Keightley and Keightley

[2012] FamCA 253

FAMILY COURT OF AUSTRALIA

KEIGHTLEY & KEIGHTLEY [2012] FamCA 253

FAMILY LAW - CHILDREN – interim orders – application by the mother seeking orders that one of the parties’ children live with her – where there are concerns that the child is being exposed to family violence in the father’s household – where the current orders provide that the child live with the father and spend time with the mother – where the father has not had an opportunity to file any responding documents – orders that the matter be adjourned briefly and that existing parenting orders be continued.

Family Law Act 1975 (Cth)

APPLICANT: Ms Keightley

RESPONDENT: Mr Keightley

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr Charman

FILE NUMBER: ADC 4573 of 2008

DATE DELIVERED: 19 April 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 19 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Subramanian

SOLICITOR FOR THE APPLICANT: Priya Subramaniam

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Charman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ian Charman and Associates

Orders

1. The mother’s solicitors have leave to issue a subpoena within the next seven [7] days to South Australia Police in relation to all records of the father and the father’s current wife such subpoena to be made returnable before a Registrar in the usual course of events.

1. The matter be adjourned (if possible) to the visiting Judge, the Honourable Justice Fowler, on Thursday 10 May 2012 at 9.30 am.

1. The father to file and serve any affidavit on which he seeks to rely by 4.00 pm on Wednesday 7 May 2012.

1. Upon noting if the matter is not capable of being listed before the Honourable Justice Fowler on 10 May 2012 then the matter is to be listed before the Honourable Justice Dawe on Tuesday 5 June 2012 at 9.15 am.

1. During the period of the adjournment the orders which are currently in existence for the child P to spend alternate weekends and intervening Wednesday evenings with the mother is continued.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keightley & Keightley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4573 of 2008

Ms Keightley

Applicant

And

Mr Keightley

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The Court has before it an Application in a Case filed by the mother on 3 April 2012 and a supporting Affidavit setting out the basis of her concerns and the basis upon which she seeks an order on an interim, urgent basis changing the arrangements for the child, P.  The child is the younger child of these two parties.  P was born in April 2000.  He is, therefore, about to turn 12. 

2. The other significant material before the Court is the Report of the Family Consultant, which has been released pursuant to the Affidavit being filed on 23 February 2012.  P expressed significant views to the Family Consultant which are consistent with the mother’s Application for change in P’s arrangements. 

3. The difficulty the Court has at this stage is that the father in these proceedings is unrepresented and appears today unrepresented without any documents.  He asserts that he was not served with the sealed Application until very recently, but concedes he was aware of the unsealed documents from at least early April.  The difficulty the Court has in determining this matter is that the father has not filed any proceedings and was not aware until very recently that the matter was listed this morning.

4. The Independent Children’s Lawyer expresses concern about the matters in the Affidavit as they are connected with the Family Consultant’s Report.  The Court is, in particular, concerned about the allegations of P being subjected to family violence.  The father appears unrepresented, but says from the bar table that he admits there was an incident on the relevant night to which his present wife responded by calling the police to the home.  He has no objection to leave being granted to the mother’s solicitors to forthwith issue a subpoena to the police for all records in relation to himself and his present wife.  I do so on the basis that the subpoena be issued within the next seven days and be made returnable before a Registrar in the usual course of events.

5. I am told that there is a conference organised pursuant to earlier orders of Burr J, and that conference between the parties is fixed for early May.  The Court would normally require the matter to be adjourned to enable the father to file his answering documents.  In particular, in this case, it would be expected that he file an affidavit himself and his present wife answering the serious allegations made in relation to the domestic violence and the violence allegedly experienced by P.

6. Bearing in mind the arrangements which have been in place for some time and notwithstanding the Court’s concern about the ongoing welfare of the child, P, the principles of justice require that I adjourn the matter to enable the father to file and serve any answering material upon which he might rely and for the mother’s solicitors to give consideration to the police documents once they are produced under subpoena.  My difficulty is that I am not in the Registry personally for the immediate few weeks, but I am told that there is a visiting Judge who may be available to hear this matter. 

7. I am proposing to order that the matter be adjourned, if possible, to the visiting Judge, Fowler J, at 9.30 on 10 May and, on that basis, order that the father file and serve any Affidavit upon which he seeks to rely by 4 pm on Wednesday, 2 May.  If the matter is not capable of being listed before Fowler J at 9.30 on 10 May, then the matter is listed before me on 5 June at 9.15 am. 

8. During the period of the adjournment, the orders which are currently in existence for the child to spend alternate weekends and intervening Wednesday evenings with the mother, will continue.  It is hoped that the compliance with those orders will provide sufficient protection for the child, P. As this matter is now being before the Court, hopefully, that will also give some impetus to the parties behaving in a manner which protects P’s best interests.  The orders that are currently in existence are continued during the period of the adjournment. 

9. In relation to the telephone request, the father has said at the bar table that the child has access to a telephone.  It appears that he does not have his own telephone.  The Court does not propose to order that a mobile phone be provided to a 12 year old.  There are other issues that need to be considered in that regard.  However, with the ongoing time that P spends with his mother, hopefully his communications about his welfare and safety will be sufficiently protected and that he has an ability to make contact with his mother at other times as would be appropriate. 

10. The matter is adjourned to Fowler J on 10 May at 9.30 am or before me on 5 June, with a requirement that the affidavits be filed by the father promptly and that leave to issue the subpoena has been granted. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 19 April 2012.

Associate: 

Date:  20 April 2012