Lorente and Lorente

[2009] FamCA 454

FAMILY COURT OF AUSTRALIA

LORENTE & LORENTE [2009] FamCA 454

FAMILY LAW – PROCEDURAL – Case management

APPLICANT: Ms Lorente

RESPONDENT: Mr Lorente

FILE NUMBER: MLC 10919 of 2007

DATE DELIVERED: 14 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms C.J. Jenkins

SOLICITOR FOR THE APPLICANT: Perry Weston

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE

INDEPENDENT CHILREN'S LAWYER:

Ms L.J. McCreadie

SOLICITOR FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Septimus Jones & Lee

Orders

IT IS ORDERED:

1. That this matter be fixed for final hearing before me on Wednesday 27 May 2009 estimated to take 1 to 3 days.

2. That pending a Notice of Address for Service to the contrary filed by or on behalf of the father his address for service be …, C, Victoria, his mobile telephone number be listed in the records of the Court as … and his facsimile number be listed in the records of the Court as ….

IT IS DIRECTED:

1. That service of documents on the father can be affected by pre-paid post to his address for service.

IT IS FURTHER ORDERED:

1. That by no later than 4.00 pm on 15 May 2009 the mother file and serve an amended Application setting out with precision the parenting orders she seeks be made at the final hearing of this matter in relation to the child … born … March 1999.

2. That by not later than 4.00 pm on Tuesday 19 May 2009 the mother file and serve any further affidavit material upon which she proposes to rely at the final hearing.

3. That by not later than Friday 22 May 2009 the respondent father file and serve any response to the mother’s amended application and any affidavit material responding to that of the mother or upon which he otherwise proposes to rely at the final hearing.

4. That by 4.00 pm Monday 25 May 2009 the independent children’s lawyer publish to each of the parties to the proceedings her preliminary view of what orders ought to be made at the final hearing.

5. That the independent children’s lawyer forthwith send an SMS message to the father’s mobile telephone advising that the matter is listed for final hearing on 27 May 2009 at 10.00 am and that he is required to file any documents he relies upon by Friday 22 May 2009.

6. That I reserve liberty to the father to apply urgently to vary or set aside the interim parenting orders which I have made this day on the oral application of the mother.

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

AND IT IS NOTED that if the father fails or neglects to appear on the adjourned date final orders may be made without any further input from him.

IT IS ORDERED:

1. That the mother have leave to proceed with her oral ex-parte application for a suspension of current spend time arrangements AND THE COURT NOTES  that such application is supported by the independent children’s lawyer.

2. That until 27 May 2009, or further order, the time to be spent between the father and the child … born … March 1999 be and is hereby suspended save for any time which is available to the family at B Contact Centre for the father to spend time with the child on a fully supervised basis.

3. That the mother and father do all acts and things necessary to each complete an application to B Centre for inclusion in the supervised contact program provided that any such application by the father is without prejudice to his right to argue that supervision of the time he spends with the child is not necessary or desirable.

4. That liberty is reserved to the father to apply to set aside or vary this orders or as he may be advised.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 10919 of 2007

MS LORENTE

Applicant

And

MR LORENTE

Respondent

REASONS FOR JUDGMENT

1. These reasons explain why I have adjourned the final hearing of these parenting proceedings concerning the parties’ son, born in March 1999, to 27 May 2009 and, in the meantime, suspended operation of the order entitling the child to spend time with the father.

2. The matter comes before me today as the first day of a less adversarial trial, having been set down by Registrar Kaur on 13 March 2009.  Also ordered on that day was that the mother and the father do all acts and things necessary to obtain a family report by Ms D, psychologist, to update an earlier report which she had prepared in the matter and to take into account information which was not available to her at the time of preparation of that earlier report.

3. The parties were each required to complete a questionnaire for the hearing today.  The mother has done so.  There is no questionnaire on the file from the father.

4. Ms Jenkins of counsel appears on behalf of the mother.  The mother attends court and is assisted by an interpreter because English is not the mother's first language. 

5. Ms McCreadie of counsel appears on behalf of the independent children's lawyer. 

6. The father Mr Lorente does not appear.  He was called at the door of the court at approximately 11.40 am this morning and there was no response to the call.

7. On 12 May 2009 Ms Leydon of Slater and Gordon filed a notice of withdrawal as a lawyer, having informed her client by notice of 5 May 2009 that she no longer acted on his behalf.  Apart from the details of today's hearing, the notice set out the address of … as the father's address for service.

