HAMPTON & COUNSEL

[2012] FamCA 608

FAMILY COURT OF AUSTRALIA

HAMPTON & COUNSEL [2012] FamCA 608

FAMILY LAW – ORDERS – Interim parenting and procedural orders pending the trial

Family Law Act 1975 (Cth)

APPLICANT: Mr Hampton

RESPONDENT: Ms Counsel

INDEPENDENT CHILDREN’S LAWYER:	Septimus Jones & Lee
FILE NUMBER:	MLC	8750	of		2010

DATE DELIVERED: 12 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 12 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schetzer

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Watts

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Septimus Jones & Lee

IT IS ORDERED THAT

1. Paragraph 3 of the order made on 2 April 2012 be discharged.

2. The mother deliver the child G born … October 2003 (“the child”) to Ms S at 11:00am on 1 August 2012 and such other dates and times as may be recommended by Ms S for the specific purposes of meeting the father if it is determined by Ms S as appropriate to do so.

3. By 4:00pm on 20 July 2012 the applicant mother file and serve an affidavit setting out what has occurred since she consented to the orders on 2 April 2012 which has lead her to conclude that Ms S should not reintroduce the child to the father.

4. Forthwith upon receipt of the affidavit referred to in paragraph 18 hereof the Independent Children’s Lawyer provide a sealed copy of the affidavit to Ms S.

5. All applications for final orders be adjourned for hearing before Justice Macmillan at 10:00 am on 18 March 2013 as a 5 day matter.

6. The matter be listed for Mention before Justice Macmillan at 9am on 22 January 2013.

7. For the purposes of the final hearing the mother shall be the applicant and the father shall be the respondent.

8. By 4 pm on 23 November 2012 the applicant mother file and serve upon all other parties:

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

   (b)  any further affidavits of evidence in chief limited to matters arising since the filing of her last trial affidavit on 16 March 2012.

9. The applicant mother pay all setting down and trial fees by 4 pm on 8 March 2013 or obtain the requisite waiver thereof.

10. By 4 pm on 7 December 2012 the respondent father file and serve upon all other parties:

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

    (b)  any further affidavits of evidence in chief limited to matters arising since the filing of his last trial affidavit on 4 February 2012.

11. By 4 pm on 21 December 2012 the applicant mother file and serve any affidavit in reply to the affidavits of the respondent.

12. By 4 pm on 15 February 2013 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.

13. No party file any further material other than as provided by these orders without leave of the Court.

14. The parties and the child attend upon and at the direction of Dr K for the purposes of preparation of an updated family report not to be commenced until after 1 December 2012 but to be completed and released by 18 January 2013 and the costs of such report to be met equally by the parties.

15. Dr K be at liberty to consult with Ms S and inspect the court file and all documents produced under any subpoena to which objection to release has not been taken.

16. All parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

17. 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.

18. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar, the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

19. The practitioners for the parties file and serve electronically to the Associate to Justice Macmillan by 4 pm on 13 March 2013 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 and, if not the whole affidavit, the relevant paragraphs relied upon; and

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

20. The practitioners be at liberty to approach Justice Macmillan’s Associate, Miss Vercoe, for an urgent listing of the matter if required.

21. The mother have leave to withdraw the following affidavits:

    (a)Mr Y filed 16 March 2012;

    (b)Mr and Ms T filed 16 March 2012; and

    (c)Mr F filed 16 March 2012.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

AND THE COURT NOTES THAT

1. The Independent Children’s Lawyer will notify the Department of Human Services that the mother has reported the incident of 19 October 2008 to the Police and now seeks to rely upon that incident to support her case that the child should not be reintroduced to the father.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hampton & Counsel 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

FILE NUMBER:

Mr Hampton

Applicant

And

Ms Counsel

Respondent

REASONS FOR JUDGMENT

1. This matter was listed before me for Mention following orders that were made by me on 2 April 2012. 

2. Those orders were made by consent, and on that date it was ordered that the parties and the child, G born in October 2003 (“the child”) attend upon Ms S, at times and dates determined by Ms S, for the purposes of the child being re-introduced to her father.  It was further ordered on an interim basis that the child spend supervised time with her father if recommended by Ms S.

