McMaster and Cullis

[2007] FamCA 755

FAMILY COURT OF AUSTRALIA

MCMASTER & CULLISS [2007] FamCA 755

FAMILY LAW - PRACTICE AND PROCEDURE - Interim orders - Appointment of Independent Children's Lawyer

Family Law Act 1975 (Cth)

APPLICANT: MR MCMASTER

RESPONDENT: MS CULLIS

FILE NUMBER: MLF 985 of 2006

DATE DELIVERED: 26 JULY 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 26 JULY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS LESLIE

SOLICITOR FOR THE APPLICANT: PEARSONS SCHETZER & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MR STONE

SOLICITOR FOR THE RESPONDENT: COADYS

ORDERS

1. THAT pursuant to section 68L(2) of the Family Law Act1975 the child G born in November 2005 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation as soon as practicable.

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

3. THAT within 48 hours of notification of such appointment the solicitors for the respective parties provide to Independent Children’s Lawyer copies of all relevant documents relied upon.

4. THAT all extant applications be otherwise adjourned for listing and mention before Young J on Friday 31 August 2007 at 10.00 a.m.

5. THAT at the further hearing the solicitors for each party prepare and have available for the Court a document containing the particular orders, in detail, that their clients will seek in any forthcoming defended hearing.

6. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

7. THAT both the mother and father be in attendance at Court on the adjourned hearing date.

8. THAT the parties file no further affidavits prior to that mention date but their practitioners are required to be in a position on that day to inform the Court of the evidence that will be before the Court, the witnesses to be called and all other issues to be explored in the final hearing of this matter.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 985 of 2006

MR MCMASTER

Applicant

And

MS CULLISS

Respondent

REASONS FOR JUDGMENT

1. The matter of McMaster v Culliss MLF 985 of 2006 is before me for mention as part of the children's cases program.  Ms Leslie appeared today for the father, Mr Stone for the respondent mother.  The mother was in court, the father did not attend.  The reason for that non-attendance is primarily, as explained to me, because the matter was listed for mention and would not likely have involved any defended hearing.  I record that the father is legally aided in this matter but the mother is paying her own costs and expenses of the hearing. 

2. The appointed family consultant Ms B has prepared an updated Family Report of 23 July 2007 and that has been released to the parties by Registrar Mestrovic and has been received into evidence.  I formally receive that document into evidence and it will form part of the evidence to be considered in this case.  The parties have had limited time to consider or give instructions on that document, and Ms Leslie indicates to me that she has not discussed its various recommendations with the father.  I have read the report and the recommendations of paragraphs 30-34 inclusive.

3. The current orders dealing with the time that the father spends with this young child are as provided for on the 13 September 2006 orders.  They continue to operate and I am advised that the father has regularly spent time with the child pursuant to those orders.  Whether or not now there needs to be an increase or decrease in the time spent pursuant to the orders is not a matter that I will consider today, but it is to be on the court's agenda at the further hearing.

4. The primary application of the father is to obtain orders for more time to be spent with G so that ultimately there is a shared parenting arrangement both in practice and in time spent. 

5. That is opposed by the mother.  I have previously considered the appointment of an Independent Children's Lawyer but because of the age of the child have not made such an order.  Given now the continuing and perhaps escalating intractable conflict between the parents and also that there may be issues of emotional or psychological wellbeing of one or other of the parents I am intending to make an order for the appointment of an Independent Children's Lawyer to represent G.  Those orders are made by the court and not by consent, and they will be part of the orders this day.  I intend the appointment to take place as soon as practicable and for that Independent Children's Lawyer to be at court at the adjourned hearing date of 31 August 2007 when I will have this matter before me for mention at 10.00 a.m., but with a limited available time duration as I will otherwise be in a defended hearing that day.

6. Another issue that was raised today was the request of the father to file further affidavit material both in response to documents filed by the mother and otherwise to continue to present his case to the court.  I propose to make no orders for the filing of any further documents this day and to give no permission for any other affidavits of the parties to be filed, and will consider these issues on the adjourned mention date.  What I will, however, require on that adjourned date is for both parties to consider and have available to hand to the court a document limited to one page of the orders that they propose in both the immediate and longer term for their daughter and dealing with all issues of shared parenting, time to be spent, communication and any other relevant specific issue.  That document is to be provided to the Independent Children's Lawyer prior to the further mention date.

7. The other issue that was raised today was as to subpoenas.  I had previously made an order that no party was to issue a subpoena without leave of the court.  It does seem that that order has been overlooked and that a subpoena has been issued to the Department of Human Services.  Their file was produced to the court today.  I have somewhat casually and in very limited time perused that file.  It basically comprises file notes and a report from Dr C, general practitioner, and the essence of the report is that whilst the notification was made there should be no concerns in any way held by the Department as to the immediate parental care of the child.  I do not propose to release that report at this stage although I observe that the original file of the Department has been produced to the court.  I will entertain any other application on the adjourned mention date in relation to those subpoenaed documents.

8. On the adjourned date any further evidence that is to be adduced to the court will need to be determined, and specifically, any issue touching upon the recommendations of the family consultant, any extended parenting course, or any issue of and touching up the emotional or psychological wellbeing of the adults in this case will all need to be considered.  I make no finding on any of these matters at this time. 

9. The clear view that legal practitioners have expressed to the court this day is that there will need to be a conclusion of this case notwithstanding the very young age of the child.  I have generally indicated that this cannot be an ongoing matter.  For the school life of G it must be resolved.  Whilst one might expect there to have been discussion between parents and some sort of parental plan developed in relation to the child that seems wholly improbable on the current evidence and unfortunately the intractable relationship that has developed as between father and mother.  Again I make no comment upon the reason or cause therefore.  They are matters that may be of relevance at an adjourned hearing.

10. The essences of this hearing, in summary, are to say that I am urged to consider a final hearing of this matter and will likely to do and will make appropriate orders on the adjourned hearing date.  With that in mind, I would require practitioners to attend the adjourned hearing date with a formulated plan for trial both as to filing of affidavits and a timetable that as is reasonable to their clients, and endeavouring to dispose of all outstanding applications by way of a final hearing prior to Christmas. 

11. I will have these brief reasons transcribed and placed upon the file.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 30 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MCMASTER & CULLIS