8. The matter appeared in the printed list for 10 o’clock this morning.  My court officer was at court and indicated that no‑one attended at 10 am.  However, because the matter had originally been listed at 11.30 a.m. and the father had been advised by his previous solicitor Ms Leydon of Slater and Gordon that the matter would be listed at that time, we did not commence the matter until 11.30 a.m.

9. Shortly before coming in to court this morning I was handed a letter which had been sent by email to the court, dated 13 May 2009, and appearing to come from the father, although it was not signed by him.  The letter is addressed to "Your Honour, Family Court of Australia".  Omitting formal and irrelevant parts, the text of the letter reads as follows:-

   “I am the respondent in the above proceedings.

   I note Ms [D] was commissioned to provide a private updated family report in the above matter, and that the matter is listed for a trial commencing 14 May 2009.

   Previously, I consulted Slater & Gordon to represent me in these matters.  However, I no longer have the financial resources to continue to consult Slater & Gordon.  I have been unable to pay my half share of a private updated report or my private solicitor’s fees.  As a result I have not received a copy of this updated report.  Nor have I been given access to my own file at Slater & Gordon. 

   My only source of income is my disability pension. 

   I have recently lodged my application for legal aid.  Unfortunately, I have been unable to locate the relevant court documents and orders.  Hence, I and my legal aid solicitor have not been able to prepare my case for the trial.

   Also, I have been suffering from side effects from the mediation for my illness.  As you are aware, I have been HIV positive since 1991, and I have been diagnosed with Hepatitis C.

   Under the circumstances I seek an adjournment of six weeks so that I and my legal aid solicitor can prepare my case for the trial.

   A copy of this letter will be faxed to [the mother’s] solicitor and to the Independent Children’s Lawyer.

   Until my legal aid solicitor takes over my case, please address all correspondence to me personally.  My home address is: [C, Victoria].  My mobile number is […].  My fax number is […].”

10. The letter was accompanied by a letter apparently from a Dr N dated 12 May 2009, on letterhead from R Medical Centre.  It relates not to a person by the name of the father but to "[DG]" of the address given by the father and apparently born in January 1961.  Omitting formal and irrelevant parts, the text of that letter reads as follows:-

    To whom it may concern, [DG] has not been well since September 2008 until May 2008 as he was suffering from the side effects of hep C infection treatment and increase of stress and depression, he could not handle with the urine test ordered by acting lawyer, but now the condition is improved and he feels much better, then he can continue the urine test at any time.  I would be very grateful for your support regarding to his difficult circumstance.

11. This matter is listed as a less adversarial trial.  The evidence provisions of Part XIIA of the Family Law Act apply.  As such, I can have regard to hearsay evidence and accord it such weight as I consider appropriate.  However, those provisions in relation to the admission of statements which would otherwise not be evidence do not in my view assist in the interpretation of the communication purportedly by a medical practitioner when it is not clear to me that it makes sense.

12. The mother presses for final orders to be made and that I deal with the matter as soon as it can be made ready for a final hearing.  I am not certain that she contends that it is not ready for a final hearing today, but the fact of the matter is that the updated report of Ms D, whilst completed, has not been released.  I am informed that Ms D’s report has not been released because the father has failed or neglected to pay his one-half of the cost of the report.  That much appears to be corroborated by the letter which the father has now sent to the court.

13. Neither the mother nor the independent children's lawyer agree to the six-week adjournment sought by the father, nor agree that the matter ought to be adjourned at all or for any reason other than making sure that it is ready to proceed.

14. I do wish to make some comment on the mode of communication used by the father with the court.  It is a letter sent by email and apparently yesterday, although it did not reach me until this morning, in circumstances where this trial date has been known since 13 March 2009.  In the matter of Buljubasic (1999) FLC 92‑865 the Full Court observed that it is ordinarily improper for litigants to seek to communicate with a trial judge by sending a facsimile or other communication to the court or to a registrar. A litigant in person who seeks an adjournment or an extension of time in respect of a matter listed for hearing must either appear in court on the listed date or send a representative to make a proper application for relief. I with respect adopt those observations.

15. In relation to the content of the father's communication, I have been informed by counsel for the independent children's lawyer that upon learning that Ms D’s report would not be released for today's hearing, she placed a telephone call to Ms D and spoke generally about Ms D’s observations of the matter and what would need to be done for her report to be made available.  I am informed that Legal Aid Victoria have agreed to fund the father's one-half share of the cost of the work undertaken by Ms D.  However, they have agreed to fund it only in accordance with legal aid scale rather than an amount equivalent to one-half of the fees already invoiced by Ms D.

