Knott and Vickers (No. 4)

[2007] FamCA 1405

FAMILY COURT OF AUSTRALIA

KNOTT & VICKERS (NO. 4) [2007] FamCA 1405

FAMILY LAW – CHILDREN – Application within few months of final orders – Interim orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Knott

RESPONDENT: Ms Vickers

FILE NUMBER: MLF 1315 of 2005

DATE DELIVERED: 26 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 26 November 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND Ms Lim

SOLICITOR FOR THE HUSBAND: Berger Kordos Lawyers

SOLICITOR FOR THE WIFE: The wife in person via telephone.

Orders

1. That the wife deliver the child SA born … April, 2001 to the child minding room on the fifth floor of the Melbourne registry of this court by 9:45 am. on Friday 30 November, 2007 and thereafter the child remain in the child minding room, pending further order.

2. That pursuant to s.68L(2) of the Family Law Act 1975 the interests of the child SA born … April, 2001 be independently represented by a lawyer AND IT IS REQUESTED  that Victoria Legal Aid arrange such independent representation.

3. That forthwith upon appointment by Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

4. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

5. That until further order the child is not be taken to or attend any further consultation or assessment by Mr P or any other psychologist.

6. That the husband’s time with the child pursuant to paragraph (3)(a) of the orders made herein on 8 August, 2007 be suspended until the adjourned date and that the husband have liberty to apply for make-up time in respect of any period in which the child has not been with him since 23 November, 2007. 

7. That the husband’s costs of this day be reserved.

8. That the form 2 filed by the husband this day be otherwise adjourned to 9:45 am. on 30 November, 2007 in the senior registrar’s duty list.

9. That a sealed copy of this order be faxed as soon as practicable to the solicitors for the wife, being Waters Timms Pty. Ltd. in ….

10. That pursuant to s.62B and s.65DA(2), of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

11. That any application filed by the wife prior to 30 November, 2007 be listed for hearing on 30 November, 2007.

12. That the husband and wife file any additional affidavits by 29 November, 2007. 

13. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

14. That the preparation of these orders be expedited forthwith.

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

AND THE COURT NOTES

A. That the wife advised the court that she learnt of the application filed by the husband this day from a telephone message left for her by the husband.

B.That the wife advised the court that she attended her solicitors earlier this day for the preparation of an application and supporting material seeking that the parenting orders made on 8 August, 2007 be suspended until further order, and believed that application was to be filed this day. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1315 of 2005

MR KNOTT  

Applicant

And

MS VICKERS  

Respondent

REASONS FOR JUDGMENT

1. Before the court is an application, initially brought on an urgent, ex-parte basis.  The applicant is Mr Knott, who is the father of the child, SA, born in April 2001. The child's mother is Ms Vickers.  In previous proceedings, the mother was represented. The father's solicitor contacted those solicitors last week and left messages, to no avail. The father left messages on the mother’s phone, on Friday and again today.  That she received one such message is clear as she contacted the court, and has taken part in the hearing by telephone. She has advised she has again retained her former solicitors.  A copy of the application to be brought ex-parte and the father’s affidavit were served by fax on those solicitors this morning. 

2. The father filed an application today in which he sought the issue of a recovery order, that the mother pay his costs and that she reimburse him for any costs in respect of execution of the recovery order.  Although not expressly stated in the order, it was clear that he also sought an order that his daughter be delivered to him on execution of the recovery order, and that she live with him, until further order. 

Background

1. The parties have been engaged in litigation in this court for a long time.  The litigation relates to their daughter, SA.  Earlier this year, the matter was listed before Guest J, for final hearing.  The file shows that the matter was before his Honour on 6, 7 and 8 August. Some transcript of that hearing is on the file.  On 8 August 2007, by consent, the parties resolved all outstanding matters between them and final parenting orders were made. 

2. Those orders discharged all previous orders with respect to the child.  The parties were to have equal shared parental responsibility for her, subject to a number of caveats; for example, the mother was initially to make decisions with respect to her health, education and religion.  There were provisions requiring 21 days' notice in writing of an intention to alter aspects relating to the child’s education and religion, and of significant medical treatment. 

3. The child was to live with the father from the conclusion of school on Friday (or, if Friday were not a school day, Thursday) until the commencement of school the following Wednesday (or Thursday, if Wednesday was not a school day) in each alternate week.  That time was to be suspended during school holiday periods.  He was to spend time with her for half of each school term holiday, for periods in the long summer vacation and on other special days.  The child was otherwise to live with the mother.