3. The orders also required the parties and the child to attend upon Dr K for a further family report six months after the re-introduction of the child to her father.

4. The history of this matter is that there were final orders made by consent after some days of a contested hearing on 5 November 2007.

5. Those orders, in summary, provided for the child to live with the mother and for the father spend time with the child, initially on specified occasions and supervised.  There was a notation to those orders that the supervision was for the sole purposes of assisting the mother with any anxiety with respect to these orders.

6. My understanding of the history of this matter is that following the making of those orders the father’s time with the child proceeded as ordered until the first occasion of unsupervised time which took place on 19 October 2008.  Following that time there was a further allegation which is referred to in the mother’s affidavit sworn 16 March 2012 when she alleged that she was told by the child, following her return from the first unsupervised time, “that dad hurt her bottom yesterday when she was on the toilet”.  She then deposes that the child told her that her father “…came in and tickled her bottom while on the toilet, and that dad had on a pink glove.”  I am told by the mother that this allegation was reported to the Department of Human Services and investigated, but there was no further action taken at that time.

7. I am now told by the mother that she has recently approached the police with respect to the allegation of the events of 19 October 2008 as she believes that the matter needs to be fully investigated.  She initially indicated to me this morning that she would consent to an order continuing the process of re-introduction, as proposed by the independent children’s lawyer.  However, she now opposes that order on the basis that the matter needs to be investigated by the police prior to any re-introduction of the father to the child.

8. Mr Schetzer makes an oral application for an order restraining the mother from taking the child to the police with respect to this allegation.

9. The independent children’s lawyer, whilst not supporting that such an order be made today, has indicated very clearly that, in her view, and she makes this clear in open Court and I am advised by the independent children’s lawyer that she has also spoken to the mother in similar terms, is that to take the child to the police is not in the child’s best interests.

10. The mother tells me she understands the basis and nature of what is being said by the independent children’s lawyer, but does not agree.

11. I am not, in circumstances where at the Mention, these matters have just been raised at the last minute and Ms Counsel is not represented, intending to make an order restraining her from taking the child to the police.  However, I would certainly urge her to take into consideration what has been said in open court by the independent children’s lawyer.  And whilst I am not in a position to make any findings, there are certainly issues raised in Dr K’s report which would suggest that to pursue this allegation may not be in the child’s best interests.

12. I am, in circumstances where the mother consented to the orders, and is now re-visiting allegations that have been on foot for some years, and certainly well prior to her consenting to those orders for the re-introduction of the child to the father, proposing to continue the process of reintroduction. And in circumstances where she, herself, was the person who nominated Ms S, I am certainly satisfied that Ms S is appraised of all the evidence in this case in relation to the allegations and that there is nothing to suggest that she will not be acting in the child’s best interests in terms of any process of re-introduction.  However, I will give the mother an opportunity to file an affidavit setting out the basis upon which she says that re-introduction should not occur, and in particular what has changed since she consented to those orders.  And that that affidavit should be made available to Ms S to consider in terms of the decision making process she goes through in determining the process of re-introduction.

13. I am also, however, extremely concerned that there must be an end date to this case and whilst the orders for the parties to attend upon Dr K six months after re-introduction might be preferable, I also satisfied that this case must be determined whatever the process of re-introduction.  I am not prepared to wait for the child’s reintroduction to the father to occur and I propose to set the matter down for hearing early next year, in the hope that in that time there will be a re-introduction. 

14. I am mindful of Dr K’s evidence that the long term impact of the child having no relationship with her father is significant.  So I will make orders in the short term for the filing of an affidavit by the mother, and I will make orders and directions setting the matter down for trial.  That will probably involve changing the six months time-frame for Dr K but I think the  matter must be dealt with one way or another.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 12 July 2012.

Associate: 

Date:  1 August 2012