JRM and RA - [2004] FMCAfam 89

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JRM & RA

[2004] FMCAfam 89

FAMILY LAW – Children – contact – best interests of child – mother fails to comply with interim consent orders for contact.

PRACTICE AND PROCEDURE – Costs – circumstances justifying order – neither party ready to proceed with final hearing – costs of Child Representative thrown away – parties to pay for updating Family Report.

Family Law Act 1975 (Cth), s.117

Applicant:

R M J

Respondent:

A R

File No:

MLM 2448 of 2003

Delivered on:

11 February 2004

Delivered at:

Melbourne

Hearing date:

11 February 2004

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Ms Robertson

Solicitors for the Applicant:

Vivien Mavropolous & Associates

Solicitors for the Respondent:

Mr Horvat
Frank J. Horvat & Co. Pty.

Counsel for the Child Representative:

Ms Agresta

Child Representative:

Ms King
Victoria Legal Aid

ORDERS

The parties shall forthwith do all acts and things necessary, including filling in all application forms and attending any interview or meeting as may be required by the B C C, B, in order to facilitate the use of the centre for the purpose of supervising contact pursuant to these orders.
Upon the parties acceptance into B, the father is to have supervised contact with the child J R, born 3 March 1996, for two hours every fortnight at times and on dates as arranged by the coordinator at B or her nominee and the cost of the service, if any, is to be shared equally between the mother and the father.
The child representative is to be permitted to obtain a report from B as to the progress of the supervised contact.
The further hearing of all applications is to be adjourned to Wednesday, 15 December, to go to Thursday, 16 December 2004, at
10 am and the matter must proceed on the next occasion.
The parties are to file and serve any further affidavit material upon which they seek to rely by 4 pm on Friday, 3 December 2004.
The parties are to share equally the cost of any further report or updated family report.
The parties are to pay the costs of the child representative of the day set at $1365 in the following proportions:
(a)as to the applicant father one-third;
(b)as to the respondent mother two-thirds.
I grant liberty to apply in respect of any contact issue on seven days' notice.
I require a transcript of my reasons for this decision.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 2448 of 2003

R M J

Applicant

And

A R

Respondent

REASONS FOR JUDGMENT

Application

The application before the court today is an application by the father, a child called J who was born on 3 March 1996, for contact with that child. The parties have been separated for virtually all of the child's life. The mother has formed a new relationship, which is apparently a stable relationship, and has two children from that relationship. The father seeks contact with the child.
On 25 August 2003 the parties entered into orders by consent providing that the child should attend on R A for the purpose of counselling with respect to reintroduction of contact between the child and the father, abide by any reasonable recommendations and requests of the counsellor. Further, the contact between father and child should recommence on a supervised basis at the B contact centre if it were recommended by the counsellor, the child representative should be at liberty to obtain information, that if there was such a recommendation for contact, the parties should do all things necessary to arrange for that contact at B, that there then should be contact and that proceedings be listed for final hearing at this court on 11 February 2004 for an estimated hearing time of two days.
A family report has been ordered and was released on 7 January 2004. In that report the recommendation was made by the counsellor that there should be at the very least a trial of supervised contact. Regrettably, this has not happened. There is a child representative who has been appointed pursuant to section 68L of the Family Law Act.
What appears to have happened is that two days before the scheduled hearing date on Monday, 9 February, the applicant formed the view that proceedings would need to be adjourned. The principal reason was that there had been no contact as envisaged by the consent orders of 25 August. The father's case therefore would be seriously disadvantaged by the fact that the father had had no opportunity to demonstrate an adherence to a contact regime, albeit a supervised contact regime with all its attendant limitations.
Ms Robertson of counsel for the father also informed me that it was only then that the applicant had received an unsealed copy of an affidavit from the maternal grandmother which was sought to be filed and that that too was a factor which caused some concern about the hearing proceeding. That affidavit seems not to have been filed. It is certainly not before me and it is of course conjectural as to whether the court would have allowed such a late affidavit unless it contained matters of such relevance that it would cause a miscarriage of justice if it were not to be admitted.
Telephone discussions took place between the solicitors for the applicant and the respondent with the child representative. What was sought was an administrative adjournment, and I am told by both counsel for the applicant and the solicitor for the respondent that some telephone conversations took place with a deputy associate of the federal magistrate who was believed to be hearing the matter today.

