Sinclair-Small and Sinclair (No. 2)

[2008] FamCA 1057

FAMILY COURT OF AUSTRALIA

SINCLAIR-SMALL & SINCLAIR (NO. 2) [2008] FamCA 1057

FAMILY LAW – PRACTICE AND PROCEDURE – father seeks that parties attend family counselling to discuss proceedings – allegations of violence – not appropriate or practicable in circumstances for parties to attend a conference pursuant to s 65F

Family Law Act 1975 (Cth) s 65F

APPLICANT: Ms Sinclair-Small

RESPONDENT: Ms Sinclair

FILE NUMBER: ADF 1004 of 2000

DATE DELIVERED: 19 November 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 19 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R. Ellis

SOLICITOR FOR THE APPLICANT: Robert Ellis

COUNSEL FOR THE RESPONDENT: Mr B.W. McQuade

SOLICITOR FOR THE RESPONDENT: Ann Josephson Lawyers

Orders

1. Pursuant to Section 68L of the Family Law Act 1975 as amended THAT the infant children S born on the … September 1996 and B born on the …February 1999 be separately represented and that such representation be arranged URGENTLY by the Legal Service Commission of South Australia AND that to expedite the appointment of the Child Representative within seven day of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party in these proceedings.

2. The Court dismisses the interim proceedings and leaves the matter to be determined on any further application made by the Independent Children’s Lawyer and otherwise for the matter to be prepared for final hearing when it is reached for listing in due course.

3. The listing date is vacated before the Registrar on the 9 December 2008 and the final application is referred to a Docket Registrar for preparation in due course for final hearing.

4. Leave is granted to the husband to amend his Application for final orders.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1004 of 2000

MR SINCLAIR-SMALL

Applicant

And

MS SINCLAIR

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application in a case filed by the father, document 127 filed on 26 June 2008, where he seeks further orders. Counsel for the father today does not press all of the orders in the application in a case, but seeks that there be a conference of the parties under section 65F in relation to the parties attending family counselling to discuss the proceedings.

2. The Court must not usually make a parenting order unless the parties have attended family counselling to discuss the matter to which the proceedings relate, that there is an urgent need for an order to be made, or the Court is satisfied that it is not practicable to require the parties to attend a conference.

3. In the current proceedings I have today rejected the application to dismiss the proceedings under section 118 and am now dealing with the interim orders.  The history of the matter is quite clear.  There are considerable issues surrounding allegations of violence. 

4. The material provided by the father in support of the proceedings being annexed to his affidavit filed on 11 November 2008 raised concerns about the attitude of the father and his mental health.  The police record raises issues of violence, and the mother's concern for her safety.

5. I am therefore not satisfied that it is appropriate, and indeed I am satisfied it is not practicable in the circumstances of this litigation and the history of the parties to the proceedings, to order them to attend a conference under section 65F.

6. The issues to be determined in relation to whether the father should spend time with the children are unlikely to be resolved until such time as the significant issues concerning various matters are determined.  These would include significant issues concerning the father's mental health, the significant issues about family violence, the issues of the impact of any further orders and indeed ongoing proceedings brought by the father, upon the emotional and psychological wellbeing of the children and the mother.  Many of those matters will need to be determined, after all the evidence has been provided and tested.

7. I therefore do not propose to make any order by way of interim order that the children spend time with the father.  It does seem appropriate for there to be an urgent request for the appointment of an Independent Children's Lawyer.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  4 December 2008