TATE & ROBERTS

[2011] FamCA 113

FAMILY COURT OF AUSTRALIA

TATE & ROBERTS [2011] FamCA 113

FAMILY LAW - MAGELLAN – matter not ready to proceed – parties to consider mediation – need for proper management

APPLICANT: Mr Tate

RESPONDENT: Ms Roberts

INDEPENDENT CHILDREN’S LAWYER: Ms M Lonergan

FILE NUMBER: MLC 9607 of 2008

DATE DELIVERED: 17 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 17 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mort

SOLICITOR FOR THE APPLICANT: Rhonda G Wilkinson

COUNSEL FOR THE RESPONDENT: Mr Testart

SOLICITOR FOR THE RESPONDENT: Cinque Oakley Senior

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED THAT:

1.All documents produced pursuant to subpoenae this day or any other prior date be released for inspection and photocopying.

2.This matter be referred to the Magellan Registrar.

3.The independent children’s lawyer and the parties do all acts and things necessary to apply for round table dispute resolution through the Round Table Dispute Management Program conducted by Victoria Legal Aid, NOTING THAT it is not intended that dispute resolution in any way delay judicial determination of the matter.

4.The reasons for decision this day be transcribed and when settled copies be made available to the parties.

AND IT IS NOTED that following this matter being dealt with, but prior to the practitioners leaving Court, the father’s trial affidavit sworn today, 17 February 2011, was located and I have directed that a copy be made and provided to the mother and counsel for the independent children’s lawyer.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9607 of 2008

Mr Tate

Applicant

And

Ms Roberts

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

EX-TEMPORE

1. I will deliver some brief reasons to explain why this matter will not be heard in this sittings notwithstanding that I have been available to hear it since last week.

2. The proceedings concerns N, (“the child”), who is nearly five years of age.  Each parent has an application that the child reside with them.  The parents separated when the child was about 10 months old.  There have been a series of protective concerns raised by the mother.  There was a significant break in any time that the father spent with the child between July and November 2010.  Counsel for the independent children’s lawyer informed me that there were no orders for the child to spend time with the father.  I stood the matter down for further discussion.  When we resumed I was told from the bar table that time recommenced in November 2010 and is now being effected at the rate of about four or five days per fortnight, although counsel for the father relies on an (unsworn) outline of case document in which it is asserted on behalf of the father that on 3 February 2011 the mother said that there would be no further time until “after a hearing.”

3. Today is Thursday of the second week of the three week sittings of the Magellan list, which conclude on 24 February.  It is listed only for compliance.  The Court was in a position to hear this matter last week, but when my Associate contacted the practitioners she was advised (correctly) that the parties were not required to file their trial material until Monday of this week.  It is a pity, because the matter could have been disposed of.  As it happens, the father hasn’t complied with the directions that he file a trial affidavit.  Although one has apparently been prepared, it has not been filed or served.

4. The mother filed a two or three page affidavit which says little and does not seek to incorporate by reference any further or earlier affidavit material. 

5. Apart from a brief meeting with his client today, counsel for the mother, Mr Testart, says he last saw the mother on 26 November 2010.  After that, he sought a conference with his client to discuss the outcome of the assessment by Dr B, whose report was filed with the Court on 31 December 2010.  The conference did not occur, I am told, because of the constraints of funding by Victoria Legal Aid.  In February 2010, Mr Testart was retained to appear at the trial in this sitting and sought a conference.  The conference did not eventuate.  Mr Testart is not available next week.  The brevity of the mother’s affidavit material indicates to me that her case is likely to need some extensive viva voce evidence-in-chief, and the fact that the father has not complied by filing and serving his affidavit indicates to me that she may well have material to answer in his affidavit.  So her oral evidence could be of some duration.  It is likely to be days not hours.

