Melrose and Melrose

[2009] FamCA 429

FAMILY COURT OF AUSTRALIA

MELROSE & MELROSE [2009] FamCA 429

FAMILY LAW – PROCEDURAL – Interim hearing

APPLICANT: Mr Melrose

RESPONDENT: Ms Melrose

INDEPENDENT CHILDREN’S LAWYER: Robert Seymour

FILE NUMBER: ADF 99 of 2006

DATE DELIVERED: 27 April 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 27 April 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Mrs Read

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr J Bowler

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Robert Seymour

Orders

1. That this matter be listed for a conclusion hearing commencing at 10:00am on 19 August 2009 with a time estimate of 5 days.

2. That the father file and serve his affidavit of evidence in chief and the affidavit of evidence in chief of his current partner Ms M by 4:00pm on 3 July 2009.

3. That the mother file and serve her affidavit of evidence in chief and the affidavits of evidence in chief of her mother Ms F and Mr T by 4:00pm on 3 July 2009.

4. That further consideration of this case be adjourned to 9:00am on 21 July 2009 for directions.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 99 of 2006

MR MELROSE

Applicant

And

MS MELROSE

Respondent

EX TEMPORE REASONS

1. This is a continuation hearing in this matter.  The first day of trial took place on 20 January 2009.  It was adjourned to today for an updated family assessment report to be prepared.  The particular reason for that was that the Family Consultant's previous report was done before the child the subject of the proceedings, a son, had commenced to spend increased time with the father, and thus we needed to have the expert's view of what was now happening with the child as a result of spending that increased time with his father.

2. We how have the report.  Unfortunately it was received too late for Mrs Read to take any detailed instructions from her client about it.  However, Mrs Read does not seek an adjournment for that purpose, given that her instructions are quite clear, namely that despite the recommendations of the Family Consultant her client still wishes to proceed with her application that the child remain living with her. 

3. I have then proceeded to look at listing this matter for final hearing and addressed again the question of witnesses, the time frame for preparing affidavits, and the time required for the hearing.

4. In relation to the hearing, I propose to list it in August; five days is required and I accept that that is needed in this case.  In terms of witnesses, there is no change to what was discussed on the last occasion.  The father, who is dux litis, will give evidence himself and he will call, as his one and only witness, his current partner, Ms M.  From the mother's point of view, she will give evidence, of course, and she will call two witnesses, the maternal grandmother and a Mr T.

5. The Independent Children's Lawyer will need to call Ms D, a psychologist.  Mrs Read wishes to cross-examine her, in light of the recommendations of Ms W, and particularly ascertain from her her view as to what impact a change of the nature recommended by Ms W might have on the child, given the syndrome from which he suffers, and I am comfortable with that line of cross-examination.  Ms W is needed for cross-examination, particularly by Mrs Read, and the court will arrange Ms W and call her as the Court's witness. 

6. There has been an affidavit filed by the Independent Children's Lawyer, annexing a letter from the principal of H School, Mr C, and Mrs Read wishes to cross-examine him, thus the Independent Children's Lawyer will need to arrange Mr C to give evidence. 

7. I should also say that the Independent Children's Lawyer needs to check the availability of Mr C and Ms D for when I propose to list this matter for a conclusion hearing, and the court also needs to check with Ms W.  She is a family consultant based in Melbourne and we will arrange a video-link to hear her evidence.

8. In terms of the filing of affidavits, I propose to make an order that they be filed and served by the end of June.

I certify that the preceding 8 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 27 April 2009.

Associate