METTRICK & METTRICK

[2014] FamCA 472

FAMILY COURT OF AUSTRALIA

METTRICK & METTRICK [2014] FamCA 472

FAMILY LAW – PRACTICE AND PROCEDURE – Adjourned date – part heard case – very high conflict – necessity for Independent Children’s Lawyer to be represented when neither parent is legally represented

APPLICANT: Mr Mettrick

RESPONDENT: Ms Mettrick

INDEPENDENT CHILDREN’S LAWYER: Ms S Sheed

FILE NUMBER: MLC 12017 of 2007

DATE DELIVERED: 26 June 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 26 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER :	Mr P Testart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER : SMR Lawyers

Orders

IT IS REQUESTED THAT:

1.Victoria Legal Aid give consideration to further assistance to enable counsel for the Independent Children’s Lawyer to continue his further appearance in this matter.

IT IS ORDERED THAT:

2.This matter be adjourned part-heard to 9.30 am on Wednesday 9 July 2014.

3.Until further order, the father spend time and communicate with the children B born … 1999, C born … 2001 and D born … 2005 (“the children”) during the forthcoming school term holidays as follows:-

a)for face to face time, from 6.00 pm on Tuesday 1 July 2014 to 6.00 pm on Saturday 5 July 2014;

b)by telephone on the occasion of B’s birthday at 11.00 am on … July 2014 when the mother will cause B to place a call to the father at his mobile service on …; and

c)on Sunday 29 June 2014 at 7.00 pm when the father will place a call to the children on the landline telephone connection to their home.

4.Until further order, the father be and is hereby restrained by injunction from causing, permitting or suffering any communication between himself and the children, or any of them, which is not provided for in this Order.

5.That pursuant to Sections 65DA(2) and 62B the particulars and 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 Fact Sheet attached hereto and those particulars are included in these orders.

IT IS DIRECTED THAT:

6.The reasons for decision this day in relation to the adjourned date be transcribed as a matter of urgency and when settled copies be made available to the parties and the Independent Children’s Lawyer provide a copy of the reasons to Victoria Legal Aid.

AND THE COURT NOTES that counsel for the Independent Children’s Lawyer has requested of the father a download of the father’s facebook data in its entirety and make that available to him prior to the adjourned date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mettrick & Mettrick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 12017 of 2007

Mr Mettrick

Applicant

And

Ms Mettrick

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

EX-TEMPORE

1. I will deliver some reasons for decision adjourning the matter to Monday.

   RECORDED:  NOT TRANSCRIBED

2. In this matter, today we will sit for a full day it being the seventh day of the final hearing of the competing applications in relation to the three Metrick boys.  These proceedings are important, but they’re also very extensive having first been initiated in 2008 or 2009 and the subject of final orders made by me in 2009.  The final orders concluded the proceedings on the basis that the mother had sole parental responsibility and the father had supervised time with two of the three boys.  The orders were sought by consent and no findings of fact were made.  In the particular circumstances of this case it is necessary in this trial to revisit the early allegations by both parties against the other to determine what ought to happen now by way of final orders.  We are in the process of doing that.

3. Early on in the proceedings, an Independent Children’s Lawyer was appointed and that was Ms Susanna Sheed in Shepparton.

   RECORDED:  NOT TRANSCRIBED

4. She was the Independent Children’s Lawyer in the 12 day hearing in 2009 and was re-appointed for this proceeding.  Her preliminary view is that the mother ought to retain sole parental responsibility and the boys have no time with the father.  The father seeks shared parental responsibility and equal time.  As an alternative he seeks that he have sole parental responsibility and, if the mother wishes to reside elsewhere than in E Town, the boys live with him.  The mother sought a continuation of the status quo which is unsupervised alternative weekend time and part of school holidays.  However, during the running she has adopted the position of the Independent Children’s Lawyer.

5. As I’ve indicated, we are in the seventh day.  I’m unable to continue the matter tomorrow because I have a special listing.  The first time that I will be able to recommence the hearing is next Monday.  I’m advised by Mr Testart, who was also counsel retained by Ms Sheed in the final hearing in 2009, that after today there is no longer any financial assistance extended by Victoria Legal Aid to cover his appearance and I’ve been aware that for some time whatever funds were available to cover the work of Ms Sheed have long since expired. 

6. The mother and the father both represent themselves.  It’s a case of high conflict.  It’s one of the more troubling cases that I have encountered.  It’s a case where the parties, as I perceive them now, are not necessarily disadvantaged by representing themselves.  Each presents their case without the benefit or the detriment of his/her case being filtered by legal representation.  However this lack of filtering goes to illuminate the issues rather than lessen them. 

7. I am concerned it may not be possible to determine this matter fairly and consistently with the best interests of the children without the Independent Children’s Lawyer participating in the case and being represented by counsel.  I make this observation whilst recognising that the husband feels hardly done by in relation to the Independent Children’s Lawyer, in particular, he feels persecuted and as if the Independent Children’s Lawyer is digging too deep into the facts and circumstances of his behaviour.  I must say that my observation is that the counsel for the Independent Children’s Lawyer is conducting himself in a way which is fair and professional.  It is his job to test the cases of both parents and this is a case where the husband’s case requires somewhat more testing that the wife’s case; or so it seems at this point in time.  As with many high conflict parenting cases, it can be futile to leave responsibility to adduce evidence central to the children’s needs solely with the parents.

8. The mother’s case has concluded.  The father’s case may conclude today.  However, when we re-convene the family consultant who has prepared three of the six assessments in this proceeding will be required for cross-examination.  It is essential, in my view, that the Independent Children’s Lawyer be able to cross-examine the family consultant as well as to make final submissions.  The proceedings have been allocated three further sitting days.

9. I make these comments to advise the parties of the future listing date of Monday, but also to impress upon those responsible for funding cases of this nature, that this is a case which, in my view, is most deserving of further assistance.  I hope that this request is met favourably.

Note: After these reasons were delivered, the adjourned date was changed from 30 June 2014 to 9 July 2014 and the parents reached some accord about time and communication during school term holidays.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 26 June 2014.

Associate: 

Date:  2 July 2014