious assaults on the wife.  All parties agree that those charges are likely to be heard and determined in Canada in December 2014.  Obviously the wife will be a witness.

4. With some reluctance on the part of the wife, there was ultimately a concession that the final hearing in these proceedings could not reasonably take place until the conclusion of the criminal proceedings. As was recorded by Cronin J, there had been previous argument before MacMillan J in 2014 as to whether it would be appropriate for the husband to give evidence in these proceedings without there being any substantial prejudice caused to his defence in the criminal proceedings in Canada. Whilst the discussion centred on the extent to which an evidence certificate under Section 128 of the Evidence Act 1995 (Cth) would give some protection to the husband, ultimately the issue of the certificate would have served no purpose and by implication there was acceptance that to require the husband to give prior evidence in these proceedings might well prejudice his defence.

5. Accordingly a trial date has been set predicated on the best assessment of the parties as to when the criminal proceedings are likely to be resolved.

6. There may be unforseen hurdles to the timely resolution of the criminal proceedings but at this stage I am only able to make orders reliant upon the best information available.

7. A possible impediment to the final determination of the proceedings arises from the wife’s status in Australia being dependent upon a visitor visa that at this stage is likely to expire in the near future.  This was a relevant factor before Cronin J and I note that his Honour received evidence from a solicitor who is an accredited specialist in immigration law.  The short summary is that it is not inevitable that simply because there are extant proceedings the Department of Immigration and Border Protection will as a matter of routine extend the wife’s current visa or issue a new visa.  As Cronin J properly noted:-

   It may be that events overtake these proceedings.

8. All that can be said is that whilst the proceedings involve the parties its focus is at all times a determination of what is in the best interests of the child.  The child is 32 months of age and the ability of the child to develop and form appropriate relationships with significant people in her life is very much the foundation for the orders made by Cronin J on 2 July 2014.  The Court has given the circumstances in which the child finds herself careful consideration. The untimely requirement that the wife return to Canada before the proceedings have concluded are likely to excite further urgent interim proceedings and the potential for the disruption to relationships between the child and her parents before the Court has a proper opportunity to give comprehensive consideration to the issues that are likely to have an impact on the child would be adverse to the child’s best interests. 

1. Accordingly, I propose to make trial directions which would see affidavit material upon which the parties intend to rely be filed at the conclusion of the criminal proceedings.  Whilst the time for the filing of affidavit material is necessarily truncated, counsel assure me that it can be accommodated.

2. I note the most recent report of Dr C (the family consultant), is dated 4 June 2014.  Ordinarily a further report would not be required but I note the recommendations as set out in paragraph 50 to 53 of the said report and also that the complex interplay between the age of the child, her development, the relationship that she has with each of her parents and the effect of the orders made on 2 July 2014 and in particular the significant periods that the child will not spend time with the father are matters that potentially need to be considered. I propose to order that a further report be prepared.

3. I make orders appear at the commencement of these reasons.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 22 July 2014.

Associate: 

Date:  22 July 2014