Theophane and Hunt (ex parte Stay Application)

[2011] FamCA 986

FAMILY COURT OF AUSTRALIA

THEOPHANE & HUNT (ex parte Stay Application) [2011] FamCA 986

FAMILY LAW – CHILDREN – STAY pending appeal – application by father for urgent ex parte hearing pending appeal – application for ex parte expedited hearing dismissed and stay application listed for determination with directions to file affidavit material.

Family Law Act 1975 (Cth)

APPLICANT: Mr Theophane

RESPONDENT: Ms Hunt

INDEPENDENT CHILDREN’S LAWYER: Mrs Susan Gray

FILE NUMBER: CSC 1089 of 2007

DATE DELIVERED: 22 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 20 December 2011 in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Applicant in person

COUNSEL FOR THE RESPONDENT: Ms Reaston

SOLICITOR FOR THE RESPONDENT: O’Reily Stevens Bovey

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Gray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Susan Gray

ORDERS

1. The father’s stay application is listed for determination in a duty list at Cairns Registry at 10.00am on Monday 6 February 2012.

2. The father’s application for the stay application to be heard urgently on an ex parte basis is dismissed.

   IT IS DIRECTED

3. The father file any further affidavit material (having regard to the reasons now published) on or before 4.00pm Wednesday 18 January 2012.

4. The father file an affidavit of Ms HN in accordance with the Rules (should he wish to rely upon that evidence) on or before 4.00pm Wednesday 18 January 2012.

5. The mother and Independent Children’s Lawyer shall file any material in reply on or before 4.00pm 1 February 2012.

6. The father file and serve by 4.00pm 1 February 2012 any notice of grounds of appeal that he may have lodged in relation to the interim orders made 5 December 2011.

IT IS NOTED that publication of this judgment under the pseudonym Theophane & Hunt (ex parte Stay Application) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 1089 of 2007

Mr Theophane

Applicant

And

Ms Hunt

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 13 December 2011 the applicant, Mr Theophane, (“the father”) filed an application for a stay of some of the interim orders made by this Court on 5 December 2011.

2. The father sought orders, pending the stay, that he have the sole parental responsibility for the child X (born September 2006), that the child have supervised time with the mother each alternate weekend from 3.00pm Saturday to 5.00pm Saturday at a Contact Centre and each alternate Sunday between 3.00pm and 5.00pm. 

3. In support of this application for a stay the father relied upon his affidavit sworn 12 December 2011 and filed the following day.

4. In fairness to the father at the time he filed the affidavit he had read the orders but the Reasons for Judgment had not at that time been published.  It may be necessary for him to consider his grounds of appeal in the light of those reasons.

5. The grounds of appeal seem to fall into a number of areas namely:-

   1.That the Court relied on the report of the single expert, Dr G.

   2.That the Court did not have regard to or sufficient regard to the events on … September 2011 and … September 2006.

   3.That the Court did not have proper regard to s 60B of the Family Law Act1975 (Cth).

   4.That the Court did not have sufficient regard to some aspects of the Family Report.

   5.That the Court did not have sufficient regard to the reasons of Federal Magistrate Coker of 2011.

   6.That the Court placed the child at the risk of harm in the care of the mother.

   7.That the Court did not have regard to the father’s submissions.

   8.That there were incorrect findings of fact.

   9.That the Court failed to apply the guidelines in relation to unrepresented litigants, lack of procedural fairness and that the Court did not have sufficient regard to the Family Report.

6. In addition, the father relied upon a letter and affidavit from Ms HN, the Director of S Day Care Centre.  The affidavit appears to contain a hearsay view of a conversation, using somewhat convoluted language.  The letter sets out, apparently on 7 December 2011:-

   At 3.45pm the phone rang the person on the line said they were [the mother] ‘and where was [the child]’ [the father] said ‘I am not sure I should be discussing this with you’.  What [the father] said to her wasn’t for me to hear.  He then started again and spoke to [the father] said she hadn’t been there and if you don’t tell me where she is I will call the police and send them to arrest you.  ‘Please don’t threaten me’ I said.  I tried again to explain and did tell her [the child] had been attending but she didn’t appear to be listening and continued to verbally carry on and I repeated again that she had been here.  She said that she was really worried about where [the child] was I wasn’t co-operating, didn’t I know that there were new court orders.  I attempted to explain again and she continued to verbally abuse me saying that I wasn’t co-operating I wasn’t listening and she would call the police etc.  She continued in this manner and when she didn’t respond, when I tried to talk, I explained I was going to hang up, I didn’t want to listen to this anymore.  I hung up.

   This has happened before on other occasions in the past when she has again introduced herself and demanded information when at the time I didn’t know who she was and was unable to discuss [the child] with her.  She again became verbally threatening.

7. At best there seems to be some form of telephone communication which may or may not have been made by the mother. 

8. On balance, the evidence does not raise issues which, on the facts asserted, would warrant an urgent expedited ex parte hearing as sought by the father.  The concerns raised by the father, with the exception of the telephone call, were the subject of considered reasons published 20 December 2011.  There are no fresh issues of fact, apart from the telephone call, contained in the material.

9. Accordingly, I dismiss the application for an urgent ex parte hearing and the stay application is to be listed for determination in a duty list on 6 February 2012, when I am sitting in the Cairns Registry.  In addition I make directions for parties to file affidavit material, if any, which they wish to rely upon.  Included in those directions should be an affidavit from Ms HN or whoever took the alleged telephone call, in admissible form.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 22 December 2011.

Associate:     

Date:  22 December 2011.