Prantage & Prantage (No 2)

[2013] FamCA 1137

FAMILY COURT OF AUSTRALIA

PRANTAGE & PRANTAGE (NO 2) [2013] FamCA 1137

FAMILY LAW – Parenting proceedings – no request for re-appointment of independent children’s lawyer

APPLICANT: Mr Prantage

RESPONDENT: Ms Prantage

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11263 of 2008

DATE DELIVERED: 13 March 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 13 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Smallwood

SOLICITOR FOR THE RESPONDENT: Lampe Family Lawyers

Orders

IT IS ORDERED THAT

1.This matter be fixed for final hearing before me on 5 June 2013 at 10.00 am estimated to take 3 days NOTING THAT the matters requiring determination are:-

a)the wife’s application that the husband’s parenting application be dismissed on the basis that there is not sufficient or any change in circumstances such as to warrant parenting matters being re-litigated;

b)the wife’s application for an order against the husband pursuant to s.118(1)(c) of the Family Law Act 1975 that he shall not without leave of the Court institute proceedings under this Act in relation to the children; and

c)costs.

2.In anticipation of the hearing each party file and serve any amended application or response and all affidavit material or proofs of evidence in support of his/her case as follows:-

a)the applicant husband by 12.00 noon on 11 April 2013;

b)the respondent wife by 12.00 noon on 26 April 2013 and at the same time file and serve any list of objections she has to the material or evidence relied upon by the husband;

c)the applicant husband by not later than 12.00 noon on 3 May 2013 notify the wife of any objections taken by her to his material with which he agrees AND IT IS NOTED BY THE COURT that the husband informs the Court and the wife that he now does not rely upon his affidavit sworn 27 December 2012.

3.This matter be listed for mention in court before me on 8 May 2013 at 9.00 am for the purpose of checking on the readiness of the matter for trial.

4.By not later than 14 May 2013 at 12.00 noon the wife file and serve a case outline document including a list of authorities relied upon and a list of documents to be relied upon by her and send same to my Associate by email ….

5.By not later than 21 May 2013 at 12.00 noon the husband file and serve a case outline document including a list of authorities relied upon and a list of documents to be relied upon by him and send same to my Associate by email ….

6.I reserve the wife’s costs of and incidental to this day.

IT IS DIRECTED THAT:

7.The discussion by telephone link between Dr NZ and the Court this day be transcribed and, when transcribed, a copy be placed on the Court file.

AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.
AND IT IS FURTHER NOTED that in the event that an earlier hearing date becomes available the parties will be notified by email and are requested to give the possibility of availing himself/herself of an earlier hearing urgent consideration.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Prantage & Prantage (No 2) 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 11263 of 2008

Mr Prantage

Applicant

And

Ms Prantage

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. In relation to the appointment of an independent children’s lawyer I’ve heard the very brief evidence of Dr NZ.  It is, as I have indicated to the parties, not a set of proceedings in which I may necessarily require to hear the children’s views on any topic but it would be a matter of having the children involved and appraised of the progress of the proceedings and according them the respect and involvement in the proceedings that their age would indicate they could be entitled to.

2. I note that both parties say that these are proceedings of enormous complexity.  Both parties say that things are not as they would immediately appear and both parties refer to the evidence in previous proceedings as being “extraordinary”.  Having identified those common labels, however, my very strong impression is that each party applies those labels for entirely different reasons.

3. Dr NZ is a therapist of the children.  I’ve heard her evidence.  I am satisfied that at this stage it would not be in their interests to make a request that an independent children’s lawyer be appointed. Her view is that it would be disruptive to appraise them of the proceedings and disruption is something that ought be avoided for these children who have been through a lot.  On the wife’s case and on Dr NZ’s evidence the children are currently well settled and progressing satisfactorily.  The husband’s case is quite the opposite.

4. I don’t think anything else requires reasons for decision.  These are the orders that I would propose to make in broad terms.  That the matters that I have to determine and I have identified be listed for hearing before me on 4 June estimated to take three days.  I’m not pronouncing the orders now.  I’m merely giving you an idea of what they can be and I will invite submissions about the convenience of the dates.  The matter be listed for mention before me in Court on 8 May to make sure that everything is in place for the hearing on 4 June. The husband file and serve any amended application or any affidavit or proof of evidence in support of his case by 11 April 2013, and I seek clarification that he now does not rely on his affidavit which was previously filed in four volumes.  The wife can put in any response upon which she relies by 26 April 2013 or further or alternatively a list of objections to the husband’s material.  By 3 May the husband notify the wife of the objections he agrees to, if any.  That each party file and serve an outline of case and a list of documents to be relied upon.  Whereas the husband is the applicant in the proceedings before the court it is the wife who really has carriage of the matters that require determination on the hearing date so she should go first by filing her trial document, that’s an outline of case and a list of documents relied upon by 14 May and then the husband should follow by 21 May.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 13 March 2013.

Associate: 

Date:  14 June 2013