16. I will request Legal Aid Victoria to meet the expense of the cost of one-half of the preparation of the report.  If Legal Aid Victoria are not able to make any payment over and above the amount calculated in accordance with its scale and if that results in the report not being available at the adjourned date, the matter will proceed to a final determination without the report.

17. I am satisfied that it would be preferable for the court to make a final determination in this matter with the benefit of all of  Ms D’s evidence and with an opportunity for any party who wishes to test the evidence to have an opportunity to do so.  However, it is not essential that I have Ms D’s report.  So, if for any reason the report is not available on the return date, I anticipate that the matter will proceed to final determination nonetheless.

18. In relation to other matters raised by Ms D, I was informed by the independent children's lawyer that Ms D has indicated to her, clearly, that the child wants to stay living with his mother but that the father was seeking an arrangement for shared care or a division of care on an eight‑day six‑day basis.  Ms D did not see either of the father's proposals as realistic or consistent with the best interests of the child.  It is apparently Ms D’s view that only time spent during the day could be considered at this point, and even then with either supervision or the substantial attendance of a responsible adult.

19. There are two things which will become more significant later in these reasons but I mention them now because they arise out of the telephone call between counsel for the independent children's lawyer and Ms D.  The first is that the father indicated to Ms D that the week prior to his appointment to see Ms D he had purchased a gold necklace for the child at a cost of $2500 and that he indicated he had plenty of available funds with which to meet the reasonable cost of one‑half of the preparation of the report.  Ms D is, it is said, somewhat confounded by the fact that the father has now not paid her professional fees.

20. The other matter which counsel for the independent children's lawyer learnt from Ms D is that she challenged the father about a statement made by the child to the effect that he was taking a tram to or in the vicinity of M.  Ms D informed counsel for the independent children's lawyer that the father had said to her that he was living at M but did not want anyone else in the proceedings to know he was living anywhere other than at his stated address in C and in particular he did not want the wife to know.

21. Returning again to the letter which was sent by the father, in the third paragraph the father says that he has not been given access to his file at Slater and Gordon.  In the fifth paragraph to the letter he says that he has not been able to locate the relevant court documents and orders.  This is a court of record.  All documents in these proceedings are located on the court file.  A litigant, either in person or through his or her solicitor, may access the file, inspect the court documents and take copies of documents merely by attending the first floor of this Registry of the court.

22. The next matter raised by the father is that he has "recently lodged my application for legal aid".  He then goes on to refer to "my legal aid solicitor" as not having yet had an opportunity to attend to matters.  It seems to me that there is a leap in the father's narrative.  All he has indicated is that he has made an application.  The State of Victoria is no different from the rest of Australia.  Legal aid funds are scarce and they are allocated in accordance with various tests.  One test is financial.  That is a means test.  The other assessment criteria is often a merits test, in which the Commission makes an assessment of the merits of the case.

23. It does not appear to me to be certain that the father will be successful in obtaining legal aid.  Therefore, to await actions to be taken by a solicitor yet to be appointed, pursuant to a grant of aid yet to be made, it seems to me to be highly speculative and inappropriate having regard to the rights of other parties and most of all the child, for these proceedings to be concluded.  It is not as if this matter was brought on without notice.  It was set down for final hearing today some two months ago.

24. The next point made by the father in his letter is that, "I have been suffering from side effects from the mediation[sic] for my illnesses."  He does not say what the side effects are.  He does not say how he is incapacitated.  Any side effects from medication may in my view fall significantly short of disabling him from being able to attend court in person.  Clearly they have not precluded him from communicating by letter with the Court.  There is no explanation as to why the father could not attend Court today. 

25. I am mindful of the communication from Dr N dated 12 May 2009, which I have extracted above.  I am informed by counsel for the independent children's lawyer and for the mother that DG, to whom the communication relates, is an alias previously used by the father.  I gather that they are prepared to accept this letter addressed "To whom it may concern" as being a communication which relates to the father and I will proceed in that manner.  However, it says that the patient / the father was not well between September 2008 and May 2008.  That is approximately eight months ago.  The condition of the father a year ago appears to me to have little bearing upon his ability to attend court today.  Likewise, whereas the doctor refers to side effects of treatment for a hepatitis C infection, he does not say what the side effects are, other than an increase of stress and depression.

