KLM and YT
[2004] FMCAfam 90
•11 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KLM & YT | [2004] FMCAfam 90 |
| FAMILY LAW – Children – contact – supervised contact – mother not encouraging any contact. PRACTICE AND PROCEDURE – Costs – circumstances justifying order – respondent not ready to proceed. |
Family Law Act 1975 (Cth), ss.65E; 117
| Applicant: | L M K |
| Respondent: | T Y |
| File No: | MLM 8119 of 2002 |
| Delivered on: | 11 February 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 11 February 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr Radebe Radebe & Associates |
| Solicitors for the Respondent: | Mr Chalmers (Duty Solicitor) 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 T Y, previously known as L R K, born 28 June 2000, for two hours every fortnight at times and on dates as arranged by the coordinator of B or her nominee and the cost of the service, if any, is to be shared equally between the mother and the father.
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 respondent mother is to pay the applicant father's costs of the day in the sum of $1365.00 I allow six months to pay.
I allow 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 8119 of 2002
| L M K |
Applicant
And
| T Y |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father – a little girl known as T Y but previously known as L R K, who was born 28 June 2000 – for an order for contact. The proceedings have had a lengthy history and indeed the original application was filed in the Family Court of Australia at Melbourne on 23 July 2001. It is a matter of great concern that the proceedings have taken so long to finalise and indeed are no closer to finality than they have been for some months.
Proceedings were transferred to the Federal Magistrates Court on 3 September 2002. A family report has been obtained and that was dated 21 February 2003. This report is now almost a year old. The report does contain a recommendation that there should be an attempt at supervised contact so that the father, who has had hardly any contact with this child before, could make some effort building up or rebuilding a relationship with the child. The proceedings were listed for hearing on 23 October 2003. The hearing was estimated to take two days. The mother's then solicitor, Mr Gunasekera, advised that the mother was overseas and she would not be back for a number of months. Accordingly, the matter was relisted for hearing on 11 and 12 February.
What then happened was that Victoria Legal Aid, who were funding the mother, withdrew the grant of legal aid on the basis that if the mother had the funds to travel overseas for a number of months, she would presumably have some funds to finance her own litigation. On the mother's account, an approach was made to Victoria Legal Aid for an order to reinstate that grant without success. The situation now is that the mother is seeking again to explain the situation more fully to Victoria Legal Aid, again in an effort to persuade them to change their decision.
On Monday, 9 February, two days before the hearing date, the mother's solicitor, Mr Gunasekera, sent a fax to the court advising that his client's grant of legal assistance had been terminated and he was not in a position to act on her behalf. He advised that he was instructed that his client intended to seek an adjournment of the hearing. On the morning of the hearing, 11 February, the father appeared accompanied by his legal adviser, Mr Radebe. Mr Gunasekera appeared with his client, or his about to be former client, and sought the court's leave to withdraw for the reasons set out in his fax. He was granted leave to withdraw. The mother applied for an adjournment of the proceedings, which was opposed by the father's solicitor. I stood the matter down in the list and referred the matter to the duty solicitor.
The duty solicitor of this court, as on most days, is usually extremely busy and it was some time before the solicitor concerned, Mr Chalmers, was able to interview the mother as he had other matters to deal with. He made efforts in an attempt to resolve this matter, either on an interim or a final basis, I am not aware which, but in either case his efforts were unsuccessful. The parties remain apart. The situation is that there has been no contact and the matter is just not in a position on the respondent's part where it can proceed. The duty solicitor is in no position to undertake a defended hearing at no notice. The father and his solicitor are ready and the father's solicitor points out that again his client is significantly disadvantaged because of the absolute lack of contact. It is also a matter of concern that the family report is almost a year old. Clearly the respondent is not in a position where she is encouraging any contact at all. She has issues with the father. They may or may not be significant issues and she refers to the history of violence. At this stage those issues have not been tested in court. I am aware that the father suffers from an illness which may have a limiting effect on his life span.
My overall concern is the welfare of the child and the best interests of the child. Mr Radebe has put to me that it would be an injustice to the child if she were not given the opportunity to at least have some acquaintance with her natural father and that in years to come she could feel cheated or deprived if she did not have that opportunity. There is force in that argument. It is most regrettable that the father is in a position where the matter cannot proceed to finality today. I am of the view that there must be an attempt at supervised contact. The father must be given the opportunity to show that he can perform in a father role. At the same time, there must be concern for the welfare of the child, which is why supervision is necessary. There must be concern for the welfare of the mother, which again is why supervision is necessary. There are contact centres available, including one known as B, which can make arrangements for contact to occur.
I propose to make orders which will bring about on an interim basis a proposal for supervised contact. As I did in an earlier case today, I would warn that where there is such an alienation between father and a young child, there is a possibility that contact may not in the long run be successful. But no court can say that unless a reasonable effort has been made to facilitate it. The mother will need to obtain for herself legal representation and she may well have to make a further approach to Victoria Legal Aid in order to persuade them that she has a legitimate ground. I would point out of course, as I have said earlier, that the resources of Victoria Legal Aid are not unlimited. They make the best of what they have got but there is a limit to the funds that they have to assist deserving applicants.
I turn also to the question of the costs. It seems to me that the question of costs has been thrown away. The father came here with his legal adviser ready, willing and able to run the case, to the best of my belief. He had his affidavits on, there was a family report, albeit an old one, he was ready to give evidence and be cross‑examined and his solicitor was ready to make appropriate submissions to the court. Made submissions he certainly has, but without material before him and without an opponent, who is in a position to provide any case, cannot with the best will in the world bring the matter to finality which he wishes to do for his client. I am of the view that it is a circumstance which calls for an order for costs, though I am mindful of the fact that the respondent is not particularly flush with funds on the material that is available.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 3 March 2004
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