4. The father's evidence (contained in an affidavit sworn by him on 23 November) is that all proceeded well under those orders, save that the child’s school diary was not in her bag when she came into his care, as provided in the orders.  He said that the school and he were working “around the problem”, rather than raise it with the mother.  He attended the child’s school on Friday, at about 2.30 pm.  The child was not there.  He was initially told by a teacher that another parent said that the child would be attending school “later”. Given the time, he went to speak to the principal. The principal confirmed that the child had not attended school that day and that the principal had no information about her absence. 

5. Further, the principal advised the father that he had received a letter from the mother's solicitors, at 2.50 pm. on Friday; it was from the mother’s solicitor, to the father. The father had not received any such letter.  Amongst other things, the letter stated that the child and the school were expressing concern about her time with the father. According to the father, the principal told him that upon receiving the facsimile, he immediately contacted the mother's solicitors, and informed them that the school held no such concerns.  A copy of an amended letter was then faxed to the school, with the reference to the school deleted.  That letter was received by the father's solicitors at about 4.50 pm. on Friday.  It seems that the first letter was never dispatched to the father’s solicitor.  The child is not at school today, either. 

6. The mother has advised that she contacted her solicitor on receipt of the father’s message. She said she was told, about 20 minutes before the hearing started before me, that they had no papers; that is not consistent with the evidence of papers being faxed this morning.  It is a big firm; papers sent by fax to that office may not have been delivered to her solicitor at that time.  The mother's evidence is of having attended her lawyer's office earlier this morning for the purpose of making an application to suspend contact.  She said the child has been crying every single night and that she is terrified of the father.  The reason she is not at school is that she is frightened of her father. That consultation, she deposed, pre-dated advice of today’s application by the father.  A check of the court’s computer system discloses no application filed on her behalf today, although she said she believed that was to occur.

7. I have read the reports of Mr P annexed to an affidavit he swore on 18 April 2007; his most recent report is dated 29 March 2007.  Mr. P noted that the allegations and counter-allegations were so great, the history of the conflict so severe, and the implications insofar as the child and her parents' relationship so important, that any of his recommendations needed to be tempered against the importance of testing of evidence.  He sets out the parties' entrenched positions, noting that nothing has changed in the dispute.  He said the child’s parents continued to express numerous concerns about the other and see the problem as solely referable to the other.

8. Mr. P noted that the child continued to cope relatively well. In his opinion she conveyed a greater sense of dependence and reliance upon her mother, perceiving her as her primary carer and having a special closeness with her.  As events transpired, and perhaps unfortunately, there was no final testing of the evidence and no findings on the various allegations.  It seems that within three and a half months of final orders being made, by consent, the parties are again entrenched in their respective positions.

9. A recovery order is a last resort for a child and should not issue unless there is some other way of ensuring that a child can be located and brought before the court.  The mother has told me that the child is with her and she will abide by an order that she produce the child at the court at 9. 45am this coming Friday, 30 November.  In those circumstances, I propose to order that the mother produce the child to the child-minding room on the fifth floor of the Melbourne registry of the court, at 9.45am on Friday, 30 November and that the child remain there, pending further order.  The mother has a six-month-old child; staff in the child-minding room will be advised of that, so a place will be available for that child, too, if necessary. 

10. An independent children's lawyer was previously involved in the case.  Guest J made a number of references to the importance of the role and I will request the reappointment of an ICL.  It would be good if the same person were appointed, if VLA is able to arrange it.  It is to be hoped that an ICL will be at court when the matter comes back on Friday.  The parties are to file and serve any additional affidavits on which they rely by Thursday.

11. I propose to order that the father's time with the child be suspended until Friday but that he have liberty to apply for make-up time in respect of that period.  I make it clear that that suspension has nothing whatsoever to do with any findings about his conduct or the child’s emotional state.  The court’s primary concern must be the safety and security of the child.  It is important she attends school for the balance of this week, until coming to court on Friday.  If the father is vindicated, he should have additional time with the child.  If she is not going to be with him for the next few days, at least she has the security of the school day and the school environment. 

12. The matter will otherwise be adjourned to 9.45am on Friday.  I will reserve the question of costs.  The mother has told me she contacted Mr. P as she believes the child needs to speak with him.  His last report notes the child’s advice to him that she hoped she did not have to see him again.  The child should not be subjected to further psychological assessment or intervention until the court has the opportunity to consider the relevant evidence. 

I certify that the preceding 14 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

Date: 26 November 2007