26. He says that one of the consequences of the side effects of the father's not being well is that "he could not handle with the urine test ordered by acting lawyer".  I interpret that to mean that the father could not cope with undergoing supervised urine testing for the detection of illicit drugs, as is required under orders made by Senior Registrar FitzGibbon in 2008.  In any event, the letter from the doctor indicates that the father's "condition is improved and he feels much better" now.  Therefore I am still at a loss to see why the father was not at court today.

27. Insofar as I can construe the correspondence from the father as a request for an adjournment, I decline the request.

28. The father is now a litigant in person.  His solicitors have filed the appropriate documents to withdraw from the proceedings.  As a litigant in person, the father takes responsibility for the conduct of these proceedings on his own behalf.  He is clearly aware of the final hearing today.  He is clearly aware of the time for the hearing, and he is obviously able to make written communication with the court.  Nonetheless he took no step to have any representative appear on his behalf and merely assumed that the court would accept that he could not appear in person.

29. I have already referred to the comments of members of the Full Court in the matter of Buljubasic.  I note that Finn J, whilst agreeing with the learned presiding judge, went to say the following in relation to communications directly between litigants and the court:-

    I would also want to endorse strongly the comments that have been made by the presiding judge regarding the importance of adherence to the traditional practice that those who seek from the court an adjournment of their matter, should appear themselves, or by legal representative, to seek the adjournment.  I deplore the apparently ever increasing practice of sending letters, faxes and telephone communications to the court for the purpose of seeking an adjournment.

    With respect, I adopt those observations in relation to this case.

30. The next issue is the extent to which the matter is ready to proceed to final hearing today or whether some further time must be allowed for the matter to be made ready for final hearing.  I am persuaded of the latter course. 

31. Today the mother and the independent children's lawyer do not have any affidavit material upon which they can directly rely.  That is a consequence of the Rules of Court which preclude them from filing affidavit material in anticipation of this first day of trial.  It has the unfortunate consequence, however, that the evidence upon which either of them would rely to obtain final orders is not in affidavit form and is not in a form of which I can be satisfied the other party, the father, has notice.

32. The other aspect that makes the matter unable to proceed today is that each now seeks that any time spent between the father and the child be spent at a contact centre under full supervision.  They are unable to satisfy me that the father has notice of that application (which is not committed to writing). The mother’s application initiating proceedings was filed in the Federal Magistrates Court on 2 October 2007.  She sought final orders the effect of which would be for her to share parental responsibility for the child with the father, for the child to live with the mother and for the father’s entitlement to spend time or communicate with the child to be reserved.  Today, the mother and the independent children’s lawyer are ad idem in seeking that the mother have sole parental responsibility and that the father’s time with the child be restricted to a fully supervised time at a contact centre.  They have nominated B Centre as an appropriate venue.

1. At the moment, orders made by Senior Registrar FitzGibbon in 2008 provide that the father spend time with the child each Saturday between 9 am and 7 pm and each alternate Sunday between 9 am and 7 pm.  The time is to be spent with the father's sister (the child’s paternal aunt) in substantial attendance.  I am informed that last weekend the father spent time with the child on Saturday.  This coming weekend the father would be entitled to spend time with the child on Saturday and Sunday between the hours of 9 am and 7 pm.

2. I am informed by counsel for the wife that she has drawn, as best she can today and with the assistance of a Spanish interpreter for the wife, an amended application in which she specifies the orders she seeks in relation to time to be spent between the father and the child.  Also with the assistance of an interpreter, the mother has completed an application form to B Centre.  That application will have to be accompanied by an application duly completed by the father, but it is a start.

3. I am not prepared to permit the mother to proceed with the application for final orders in the absence of the father having been accorded procedural fairness.  I will provide that service of the mother’s amended application be effected immediately, that is within 24 hours.  It can be effected by post, and the post will be directed to the address specified by the father in his recent correspondence to the court as his address for service.

4. Turning to the issue of evidence, I have received various exhibits today.  Those include a bundle of five letters from the independent children's lawyer to the father's then legal practitioners, requesting that the father undergo supervised urine drug screen testing for the detection of illicit substances within 48 hours of the date that the letters bear.  The letters are dated respectively 10 December 2008, 3 February 2009, 24 February 2009, 7 March 2009 and 28 April 2009 (see exhibit ICL1).

5. I am informed from the bar table that the only response received from the father in response to the requests for supervised drug screening results is one dated 9 February 2009.  I am informed from the bar table that the test results indicated that the father tested positive for opiates.

