Hartford and Ansilda (No. 4)

[2008] FamCA 607

FAMILY COURT OF AUSTRALIA

HARTFORD & ANSILDA (NO. 4) [2008] FamCA 607

FAMILY LAW  -  CHILDREN  -  trial adjourned  -  application to extend time with child pending adjourned date.

Family Law Act 1975 (Cth)

FATHER: Mr Hartford

MOTHER: Ms Ansilda

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10686 of 2007

DATE DELIVERED: 21 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 21 July 2008

REPRESENTATION

COUNSEL FOR THE FATHER: Mr I.F. Mawson SC
with Mr M. Wood

SOLICITOR FOR THE FATHER: Gillian Coote Family Law

THE MOTHER: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms. M. Vohra

INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

1. That the competing applications for final parenting orders in respect of the child … born … December, 2006, and the father’s application for the mother to be dealt with for contravention of orders, be adjourned for trial on 25 August, 2008.

2. That the mother pay towards the father’s costs thrown away this day the sum of $7,000, and such costs be paid within three months hereof. 

3. That the costs of counsel for the independent children’s lawyer be fixed at $1,760 and reserved. 

4. That the Court cause a sealed copy of these orders and the reasons for judgment, to be sent to :

   (a)the registrar of the Children’s Court, Melbourne;  and

   (b)the registrar of the Magistrates’ Court of Victoria at the Moorabbin Justice Centre;

   with a request that they be brought to the attention of a court before whom an application for an intervention order is made which concerns (in any capacity) the mother, father or the child. 

5. That the mother file and serve any affidavits on which she intends to rely by 18 August, 2008. 

6. That prior to the adjourned date Mr. V (who wrote the family report released to the parties herein) be permitted to read all reports prepared by Dr. E which are filed herein and all affidavits filed by or on behalf of a party since preparation of his family report. 

7. That the reasons for judgment this day be transcribed and copies made available to the parties.

8. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including senior counsel.

AND THE COURT NOTES

1. The solicitor for the mother then on the record filed a notice of ceasing to act on 10 July, 2008.

2. The mother advised the court that on or about 17 July, 2008 she made an application for legal aid which she believes will be determined within a week. 

3. The mother advised that if legal aid is not granted she intends to approach family and friends to enable her to retain a solicitor. 

4. The court was advised that an application brought by the mother in the Children’s Court at Melbourne seeking an intervention order in respect of the child has been adjourned to 25 August, 2008 and that applications brought by a member or members of Victoria Police seeking intervention orders, respectively, in respect of the mother and father has be adjourned to the Magistrates’ Court of Victoria, sitting at the Moorabbin Justice Centre, on 22 August, 2008. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 10686 of 2007

MR HARTFORD

Father

And

MS ANSILDA

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Earlier today I granted the mother’s application to adjourn this trial, which will be listed before me on 25 August, 2008.  I will not repeat the reasons for the initial grant of expedition, which led to its listing today.

2. The father is presently seeing his not yet two year old daughter, pursuant to orders I made on 18 April, 2008.  On that day I extended the time he was to have with the child and that extension of time was not made by consent.  He presently sees the child on Tuesdays and Thursdays from 9:00 am. to 1:00 pm. and on Sundays from 9:00 am. to 5:00 pm.

3. Senior counsel for the father has made an oral application that overnight time be introduced, pending a final determination.  His client expected the trial to start today and a result in the near future.  The adjournment necessarily puts off that final result.  The mother is not legally‑represented today, so there is no‑one to advance arguments in opposition.  I am mindful of the opposition that has been put on her behalf in respect of each application for extension of time to date, and the application to delete supervision. 

4. Whilst the case the court has to determine is, as I made clear earlier, a residence case, it must not lose sight of the fact that the mother maintains her allegations that the child is at risk of sexual abuse in the father's care.

5. The court cannot be seen to prejudge a central issue in this case, which is the question of the acceptability of risk.  I have read the report of Dr E and appreciate the apparent strength of the father’s case.  But the mother is entitled, whether acting for herself or through a lawyer, to challenge Dr. E’s evidence and the evidence of the family reporter.  In my view, given that the adjourned date is only four weeks away, it would be premature to act now on the basis of untested evidence, in circumstances where I can be comfortable that the child continues to see her father frequently and regularly.

6. I cannot stress strongly enough, Ms Ansilda, the importance of complying with the existing orders in this period before trial.  It is vital that you understand the importance of that and the potential effect on the case you advance at trial of a finding of non-compliance. That is not a threat.  You are not legally represented today.  If represented, your lawyer would tell you what I have just told you and you should not be disadvantaged by the absence of a lawyer, in that sense.  It is important you understand that in this interregnum, contact is to continue pursuant to the existing orders.  I do not propose to extend the father’s time with the child to include longer periods, or overnight time.

7. In terms of material I will order that the mother file any affidavits on which she intends to rely by 18 August.  There is no need for the father to reply to those;  he can respond to any new matters in the witness box.  I add that the mother has filed numerous affidavits to date and the failure to file a comprehensive affidavit of evidence-in-chief played no role in my decision to adjourn the case today.  If otherwise able to proceed she could have relied on the earlier affidavits and given some updating oral evidence.

8. You have liberty to apply to list the matter for mention after 18 August, on notice to the other parties, and by contact with my associate. 

9. Counsel for the ICL has advised that Mr. V, the family reporter, has not read the updated report of Dr E and will not do so without an order of this court.  I consider it appropriate to make that order.  I will also grant him leave to read all affidavits filed since he prepared the family report. 

I certify that the preceding
9 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.