Pickering and Pickering (No 5)

[2010] FamCA 1112

FAMILY COURT OF AUSTRALIA

PICKERING & PICKERING (NO. 5) [2010] FamCA 1112

FAMILY LAW – PROCEDURAL – interim orders – extension of time for parties to file and serve documents – where matter now concerns both children – previous procedural orders amended accordingly – adjourned for further consideration

Family Law Act 1975 (Cth)

APPLICANT: Ms Pickering

RESPONDENT: Mr Pickering

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADF 1919 of 2005

DATE DELIVERED: 23 November 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 23 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Eid

SOLICITOR FOR THE APPLICANT: Nicholls Gervasi & Co

THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGinn

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. The time is extended for the mother to file and serve her documents nunc pro tunc.

2. The mother is given leave to amend her Initiating Application to include orders sought in relation to the child S born … December 2000 PROVIDED THAT the mother file and serve such amending Initiating Application and any further affidavit in support of interim orders in relation to the matter by 4.00 pm on 30 November 2010.

3. The father is given an extension of time to file and serve (including the Independent Children’s Lawyer) any answering documents by way of Response and affidavit in relation to the interim orders PROVIDED THAT the same is filed and served by 4.00 pm on 8 December 2010.

4. The time is extended for the father to comply with the order of 28 October 2010 (which relates to the production of copies of the documents filed in this Court since the discharge of the Independent Children’s Lawyer in October 2008 to the Legal Services Commission) to 4.00 pm on 8 December 2010.

5. Paragraph 7 of the orders of 28 October 2010 is amended in relation to the appointment of the Independent Children’s Lawyer to apply to both children H and S.

6. Paragraph 9 of the orders of 28 October 2010 is extended in relation to the section 62G(2) report being prepared by Family Consultant, Dr B (if possible) to include the issues in relation to and the views of the child S as well as the child H.

7. During the period of the adjournment paragraphs 4, 5 and 6 of the orders of 28 October 2010 are continued.

8. This matter is adjourned for further consideration of the interim orders to Monday 13 December 2010 at 9.15 am before the Honourable Justice Dawe.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1919 of 2005

MS PICKERING

Applicant

And

MR PICKERING

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have before me today applications primarily in relation to the child, H, but also now in relation to another child of the parties, S.  Today, the Court has the benefit of Mr McGinn appearing as counsel for the Independent Children’s Lawyer. The father appears in person unrepresented.  The mother is represented by Mr Eid.  On the last occasion, I specifically made orders adjourning the matter to this morning and directing the parties to file and serve various documents.  I also made an order in relation to section 11F, attendance upon the Family Consultant.  The mother did not file the documents within the time provided but shortly thereafter.  The father complains that he was not served until 10 or 11 November.  He also complains that one of the pages of the annexures was not legible.

2. Notwithstanding that he received the documents on or about 11 November 2010, he has not filed and served any other documents since the matter was last before the Court. 

3. He did not attend upon the interview with the Family Consultant.  However, he puts to the Court that the information concerning the appointment was sent to his former solicitors and not to the post office address which is his address for service currently on the Court file (being an address for service filed on 6 October 2010).  It appears that he did not answer the mobile telephone call to the number given that was available to the Family Consultant at the time.  Therefore, I am not drawing any adverse conclusions in this instance about the father’s failure to attend the assessment carried out by Dr B which is the subject of the report of 15 November 2010.

4. There is, however, considerable difficulty in attending to the matter.  The father is now seeking an adjournment so that he can file his answering documents. 

5. I propose to extend the time for the mother to file and serve those documents which are now before the Court filed by the mother to the time that the filing and service actually took place.  The legal expression being nunc pro tunc.

6. In relation to the question of a further 11F conference in view of the matter in requiring further orders being made in due course, I propose to order that the section 62G report be a report prepared by the Family Consultant Dr B and that it include the views of the child, S.  Paragraph 9 of my order of 28 October 2010, should be now read to include both H and S.  

7. Similarly, in relation to the appointment of the Independent Children’s Lawyer, paragraph 7 of my order of 28 October 2010, is now amended to apply to both H and S. 

8. I do not propose to order that Ms SA prepare the report as I understand that there are considerable disputes and ongoing difficulties in relation to costs issues which would impact upon the preparation of a report promptly by Ms SA and therefore, propose that the section 62G report if possible be prepared by the Family Consultant. 

9. In relation to the interim issues, I gave reasons on 28 October which related to the child, H, living with the mother and suspending the previous orders.  I propose to continue those orders during the period of adjournment such that H resides with the mother and the orders - paragraph 1 and 2 of the order of 22 October 2008 are suspended so far as it relates to H.

10. I am not being asked to make any interim order varying the orders at this stage that apply to S and I do not do so. 

11. In relation to the orders concerning H, I repeat the reasons I gave on the last occasion but also rely upon the affidavit of the Family Consultant sworn on 15 November 2010 which includes a summary of the Child Inclusive Conference and in particular, the interview with H where it refers to H expressing strong views and impressing as a mature young man.  The material in that report supports the interim orders remaining as they currently are during the period of the adjournment.  I therefore, adjourn the matter to 13 December at 9.15 before me for further consideration of the interim orders.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 23 November 2010.

Associate: 

Date:  6 December 2010