6. Also tendered (see exhibit W1) was a letter from Dr D, medical practitioner, indicating the names and dosages of approximately 14 medications taken by the father.  It does not go so far as to say that any of the medications, once ingested, would legitimately result in the reading for which the father was shown positive by the pathology result on 9 February 2009.  I am informed that the father failed to respond to the remaining four of the five requests for drug screening.

7. I am satisfied that there should be further evidence put before the court.  The time in which the mother can do so will be restricted to 4 pm next Tuesday, 19 May 2009.  Hopefully the report of Ms D, if it is going to be available in these proceedings at all, will be available by that date and the father can know the evidence in support of the case he is to face.  I will be making an order that the independent children's lawyer send any further report of Ms D to each party to the proceedings immediately it is to hand, and note that for that purpose the father has provided a facsimile number so that it can be transmitted by facsimile rather than relying on prepaid post.

8. It seems to me that with some goodwill this matter can be ready to proceed and be finally determined on 27 May 2009, together with such successive days thereafter as may be necessary.  In the event that any party seeks to cross‑examine Ms D or any other witness, they should give notice in the usual way.  If no notice is given, Ms D will not be available for cross examination.

9. This leads me to the final issue, which is the ex parte application made by the mother and supported by the independent children's lawyer that the father's time with the child be suspended pending final hearing and in lieu thereof any time spent be at B Centre.  In real terms the mother’s alternative application also means that the child will not see his father between now and the final hearing because, as I understand it, it is most unlikely that B contact centre would be available for this family within a short period of time, and that is also predicated on the father cooperating by making an application in circumstances where I am fairly sure he will not hold the view that a contact centre is appropriate.

10. That is another reason why I have chosen 27 May as an available date.  It is not an easy date for listing but this is a matter which I am satisfied should be concluded at the earliest possible date and as I am persuaded to make orders which will suspend the operation of the current provisions for the child to spend time with his father, I want that to be for the shortest possible period before the court can look at the matter and determine it on all of the evidence.

11. I have given careful consideration to the interim application which is brought without notice to the father.  I take into account the child’s best interests.  I note the objects of Part VII of the Act as being the desirability of the child having a meaningful relationship with each of his parents.  In this case spending time with the father is likely to be an ingredient of that meaningful relationship.  But I also am mindful of the need to make sure that the child is protected from harm, abuse or neglect.

12. I am satisfied that there have been changes of circumstances in several aspects since this matter was before Senior Registrar FitzGibbon in 2008.  I have had the benefit of reading the detailed reasons of Senior Registrar FitzGibbon delivered in May and in December 2008.  I conclude that before the learned Senior Registrar the father's case was constituted more by excuses than answers to issues raised about his parental capacity.  The orders made by Senior Registrar Fitzgibbon have not been appealed or set aside.

13. Before the Senior Registrar, there was the father's minimisation of the very serious and disturbing events as occurred on 3 December 2007.  The hospital records produced on subpoena are described by Senior Registrar FitzGibbon at paragraph 19 of the reasons delivered on 19 May 2008 as:

    "an incident in December 2007 at which on 3 December [the father] was found wandering, covered in faeces, presenting as perhaps highly intoxicated, which resulted in him being admitted to hospital, being violent, having to be shackled on all limbs until later that morning when he was more coherent, amenable and cooperative".

14. These were not matters which the wife knew anything of and certainly neither did the independent children's lawyer until evidence came to light by documents being produced on subpoena.  They were events which apparently took place a day after the matter had been listed in court.  They are not matters about which the single expert Ms D was aware.  They are relevant because the indications are that his self-control and ability to deal with his addictions is poor.

15. The learned Senior Registrar refers to the father’s explanation, given by counsel, that he had one drink which reacted badly with his prescribed medication and the Senior Registrar makes the observation that the father’s explanation did not sit at all with his explanation to a social worker at the Hospital on the morning of 3 April, where he told her he had commenced drinking and drank copious amounts.  Moreover the father said that he had been babysitting his three‑year‑old nephew.  Social workers had to contact the Department of Human Services.

16. Also evident in the Senior Registrar's reasons are explanations by the father as to why he missed responding to requests for supervised drug testing results made by the independent children's lawyer in the context of orders of this court.  There were further explanations as to why some results which were provided indicated the use by the father of opiates.  There is some mention of explanations proffered by the father as to why his case was not prepared by a new lawyer who had been appointed to act on his behalf.

17. In the context of observing the very many excuses and partial explanations previously provided by the father to a judicial officer of the court, in determinations which have not been set aside on appeal, it is of further concern to me that the father has not attended court today.  Today would have been an excellent opportunity to put the record straight and the father has had two months to prepare for doing so.

