Harper and Pint

[2013] FamCA 13

FAMILY COURT OF AUSTRALIA

HARPER & PINT [2013] FamCA 13

FAMILY LAW – PRACTICE AND PROCEDURE - Appointment of an independent children’s lawyer in a contravention application

APPLICANT: Mr Harper

RESPONDENT: Ms Pint

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8349 of 2009

DATE DELIVERED: 21 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 21 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT:

1.The father’s contravention application be fixed for final hearing before me on 25 March 2013 estimated to take 1 to 2 days.

2.In the event that the mother wishes to rely on evidence in relation to the contravention application, she file and serve such evidence by 4.00 pm on 14 March 2013.

3.Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the children B born … October 2008 and A born … March 2010  be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations regardless of whether or not the parenting orders have been contravened or if contravened whether there was a reasonable excuse for contravention.

4.Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

5.Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

6.My reasons for decision be transcribed and, when settled, be released to the parties.

AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.
AND IT IS FURTHER NOTED BY THE COURT that after the Court adjourned an enquiry was received by the Court from the father in relation to an application by him to appear by telephone this day.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harper & Pint 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 8349 of 2009

Mr Harper

Applicant

And

Ms Pint

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me for mention today.  The respondent mother attends court, but the applicant father does not and his failure to attend is not explained.  He has been called at the door of the court and there has been no response. 

2. The application was filed on 7 January 2013 and was allocated an abridged mention date to today at 2.15 pm.  It is a contravention application in which there are some 23 alleged contraventions of parenting orders only two of which allege that the children or one of them was not made available to spend time with the father in accordance with an order of the court. 

3. I have not read the father’s lengthy affidavit material, and I have only briefly perused the contravention application. 

4. The parenting orders concern two young girls, the child B born in October 2008 and the child A born in March 2010.  There is a very significant history of litigation in this court with the parties acting as self-represented litigants.  The lack of legal representation has not, in my view, materially impeded their cases.  It is likely that had they been represented the matter would have seemed to have gone on forever (as it has). 

5. The contravention application itself will be dealt with by me as soon as practicable.  I will allocate a March date in light of the fact that the mother assures me that the girls are seeing the father on an ongoing basis.  It would be different if all time had ceased due to the unilateral action of the mother. 

6. I am concerned however about what (if any) orders ought be made at the conclusion of the contravention proceedings, that is whether I am satisfied that the orders have been contravened with or without reasonable excuse or whether there has been any contravention at all. 

7. Since the last final contested hearing, both children have been diagnosed or provisionally diagnosed as within the autistic spectrum. 

8. I am satisfied that input via an Independent Children’s Lawyer would be of assistance to the court at the time I come to consider whether there ought to be any variation to parenting orders as a consequence of the contravention application, and that is whether or not there is found to have been a contravention at all.  At that point I may also require that there be further reportable counselling undertaken by this court. 

9. Previously, Ms Simone Wunderlich was Independent Children’s Lawyer in this matter. 

10. This is a new and discrete application, it is not necessary, in my view, that the previous independent children’s lawyer be reappointed. 

11. The parties require a proactive and fairly resourceful Independent Children’s Lawyer above all.

12. I trust that Victoria Legal Aid, which provides representation in these cases, looks favourably upon the request that I make for the appointment of an Independent Children’s Lawyer in these contravention proceedings.  The children are very young, each girl has special needs and the parents are enmeshed in parental conflict which is so high it seems to be all consuming.  This is not the first contravention application since final parenting orders were made in 2011.  The input of an independent children’s lawyer now will, I hope, reduce the incidence of proceedings in the future.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 21 January 2013.

Associate: 

Date:  23 January 2013