Samuels and Errington

[2007] FamCA 43

FAMILY COURT OF AUSTRALIA

SAMUELS & ERRINGTON [2007] FamCA 43

FAMILY LAW – CHILDREN – EXPEDITION OF HEARING

APPLICANT PATERNAL GRANDPARENTS: Mrs Samuels
Mr Samuels

1st RESPONDENT MOTHER: Ms Errington

2nd RESPONDENT FATHER: Mr Samuels

FILE NUMBER: HBF 974 of 2006

DATE DELIVERED: 7 February 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 7 February 2007

REPRESENTATION

APPLICANTS: 

In person

FIRST RESPONDENT:

SOLICITOR FOR 2^ND RESPONDENT:

In person

Mr Turnbull

Orders

1. THAT the return date of 26 February 2007 at 10.00am be vacated.

2. THAT this matter be listed for defended hearing for three days commencing at 10.00am 7 May 2007 at Hobart.

3. THAT leave be given to all parties to have this matter re-listed before the Family Court Hobart on the giving of seven days notice to the other parties and to the Court.

4. THAT the interests, in these proceedings, of the child  K born […] 1998 (“the child”) be independently represented by a lawyer and it is requested that Legal Aid Commission Tasmania arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Hobart.

5. THAT forthwith upon appointment by the said Tasmanian Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

6. THAT within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

7. THAT the hearing of these proceedings be expedited and THE COURT NOTES that the proceedings involves interstate relocation.

8. THAT a report is to be prepared by a Family Consultant nominated by the Manager, Child Dispute Services in respect of the relationship between the child K and the applicants, the respondents and any other significant person in his life, including issues of relocation and risk.

9. THAT for the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents.

10. THAT the report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

11. THAT the parties shall attend an ensure the child attend all necessary appointments for the preparation of the Family Report.

    IT IS DIRECTED

12. THAT

    all parties, including the Independent Children’s Lawyer to file and serve all affidavits upon which they rely on or before 4.00pm on Friday

    
    

    23 March 2007.

13. THAT any application for change of venue be made to the Hobart Registry of the Family Court of Australia.

14. THAT each of the parties, on or before 4.00pm 23 March 2007 file amended applications and responses setting out precisely what orders they seek.

    IT IS FURTHER ORDERED IN CHAMBERS

15. THAT the requirement for payment of a hearing fee be remitted in these proceedings.

    IT IS CERTIFIED

16. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 974  of 2006

SAMUELS AND SAMUELS

Applicant Paternal Grandparents

And

ERRINGTON

Respondent Mother

And

SAMUELS

Second Respondent Father

REASONS FOR JUDGMENT 

1. This is an application which came before the court on Monday of this week following a determination by his Honour Carmody J on 16 January 2007

2. There are three oral applications made on behalf of the respondent father (who is now represented by Mr Turnbull), that is, firstly, the appointment of an independent children's lawyer, secondly, the ordering of a family report and, finally, the question of expedition.

3. These proceedings were commenced on 26 July 2006 and as such are conducted under Division 12A of Part VII of the Family Law Act.

4. The proceedings came before me on 31 July 2006 and then again on 4 August 2006 at which later time there was conducted an interim hearing and interim orders were made.

5. Circumstances changed and the matter came before me on 20 December 2006.

6. Orders were suspended and the matter was heard by a judge of this court on 15 January 2007 and further orders were made.

7. The matter came before me on Monday, 5 February 2007.  At that time the respondent father was represented.  There was no appearance by the two applicants, nor was there an appearance by the mother who was in Western Australia.

8. I have had the matter listed before me today so that the mother and applicants could be given the opportunity to make submissions in relation to the matter.

9. The first matter I need to deal with is to whether this is a matter where there ought to have appointed an independent children's lawyer.  Bearing in mind the issues raised before his Honour Carmody J and the fact that that this appears to be an interstate relocation matter, it is appropriate that an independent children's lawyer will be appointed and I will be making that order.

10. The second issue is whether a family report ought to be ordered.

11. This is a matter where there are the issues of relocation and are issues as to the welfare of the child bearing in mind the matters dealt with by his Honour in his reasons, and it is appropriate that a family report be prepared.

12. The family report should be prepared by someone from the Family Court or a regulation 8 reporter, depending on the views of the head of the family consultants' section of this department, and it may need that reporter to travel to Western Australia for the purpose of completing that report, and if that is the case so be it.

13. Finally there is the question of expedition.  K has been the subject of this matter coming before the court about seven times since July 2006.  The matter involves serious issues which include the issue of interstate relocation.

14. Accordingly the hearing of this matter will be expedited and I will be listing it for hearing at the Family Court Hobart on 7 May 2007.

I certify that the preceding 14 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.

Associate: 

Date:   9 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SAMUELS & ERRINGTON