T & B

[2007] FamCA 1210

FAMILY COURT OF AUSTRALIA

T & B [2007] FamCA 1210

FAMILY LAW – CHILDREN – With whom a child spends time – supervised contact

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – further preparation required for final hearing

Family Law Act 1975 (Cth)

APPLICANT: T

RESPONDENT: B

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 755 of 2005

DATE DELIVERED: 13 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P.A. Marchetti

SOLICITOR FOR THE APPLICANT: Quintessential Lawyers

COUNSEL FOR THE RESPONDENT: Ms M.E. Agresta

SOLICITOR FOR THE RESPONDENT: Robert Halliday & Associates

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr I.N. Brewer

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Victoria Legal Aid

Orders

1. I propose to make orders in terms of the minutes which I mark as exhibit A.

2. Direct that the exhibit remain on the court file.

3. The reasons be transcribed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 755 of 2005

T

Applicant

And

B

Respondent

REASONS FOR JUDGMENT

1. This was to have been the first day of the final hearing of a parenting application involving a little girl by the name of M who is now four years and nearly nine months of age.  These proceedings were initially commenced in July 2005 and one would have expected by now that we would have been able to have a final hearing.

2. Unfortunately, because of the state of not only the evidence but also what the father is about to face, it occurred to me that it was nigh on impossible for me to make any final orders in respect of the child and for that reason the parties have had some discussions and agreed to adjourn the matter.

3. The problem is that the father has not only to face a committal mention hearing on 20 August 2007 arising out of charges on 29 April 2006 but he also has other proceedings to face at the Heidelberg Magistrates Court.  The proceedings arising out of the 29 April 2006 are well set out in the affidavit material but it is most unfortunate that the course of action that has either been taken by the father or by the prosecution has meant that as at today, some 18 or so months later, those proceedings have not been finalised.

4. However, I am told that he may be pleading guilty on that day and the discussions at this stage with the prosecution, and I appreciate that that is not with the judiciary, may mean that no custodial sentence is actually sought.  That does not solve the problem of the other matters which have not been mentioned in any of the affidavit material that they, according to the Independent Children's Lawyer's counsel, revolve around a number of offences of dishonesty and one relating to drug matters.  The father has indicated he is pleading not guilty to all of those and as a result, the Heidelberg hearing just about to come up this week is for a contested mention date to be fixed.  That, of necessity, must mean that it will be some months before his fate is known.  In normal circumstances, one would not have worried too much about that because it is something that could be factored into the equation, but in these circumstances it is difficult because the father has had a number of custodial sentences in the past.

5. On the basis of what has been occurring until now, however, something needed to be done to facilitate the ongoing relationship between the father and the child, and I am told that the existing orders in relation to B House have become inconvenient.  Relationships Australia has a program at N which is about a halfway point between the parties' residence, and inquiries have been made, showing that they could accept the parties, and there is an eight-week waiting time.  In the interim period, the parties will continue to have the supervised arrangements at B House and in the event that even Relationships Australia cannot take up the challenge, then B House will continue under the existing orders.

6. The orders that have been proposed include a number of provisions relating to the ongoing supervision of drug testing which was previously ordered and there are now requirements for the father to provide further information relating to his treatment so that the Independent Children's Lawyer can at least monitor what is going on.

7. It seems in those circumstances impossible for me to make any final decision in relation to the child, notwithstanding the fact that these proceedings are over two years old.  What I have ordered is that the matter come back before me for mention in December at which time I will not only look at when the matter is to be heard but what evidence is to be determined.  The parties have been told that on that day, they will need to produce some indication as to what the issues then are and I will then give some indication as to what evidence I will need from them.

8. Clearly, if the father is in custody at that stage, I do not require him to attend and I have made a plea to all counsel because of the complexities of this matter to request their instructors to make them available.  I will start at 9.30 that day on 10 December 2007 and hopefully everybody comes prepared.  We will be able to get through the matter in about half an hour so that parties can otherwise go about their business and counsel can take other matters.

I certify that the preceding Eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate

Date:  24 September 2007