I am not aware of the substance of the conversation, although I would make it quite clear that the adjournment at short notice of a two‑day final hearing with a family report and a child representative is a serious matter which would not normally be undertaken lightly. The heavy workload of this court would mean in fact that the envisaged adjournment for hearing of another three months would be extremely unlikely to take place and indeed a block of two days for hearing is unlikely to be available before December.
On 9 February the applicant's solicitor forwarded a letter to the court, incorrectly addressed I notice - the court is known as the Federal Magistrates Court, not the Federal Magistrates' Service - indicating an adjournment was sought by consent and that the solicitor had spoken to the child representative, Ms Paula King, who was happy to consent to an adjournment providing it was forthcoming from the respondent's solicitor also. The letter went on to say:
We have endeavoured to contact the respondent's solicitor but have been unable to ascertain his unequivocal position on the matter. We anticipate that should he also consent, he will notify you in writing by 12 pm on Tuesday, 10 February.
On 10 February the respondent's solicitor forwarded a letter to the court consenting to the adjournment. On that same day the child representative forwarded a letter to the court indicating that she had been advised on the morning that the parties had agreed to have the trial adjourned for a period of three months and she said:
I advise that I reluctantly consent to the trial being adjourned and note that I am disappointed the parties could not use tomorrow's hearing date to try and negotiate interim orders for contact in accordance with the recommendations made by the family report writer, Mr E B. I am also concerned that by the trial being adjourned, the family report could become outdated and may require a further updated report to be prepared.
She went on to say:
I understand from the father's solicitor that as long as all parties in this matter have forwarded to the court a letter consenting to the trial being adjourned, we would be excused from appearing at court tomorrow.
The first comment I would make is that the concerns expressed by the child representative were indeed legitimate concerns. The court is constantly aware of the danger of family reports becoming stale, to use the vernacular. The court is also concerned, with its heavy workload, that there needs to be the most efficient use of the court's time. To throw away court time at short notice represents a loss to the Commonwealth and represents a loss of an opportunity to other litigants with a legitimate dispute which they seek to have heard by the court at the earliest possible opportunity. Delay in these proceedings is hardly in the best interests of the child concerned.
The fact is that contact has not taken place even though the mother did attend at R A in accordance with order 1. That appears to be about as far as she has gone to comply and indeed her solicitor, Mr Horvat, made it clear today that the mother is a most reluctant participant and that she will only do what she is specifically told to do. I can only take at face value the fact that she consented to the orders, but if there was any agreement between the parties, there certainly is not now.
It is a matter of concern that the matter cannot be now heard for a number of months and that there may be a need for an updated family report. It certainly should not be the position that the court should pay for that report. I am also in agreement with the sentiments expressed by the child representative that the day has been thrown away. The father has attended but the mother has not and so there was no chance even for any negotiation, even if there was any possibility of any negotiation taking place. I am certainly not prepared to adjourn the matter with no progress being made towards a resolution for a period of 10 months. If it is a fact that the mother will not participate in the progress of this matter without being ordered to do so, then she will be ordered to do so.
As I have indicated, supervised contact may not work. I do not know if it will work or not. The only way to see if it will work is whether it is tried and when it is tried under properly supervised conditions with the child representative being given the ability to monitor that process.
I have considered also the question of costs. I am mindful of the fact that each party is legally aided and there seems to have been some great confusion. I should make it clear this court does not take kindly to an underestimation of the seriousness of adjourning children's matters, especially where resources such as children's representatives and family reports are concerned. A child representative is usually provided by Victoria Legal Aid in this state and I am aware of the fact that Victoria Legal Aid, like most legal aid agencies, does not possess unlimited funds. It is important that those funds should be used as cost-effectively as possible for the benefit of the many people who legitimately require legal assistance.
I am of the view that the costs of the child representative should be paid by the parties and I am of the view that the respondent mother should pay two‑thirds of those costs and the applicant father should pay one‑third. I am also going to order that any further report or any updated family report is to be at the cost of the parties in equal shares because I do not see why the court should spend more of the Commonwealth's money in preparation of the report when the court was ready, willing and able to hear these proceedings today. There will be a trial of supervised contact. The parties are going to have to comply with it. The matter will proceed in December and it will have that marking.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 3 March 2004