6. On behalf of the father, Mr Mort says that his client does not understand what the mother’s case is.  That was accepted by Mr Testart as being an astute observation.  The report of the family consultant is dated 17 January 2010, but should read 17 January 2011.  The report relates to interviews and assessments of the parties and the child in September 2010.  The report writer, at paragraph 31, records the mother’s firm view that time between the father and the child should not take place.  Then, at paragraph 61, as part of her evaluation, she summarises the mother’s position in the following terms:-

   [The mother] remains clear with respect to her conviction that [the father] has sexually abused [the child].  She maintains that her sole aim is to be protective of him.  [The mother] is aware that she may be contravening current court orders and made the statement that if the Court finds that [the child] has not been sexually abused by [the father], or is ordered to live with him, she would seek, at risk of gaol, to contravene such orders.

7. When the mother’s very brief affidavit of evidence-in-chief was filed, it was accompanied by an amended response in which she seeks orders for shared parental responsibility that the child live with her, and that the father spend time with the child on an apparently unsupervised basis for two out of four weekends, some time mid-week and unspecified times during school holidays and for special occasions.  She also seeks “that the parties ensure that the child always sleeps in his own bed and is bathed alone (with any necessary adult supervision).”  In her brief affidavit sworn on 4 February, she says at paragraph 9:

   I have read the family reports in this matter prepared by [Ms M].  I vigorously oppose the recommendation that [the child] reside with the husband rather than me.  I say that notwithstanding any criticisms of me as a parent due to my alleged “over-protectiveness”, I have always been [the child’s] primary carer and it is in his best interests that [the child] maintains the close bond he has with me as his mother … I understand the importance of [the child] having a father figure in his life.  I wish to encourage their relationship, provided the husband satisfies all appropriate boundaries.  I have set out in paragraph 3 of my amended response, filed 24 January 2011, my proposal for the husband’s time with [the child].

8. On one reading of the current material, such as it is, it appears that the mother accepts that based on the evidence she cannot make out a case in which time between the child and the father would expose the child to an unacceptable risk of abuse, including sexual abuse.  What is less clear is whether she still genuinely believes that the previous abuse of which she has complained frequently occurred, or whether she thinks that the previous abuse of which she complained did not occur.  Those matters are going to weigh heavily in any consideration of her capacity to promote or permit a meaningful relationship between the child and the father into the future and after a time in which the family is not subject to intense scrutiny, or any scrutiny by the Court, as well as her responsibilities in relation to parenting and with particular regard to her facilitation of the relationship since separation. 

9. Mr Mort’s client, the father, is not at Court today.  The mother was late to Court.

10. When matters were listed for this hearing, I specified that each matter should be ready to proceed on 24 hours notice.  Last week, my associate contacted the practitioners for the parties and advised them that I was prepared to take the matter last week.  They were not ready to proceed due to the directions that their material not be filed until this Monday.  I am told by Mr Testart that when the matter was set down there was some doubt as to who would be taking the defended matters.  I do not understand why the parties in this case were permitted to file their material so late, and the matter was placed in the list in a way that it could hardly be heard if it was going to be run.  As it happens, even if the father’s material were filed immediately, I do not see the matter being able to be concluded next week because of the apparent deficiencies in the mother’s affidavit evidence which will need to be cured by viva voce evidence and then, as I have indicated, there must be some scope for her to be able to respond to matters deposed to by the father. 

11. In circumstances where the matter is clearly not ready to proceed, none of the practitioners have any suggestion other than taking it out of the list and referring it to the Magellan Registrar so that it can be listed in a way that it will proceed.  That will include some accommodation being made, if need be, for an interim determination of any time between the child and his father between now and a final hearing.

12. The fact that time between the child and the father has been reinstated without the compulsion of orders of the Court leaves me with the impression that the mother’s position may have changed significantly since she saw the report writer in September 2010.  I queried whether a conference convened by Victoria Legal Aid, pursuant to the Roundtable Dispute Management guidelines, would assist the parties.  Mediation should not delay any judicial determination.  However, Ms Boymal said that her instructing solicitor, Ms Lonergan, would be in a position to seek to arrange that.  The mother, through Mr Testart, says that she would attend, and Mr Mort cannot think of why his client would object, although his client is not here so he cannot ask him. 

13. I will make an order in that regard and otherwise refer it to the Magellan Registrar for proper management.  The parties should advise the Magellan Registrar of whether they are accepted into the RDM process.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 17 February 2011.

Associate: 

Date:  1 March 2011