Pearce and Cole (No 2)

[2009] FamCA 916

FAMILY COURT OF AUSTRALIA

PEARCE & COLE (NO. 2) [2009] FamCA 916

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment – Denied

APPLICANT: Mr Pearce

RESPONDENT: Ms Cole

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 13158 of 2007

DATE DELIVERED: 7 September 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 7 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Testart

SOLICITOR FOR THE APPLICANT: Stella Stuthridge & Associates

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Curtain

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Heinz & Partners

Orders

BY CONSENT IT IS ORDERED

1. That all previous parenting orders be discharged.

1. That the Father and Mother have equal shared parental responsibility for the child of the relationship, … born … December 2002 ("the child").

1. The child live with the Mother.

1. That the child to spend time and communicate with the Father as follows:-

(a)Each Sunday from 9.00am to 6.00pm with the Father being permitted to take the child to his residence in T for a period of 9 months from the date of these Orders;

(b)Thereafter for a period of a further 9 months, each alternate weekend from 9.00am Saturday to 6.00pm Sunday;

(c)Thereafter each alternate weekend from after school on Friday, subject to Order 7 hereof, to 6.00pm on Sunday;

(d)Time referred to in sub-paragraphs (b) and (c) be suspended during all school holidays commencing 1 August 2011;

(e)From 5:00pm on 25 December 2010 to 5:00pm on 26 December 2010 and in each alternate year thereafter;

(f)From 5:00pm on 24 December 2011 to 5:00pm on 25 December 2011 and each alternate year thereafter;

(g)From 1 August 2011, for one half of all school term and long summer holidays at times to be agreed, and in default of agreement, for the first half in even numbered years and the second half in odd numbered years;

(h)By telephone each Wednesday between 6:00pm and 6:30pm with the Father to make such call and the Mother to facilitate the same;

(i)At such other time as may be agreed; and

(j)At Christmas 2009, from 2.00pm to 8.00pm.

1. Time referred to in Order 4(a) and 4(j) be supervised by the paternal grandmother in accordance with the undertaking previously given by her to the Court.

1. Time referred to in Order 4(b) shall be spent, as to the Sunday, with substantial attendance of the paternal grandmother.

1. For the purposes of Order 4(a), (b) and (e)-(i) inclusive, the Father shall collect the child from B at the commencement of time, and there from at 5.30pm for the purposes of Order 4(c), and the Mother shall collect the child there from at the end thereof.

1. The parties keep each other informed in a timely manner as to their residential address and telephone numbers.

1. The parties do establish, maintain and use a communication book to travel with the child on time spent.

1. The Father abstains entirely from alcohol for a period of 24 hours prior to and at all times during which the child is in his care.

1. That the parties and their servants and agents be and are hereby retrained from denigrating one another in the presence or hearing of the child and permitting any other person to do so.

1. That the parties inform each other of any medical appointments made on behalf of the child and authorise any medical practitioners who attend upon the child to provide the other party with any information relevant to the care of the child and any medical reports produced in relation to the child.

1. That the parties contact each other immediately should the child suffer serious injury or sickness or require urgent medical attention by a doctor or hospitalisation while in their respective care.

1. That the mother provide to the child’s school an authority to communicate with the father about special events, school photos and school reports and other school related issues as may arise.

1. Pursuant to s.65L of the Family Law Act 1975 compliance with these orders be supervised by a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of the Family Court of Australia for a period of 18 months and for the purpose of this order the Family Consultant shall provide such assistance as is reasonably requested by a party in relation to compliance with and carrying out of the parenting orders and the Family Consultant shall prepare a report to the Court if requested by any party in any future court proceedings.

1. At any time when the child is in the Father’s care he be and is hereby restrained by injunction, by himself, his servant, or agents, from bringing the child into contact with Mr AS, S Pearce or into the W Hotel.

1. Notwithstanding any other Orders to the contrary herein, the child shall spend 9.00am – 6.00pm with the Mother on Mother’s Day, and 9.00am – 6.00pm with the Father on Father’s Day.

1. At any time when the child is in the Father’s care, the Father be and is hereby restrained by injunction by himself, his servants, or agents from exposing the child to physical, emotional, mental or verbal violence.

1. When, for the purposes of Order 4 hereof, the child commences to spend time with the Father on an overnight basis, he shall ensure the child has appropriate private sleeping accommodation, and that she attends to her own bathing and toileting requirements.