18. The other change of circumstances are that there is some evidence by Dr N that the father has suffered from stress and depression up to last May, 2008. In medical records which were tendered by counsel for the wife, and in particular a Hospital inpatient progress note, dated 17 April 2007, it was recorded that one feature of depression then suffered by the father was suicidal ideation.  Counsel for the mother also tenders a letter dated 5 January 1999 from the Alfred Infectious Diseases Unit which refers to the father, which is addressed to Dr T of the Sexual Health Clinic.  Omitting formal and irrelevant parts, the letter states:

    Thank you for your recent letter regarding [the father].  I have seen him several times over recent months with requests for opiate analgesia.  His current GP is Dr [B] who works in […].  Prior to this he was seeing […].  From my discussions with both of these doctors I understand that [the father] has a longstanding problem with opiate addiction, abuse and has been doctor shopping quite extensively.  [The father’s] main complaint when he presents is of lower back pain and Dr [B] has agreed to investigate this as required.  We have agreed that Dr [B] will be the only doctor who prescribes any opiate if it is required.  I hope that this is of some help to you.

19. It is submitted by counsel for the mother that the father’s mental health is precarious and that I ought not draw any comfort from the letter from Dr N where there has been an historical concern about the father doctor shopping.

20. There are the statements which I have heard, albeit hearsay, made by the father to Ms D in relation to the father's accurate abode being M.  This must be viewed in the context of the father's place of residence as being a real issue in the proceedings before this court.  It is the mother's case that the father does not reside at the address he provides.  There is also the rather curious statement allegedly made to Ms D about the father being so flushed with cash that he could spend $2500 on a necklace for the parties' 10-year-old son but now cannot pay the professional fees for the court sanctioned psychologist.

21. It is of utmost concern to me that the current orders do not provide for complete supervision of the child’s time with the father, but only that a paternal aunt be “in substantial attendance”.

22. Given the fact that I can accommodate this matter on 27 May, I think that the prudent course to take in relation to the child seeing his father is to suspend the operation of the current order.  I will provide that if it is possible for the family to be accepted by B Contact Centre, the father could have such contact at that centre as can be arranged, but that is under a completely supervised regime.  In making that order I am mindful that in fact no time may occur.

23. In coming to my conclusion on the mother's oral application for ex parte interim orders, I am mindful of the additional considerations to which I am directed under section 60CC.  This is as Senior Registrar FitzGibbon has earlier pointed out, a complex matter with a complicated factual matrix.  A number of matters upon which the husband has apparently given evidence previously appear inconsistent with business records which have been produced to the court pursuant to subpoena.  There are very many questions to answer in this case.  Hopefully they will answered on 27 May 2009, when I can finally determine the matter.  If it transpires that the father has a sound case for unsupervised time or even to have the child reside primarily with him, suitable arrangements can be made at the next hearing.  In the meantime, the child will have missed spending time with the father on the two intervening weekends.

24. In the meantime I have been satisfied that the best interests of the child will be met by taking the most conservative course of restricting his time with the father to such time as can be arranged to be had under complete supervision at B Contact Centre, if any such time can be arranged at all.

25. In suspending the child’s time with the father on this urgent interim basis, I am very mindful of the desirability of the child maintaining a meaningful relationship with the father.  It appears that the mother and the independent children’s lawyer support that relationship or otherwise they would not be seeking orders based on ongoing time being spent.  However, my consideration of the child’s safety in the face of the father’s unexplained failure to provide clean drug screens, the question of where he actually lives and his failure to attend court today or to prosecute his case by obtaining Ms D’s updated and current report, leave me with sufficient disquiet that I am prepared, on balance, to suspend the spend time orders between now and the adjourned date.  On balance, the child’s safety is the most important consideration.

26. I will direct that the independent children’s lawyer send an SMS tax message to the father notifying him of the suspension of the parenting orders and the final hearing on 27 May 2009.  If the father fails or neglects to appear on 27 May 2009, the matter may proceed to final determination without any further input by him. As I have said, I would prefer to have the up to date evidence of Ms D (who must also be available for cross examination if required). However, if Ms D’s new report is not obtainable due to lack of funding, then I will decide the case on what evidence is before the Court. Each of the parents must attend court in case they are required to be cross examined by the independent children’s lawyer and/or on behalf of the other party.

27. Having regard to the ex parte relief obtained against the father this day, he will have liberty to apply on short notice to vary or set aside those ex parte orders or as he may be advised.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:    20 May 2009