Kopek and George

[2008] FamCA 1150

FAMILY COURT OF AUSTRALIA

KOPEK & GEORGE [2008] FamCA 1150

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer to Federal Magistrates Court – Appointment of Independent Children’s Lawyer

Family Law Act 1975 (Cth)

APPLICANT: Ms Kopek

RESPONDENT: Mr George

FILE NUMBER: MLC 8663 of 2008

DATE DELIVERED: 21 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr James

SOLICITOR FOR THE APPLICANT: Hillier Quinn Law

COUNSEL FOR THE RESPONDENT: Mr Wiener

SOLICITOR FOR THE RESPONDENT: Peter Barker

Orders

1. That subject to the orders hereafter, the mother’s application being an appeal, be withdrawn by leave.

2. That paragraph 1 of the orders made by the Magistrates Court at Bendigo on 10 September 2008 be varied to reflect the fact that they are interim orders only until the further hearing of the parties’ applications by the Federal Magistrates Court of Australia as reflected in paragraph 11 of the minutes of consent orders made that day.

3. That all extant applications be otherwise transferred for hearing before the Federal Magistrates Court of Australia sitting at Bendigo commencing on 24 November 2008 in the circuit.

4. That IT IS REQUESTED that the Federal Magistrates Court deal with any interim parenting dispute as a matter of urgency and be accommodated in the circuit.

5. That pursuant to Section 68L(2) the Family Law Act 1975 the children J born on … July 1997 and D born on … November 1994 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

6. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

7. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

8. That my reasons for judgment this day be transcribed and be made available to the parties.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:   MLC 8663 of 2008

MS KOPEK

Applicant

And

MR GEORGE

Respondent

REASONS FOR JUDGMENT

1. This is a matter that has come before me in the Judicial Duty List on Friday, 21 November.  It comes by way of a Notice of Appeal filed by the mother on 29 September 2008.

2. What seems to have occurred, and it is not entirely clear, is that the parties attended before state magistrate Mr Wright on 10 September 2008.  Both parties were represented on that day.  There is a substantial body of orders which appear to have been made by consent of the parties, including injunctions and what might loosely be called parenting orders. 

3. It is quite clear from reading what the parties consented to that they intended the whole arrangement to be an interim arrangement and the proceedings to be otherwise transferred to the Federal Magistrates Court at the sitting commencing on 24 November 2008 in Bendigo. 

4. The one odd feature of the orders, which I might say were drawn by the practitioners themselves, is that the order determined by Mr Wright was that the father was to spend time with the three children on each Saturday from 10 am to 4 pm commencing 20 September 2008 and that the handover occur at the G police station.  That was obviously on 10 September and the mother appealed some 14 days later.  Because of the structure of the legislation, the appeal naturally came to this court.  The first question is whether in fact the order is correct on its face, as it purports to have been a determination on a final basis.  All parties today have told me that that was not what was intended and certainly neither party is asserting that they consented to the jurisdiction of the court to determine that as on a final basis.

5. If that is clearly understood by everybody, then one of two situations arises:  either the order has been draw incorrectly by the draftsman or, alternatively, the court presumed that it had jurisdiction that it did not.  In either case the parties agreed that it is wrong on the face and I should rectify the position.  Accordingly, I propose to do that.

6. The situation is difficult because the circuit in the Bendigo Federal Magistrates Court commences next Monday and this matter is listed before Riley FM.  As a result of discussions between her Honour's chambers and mine this day, it seems that there may be some difficulty because of the size of the list in her Honour’s hearing the matter.  My hearing of the appeal would not assist as the matter is still to be heard again by Riley FM.

7. I am proposing to order that the matter be transferred, notwithstanding that it would seem on the face of it that the Federal Magistrate Court already has jurisdiction to deal with the matter next week.  The only dilemma is that there may not be able to be an interim hearing between the parties on the issues in dispute having regard to the time available.

8. It is quite clear from reading the material that there are a number of problems between the parties, all of which require the intervention, not only of an Independent Children's Lawyer, but a comprehensive family report.  I certainly would not be prepared to make orders, either of the nature that the state magistrate made nor, for that matter, on what the mother is seeking based upon the evidence that I have read.  I would certainly want a lot more input from an Independent Children's Lawyer and some sort of family report.

9. It is important to also understand that at the time that the state magistrate heard the case there was a Notice of Risk of Child Abuse filed, so to that extent, whilst I could hear the matter de novo, it is appropriate for me to record that I am not making any finding in this case.

10. Subsequent to the orders being made the father has filed a Notice of Risk of Child Abuse and I am told that that is under investigation.  That would require the intervention of the department in some way and I am told that there is a letter in existence setting out what the current position is.  It is not at all clear whether they will have anything to say and whether the police will be involved and that is something that remains to be seen.

11. That then leaves the question of what happens in the interim period.  The mother has indicated a desire to suspend the existing orders and the father says that he would resist that occurring.  I do not have the opportunity to determine the matter one way or the other today and, as I said, it may very well be that not only because of time, but also because of the state of the material that the Federal Magistrates Court is not in a much better position than what I am.  It seems, however, that the Federal Magistrates Court, being seized of the matter, should try and determine the matter next week and I have made an order that the Federal Magistrates Court be requested, if possible, to deal with the matter as an urgent case next week.

12. In the circumstances, I propose to make the orders that I have discussed with counsel.  I have also ordered that the matter be transcribed as a matter of urgency. 

I certify that the preceding Twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  21 November 2008