1. Pursuant to s.65DA(2) and s.62B, the particulars of 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 the parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

1. All extant applications be otherwise dismissed and this matter be removed from the list of cases awaiting hearing.

1. Certify for Advocacy.

1. The ICL be and is hereby discharged as at this date.

AND THE COURT NOTES:

A.       The father consents to Orders 5, 6, 10, 16, 18 and 19 being made without in any way conceding there is any necessity therefore.

B.       The ICL does not consent to or oppose these orders

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13158 of 2007

MR PEARCE

Applicant

And

MS COLE

Respondent

REASONS FOR JUDGMENT

1. This case was booked in for a five-day final hearing due to start today.  At 10 o'clock this morning I was asked to allow the parties some time for discussion.  At that stage Ms Cole, the mother, was here and unrepresented.  She was given the opportunity to see the Duty Lawyer.  She declined. Subsequently, she did consult the Duty Lawyer who has kindly stepped in to represent the mother on what became an adjournment application on the mother's part. 

2. The adjournment application is strenuously opposed by the father.  The Independent Children’s Lawyer seems to have expressed a preference for the matter to proceed, but has pointed out some reasons why they might not take that view very strenuously.

3. The child is aged 6 ¾.  She presently sees her father in a strictly supervised setting.  The case is about whether that supervision should or should not continue. 

4. What troubles me enormously is the length of time that the child has had her life ruled by the court system.  This case has been in the system for an unconscionable period of time.  It started in 2006.  For reasons that are incomprehensible to me, it spent a very, very significant time in the Federal Magistrates Court, before Walters FM transferred the matter to this court in November 2007.  Thereafter, I have to say, it has spent a very long time in this court.  I have no understanding as to why that has occurred.  I can only pick up the history readily from earlier this year. 

5. The matter was then listed before Young J for three days.  His Honour could not hear the matter.  It was then case‑managed by Cronin J and put in the list to be heard by Monteith J starting today.  When it became apparent that Monteith J would not be in Melbourne today, to ensure the case did not suffer any further delay, it was simply transferred into my docket for me to hear.  A very experienced Registrar held a telephone mention on 13 August, and the matter was finally readied for trial.

6. What is said on the mother's behalf today is that she was legally represented through a lawyer funded by Victoria Legal Aid until 5 August.  On that day, a Notice of Ceasing to Act was filed, was sent to the mother and arrived within a day or so.  The covering letter simply advised her that the solicitor had filed the Notice of Ceasing to Act, gave her the proper details as to whom she should contact, advised her of the telephone mention on 13 August, and told her to contact the case co-ordinator in the Family Court and before that, VLA.   

7. It is not very clear as to what has happened between 5 August and 7 September, but I make the observation that in that period of four to five weeks, the mother had ample time to have this case ready for hearing. 

8. She says that she has been dealing with someone she knows only as “George” at VLA.  She is not able to produce any material from VLA.  She is not able to produce any correspondence between herself and VLA.  She is not able to produce any correspondence between herself and her former solicitor. 

9. The mother says that she had immediately contacted her former solicitor to understand why they had ceased to act.  She said she had simply failed to keep an appointment on 5 August because her child was unwell.  Today, she suggests that might be why the solicitor ceased to act.  Otherwise, she said that she has made telephone calls but not been able to ascertain the answer. 

10. She said that there has been toing and froing between her former solicitor and VLA, that the file has not been released and that although she has consulted a new solicitor, a Ms Brewer at Hillier Quinn and Moore, she has not been able to instruct them because the legal aid position has not been clarified.

11. I note from the ICL’s counsel's instructions, at the telephone mention before Registrar Field on 13 August, the mother told the Registrar then that she had a new solicitor and that she wanted to file two particular affidavits.  Time was extended for that to occur, and she was also advised to file a Notice of Address for Service.  That is a little at odds with the mother's version to me today, which was that she sought an adjournment which was not granted.

12. In any event, when I weigh all that up, along with the fact that I know it is difficult for people to represent themselves in Family Law proceedings, I reach the conclusion that, as in every other aspect of proceedings, the child’s well-being is of course paramount.  I am very concerned that I cannot be acting in her best interests to further delay this hearing.  The case must proceed and I am prepared to engage with the mother now as to what she might need, in terms of any documents that she might not have brought to court.  I will give her the appropriate sections of the Family Law Act to look at, but in my view she has had ample time to prepare, even if she were to represent herself, and for that reason the matter should go ahead.

13. I will also talk with counsel about her being able to update the material that she has previously filed. I am comfortable that she was represented when that material was prepared.  It is unlikely that there has been very significant changes since then because the current regime was on foot at that time.  But, subject to giving people any necessary time and being fair to everybody, I will give her the opportunity to update that material in the witness box.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  7 September 2009