Holmen and Farley

[2007] FamCA 726

FAMILY COURT OF AUSTRALIA

HOLMEN & FARLEY [2007] FamCA 726

FAMILY LAW – PRACTICE AND PROCEDURE  - Adjournment – Father facing potential jail term

Family Law Act 1975 (Cth)

FATHER: MR HOLMEN

MOTHER: MS FARLEY

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 678 of 2004

DATE DELIVERED: 4 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 4 July, 2007

REPRESENTATION

FATHER In Person

COUNSEL FOR THE MOTHER: Mr. Combes

SOLICITOR FOR THE MOTHER: McGindle Dalgleish

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: McCarthy Hoey

Orders

1. That the trial date of 9 July 2007 be vacated.

1. That all extant applications be adjourned for Mention at 9.30am on 9 August 2007 and the father have leave to appear by telephone.

1. That the subpoena list date of 5 July 2007 be vacated and in respect of the subpoena addressed to Victoria Police Subpoena Management Unit:

(a)all documents produced pursuant to it may be released for inspection by the parties; and

(b)a copy of all documents produced shall be made by the Court and posted to the parties at their respective addresses for service.

1. That a copy of the Notice of Address for Service filed on behalf of the mother on 4 May 2007 be posted by the Court to the father at his address for service.

1. That there be general liberty to apply, on notice in writing. 

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and solicitor appearing as counsel.

AND THE COURT NOTES

1. That the father is remanded to appear for sentence in the Magistrates’ Court of Victoria at R on 7 August 2007 and in the event he is placed in custody that day (whether on remand or pursuant to a sentence) he will ensure the associate to the Honourable Justice Brown is advised.

1. That if the father is in custody on the adjourned date, he will appear by telephone (subject to arrangements being made between the Court and Corrections Victoria) and if he is not in custody, he may appear by telephone.

1. Subject to orders to the contrary on the adjourned date, and provided that the father is not in custody, it is the Court’s intention to list the trial of the competing parenting applications to commence on 8 October 2007 or such earlier date as may be available.

1. At the trial the father intends to adduce evidence recorded on a video and on a cassette tape.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 678 of 2004

MR HOLMEN

Father

And

MS FARLEY

Mother

Independent children’s lawyer

REASONS FOR JUDGMENT

1. This matter is listed before me for a trial to commence next week.  The father has not seen his child for many months.  He was in custody, bail refused, for about three weeks earlier this year.  He was then sentenced to an intensive corrections order relating to (he has advised) a six-month term of imprisonment.

1. Initially the father told me that his corrections officer has applied on his behalf for him to be resentenced.  Having discussed it further, it now appears that the intensive corrections order was cancelled on 12 June 2007.  The father has told me there was a requirement for him to undertake community work as a condition of that order.  His doctor and psychologist provided reports to Corrections exempting him from undertaking that work;  for that reason he could not comply with the intensive order.  His advice is that bail was reinstated;  he is now on bail, due to appear at the R Magistrates’ Court on 7 August 2007 for resentencing.

1. Initially the father told me that he hoped the existing sentence might be replaced by a suspended sentence or if he were to serve a period of imprisonment, it might be “delayed” until he was able to complete various therapeutic interventions.  The father expressed optimism that the fact he has been released on bail means he will not be given a sentence of imprisonment on 7 August which will take immediate effect.  I do not think I should say anything about that, save to say it is impossible to say whether he will leave court a free man on 7 August.

1. The father is keen to have the trial proceed, notwithstanding the uncertainty generated by his forth-coming appearance at the R Magistrates’ Court.  The independent children's lawyer has submitted the trial should be adjourned.  He is concerned about the potential for an immediate sentence, which would impact on the question of the time he could spend with his child.  He is also concerned to ensure the father has the benefit of the continuing therapeutic interventions of which he spoke, in order to maximise his chances of obtaining orders for contact.  The father may need to obtain some expert medical evidence;  if he is not well enough to do community work, the Court may need to consider whether he is well enough to be involved in hands-on parenting.  As I am unaware of the reasons advanced for the exemption from community work, I can say nothing further about that at this time.

1. While I am satisfied that this application is made by the independent children’s lawyer for the benefit of the father, I do not propose to adjourn the trial against the father’s opposition.  I make it clear to the father, and to the other parties, that the Court will then deal with the evidence before it.  If an assessment of probabilities in the future is necessary, that will occur.

(DISCUSSION)

1. The father having been given time to consider his position, he now supports an adjournment.  I will list the case for mention on 9 August at 9:30 am.  By then the father should know the outcome of his resentencing.  He has assured me he will ensure a family member advises the Court if he is sentenced to an immediate term of imprisonment.  In or out of custody, he may appear on 9 August by telephone.

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

Dated the           day of            2007.

…………………………………………
Associate.

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