KEIGHTLEY & KEIGHTLEY

[2009] FamCA 1345

FAMILY COURT OF AUSTRALIA

KEIGHTLEY & KEIGHTLEY [2009] FamCA 1345

FAMILY LAW – CHILDREN – Interim orders by consent

Family Law Act 1975 (Cth)

APPLICANT: Mr Keightley

RESPONDENT: Ms Keightley

INDEPENDENT CHILDREN’S LAWYER: Ian Charman

FILE NUMBER: ADC 4573 of 2008

DATE DELIVERED: 25 November 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 25 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Boehm

SOLICITOR FOR THE APPLICANT: Boltons Lawyers

COUNSEL FOR THE RESPONDENT: Mr Birchall

SOLICITOR FOR THE RESPONDENT: Polly Dixon & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mrs West

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

Order

BY CONSENT

1. That the parties do all things necessary to facilitate the children attending family therapy at B Therapy at times nominated by the therapist.

2. That the children A born … May 1997 and P born … April 2000 do live with the parties as follows:

   (a)with the father:

   i.from 10:00am on 28 November 2009 until 30 November 2009 with the father to return the children to school at the conclusion of therapy;

   ii.from 10:00am on 6 December 2009 to the conclusion of therapy on 7 December 2009 with the father to return the children to school;

   iii.from 10:00am on 12 December 2009 until 10:00am on 14 December 2009 (or conclusion of therapy) with the father to deliver the children to the mother’s home at the conclusion of therapy;

   iv.from 10:00am on 21 December 2009 until 10am on 28 December 2009 and each alternate week thereafter at the same times

   (b)with the mother at all other times.

3. That handovers, pursuant to paragraph 2(a)(iv) above shall occur at B Therapy.

4. That all handovers not occurring at B Therapy or school to occur at the mother’s home.

5. In the event that the court is able to accommodate a trial of the within applications on 14 December 2009 the parties and the Independent Children’s Lawyer shall file all affidavit material upon which they rely on or before 9 December 2009.

6. That further consideration of this matter be adjourned to a directions hearing on a date to be fixed by Justice Dawe.

7. If the court is unable to accommodate a trial on 14 December 2009 then trial directions and interim issues be adjourned to 25 January 2010.

8. That the Independent Children’s Lawyer shall provide the therapist at B Therapy with a copy of the family report dated 1 November 2009.

FURTHER ORDER

1. That leave is granted to the Independent Children’s Lawyer to issue a subpoena to the relevant officer at Child and Adolescent Mental Health Service (“CAMHS”) for the production of file notes and documentation in relation to the children A born … May 1997 and P born … April 2000, such subpoena to be returnable at 9:30am on 8 December 2009.

2. That the father have leave to file and serve an Amended Initiating Application such application to be filed and served by 4:00pm on 9 December 2009.

3. That the mother have leave to file and serve an Amended Response such response to be filed and served by 9 December 2009.

4. That by 4:00pm on 11 December 2009 each party and the Independent Children’s Lawyer lodge with Justice Dawe’s Associate a written summary of argument.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 4573 of 2008

MR KEIGHTLEY

Applicant

And

MS KEIGHTLEY

Respondent

EX TEMPORE REASONS

1. This is a matter which was listed before me today on the father’s Application in a Case filed on 23 July 2009 and the mother’s Response filed on 13 November 2009.  Given time constraints, I am not going to be expansive in these comments.  They will be brief.  The issue for decision was to be primarily with whom the children should live on an interim basis.  Currently they reside with mother and spend time with the father, although there is difficulty with certainly one of the children, namely the oldest child, spending that time with his father.  I am pleased to note that the youngest child appears to be now spending time with his father and looking forward to that and seeking, indeed, more time than the current order provides.

2. When this matter was before me last week I expressed concerns about the children such that, in my view, there is a need to do everything possible to bring forward and expedite the final hearing of the final orders applications in this case.  In that regard, there is an opportunity to have an early hearing and it is on this basis Dawe J has a matter listed to commence on 14 December 2009 for five days.  There is doubt about whether that matter will be ready to proceed and that will be determined, as I understand it, at a directions hearing on 2 December 2009.  Her Honour has indicated that she would be prepared to hear this matter on a final basis in the event that her currently listed matter does not proceed.  The parties, through their counsel, have indicated they wish to pursue that option, and I have taken time this morning to consider with counsel the witnesses that would be called in the event that a trial can take place then and I propose to make orders about that in a moment.

3. However, given there is no guarantee that this trial can be heard in December 2009, I commenced to hear submissions from the parties and the Independent Children’s Lawyer in support of their respective applications before me seeking orders on an interim basis.  I invited the Independent Children’s Lawyer though to address me first, and as a result of her submissions and my own expression of a preliminary view about the matter, I am pleased to record that the parties, with the able assistance of their legal representatives, have now reached agreement about an interim arrangement to take the matter through to the end of the forthcoming school holidays.  And, as I say though, that is on the basis that the trial cannot happen in December 2009.  I have indicated to the parties that their next opportunity to have a trial is the week of 1 March  2010 and that if that is how this matter progresses, then what I would propose to do is on 25 January 2010 when I have this matter listed on contravention applications, in effect, not deal with those contravention applications on that day but rather spend time in getting the matter ready for a March 2010 hearing, and also consider the current state of the matter at that time in relation to the ongoing order that the parties now agree about.

4. Just pausing there, in relation to those applications alleging contravention, if there is to be a trial in December 2009 then those applications have to be dealt with in some way prior to then, either by being heard or being withdrawn.  They obviously cannot be heard but, as I understand it, the parties have given instructions that in the event that the trial can proceed in December 2009, that they will not be proceeding with those applications.  However, if the trial does not proceed in December 2009 then those applications remain alive, and although, as I say, they are formally listed on 25 January 2010 but, if things go to plan as I have set out, they would not be able to be heard on that day either and it would be a matter of considering on 25 January 2010 what will happen to those applications.

5. Thus I propose to now make orders, primarily dealing with the living arrangements of the children in the event that the trial does not take place in December 2009 because, as I understand it, if the trial does take place in December 2009 then certainly there are some orders that have been agreed, and I will come to that in a moment, during the period up to 14 December 2009, but obviously thereafter any orders will be in the hands of the trial judge. 

6. As is apparent from the minute of order before me, the therapy which has been agreed to is to commence before the trial on 14 December 2009 if that is to happen.  It is further noted that it is not intended by either party or the Independent Children’s Lawyer that the therapist be called as a witness in the trial of this matter and it is also not intended that that therapy be reportable.

I certify that the preceding 6 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 25 November 2009.

Associate