VAUGHTON & RANDLE

[2013] FamCA 133

FAMILY COURT OF AUSTRALIA

VAUGHTON & RANDLE [2013] FamCA 133

FAMILY LAW – PRACTICE AND PROCEDURE – where the mother has failed to fully instruct her counsel prior to the hearing of the father’s application for contravention orders – where the mother faces imprisonment if found guilty of the alleged contraventions – orders that the application for contravention orders proceedings be adjourned.

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – where the father’s application for contravention orders was adjourned – best interests – orders for the children to spend time with the father during the adjournment of the father’s application for contravention orders.

Family Law Act 1975 (Cth)

APPLICANT: Mr Vaughton

RESPONDENT: Ms Randle

INDEPENDENT CHILDREN’S LAWYER: Ms Fuda

FILE NUMBER: ADC 3046 of 2010

DATE DELIVERED: 20 February 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McQuade

SOLICITOR FOR THE APPLICANT: Adey Lawyers

COUNSEL FOR THE RESPONDENT: Mr Guest

SOLICITOR FOR THE RESPONDENT: Ian Guest & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Fuda

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of South Australia

Orders

1. The Amended Application in a Case filed by the father on 26 September 2012, the Response to the Application in a Case filed by the mother on 9 October 2012 and both Contravention Applications filed by the father on 26 September 2012 and 11 December 2012 are adjourned to Wednesday 13 March 2013 at 10.00 am before the Honourable Justice Dawe (allowing one day).

1. The time the father spends with the child R is to recommence on Saturday 23 February 2013 and Saturday 9 March 2013 and otherwise in accordance with the existing orders.

1. The mother is required to attend in South Australia for the hearing before the Court in person at the Family Court of Australia, Adelaide Registry, 3 Angas Street, Adelaide on the adjourned date of 13 March 2013.

1. Further consideration of the application for costs by the father and the Independent Children’s Lawyer is adjourned to the 13 March 2013 at 10.00 am before the Honourable Justice Dawe.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vaughton & Randle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3046 of 2010

Mr Vaughton

Applicant

And

Ms Randle

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have serious concerns about the application for the adjournment in the circumstances in which it arises, none of which it would appear to be the fault of the solicitor who has been instructed by the mother at the very last minute to act in relation to these serious matters which deal with the best interests of the young child of the parties.  The mother’s late instructions call into question the mother’s attitude towards these proceedings and, in particular, orders of this Court. 

2. What I have to take into account, however, is, first of all, the significant issues which would be brought into play if the mother was found guilty of contravening an order of the Court without reasonable excuse, bearing in mind the existing orders of Federal Magistrate Lindsay, which would bring about the cancellation of the suspension of one month’s imprisonment for the mother and the possibility that, in view of the previous findings of contraventions, serious penalties would otherwise also apply to the Contravention Applications which I am being asked to hear;  that is, of course, should I find that the mother has contravened the orders without reasonable excuse. 

3. In view of the serious possible outcomes, it is appropriate to give the mother an opportunity to be properly represented, to present her case and to be here in person in Adelaide to give her evidence and be cross-examined in person in Adelaide on the Contravention Applications. 

4. The consideration of the father’s Application in a Case which seeks to bring about a significant change in the child’s circumstances and living arrangements is also a matter in which it would be appropriate for the mother to be properly represented by a lawyer who has had an opportunity to take appropriate instructions and consider all of the background in this matter.  That significant change is put to the Court as being the appropriate order the Court could make for the father to renew his relationship with the child. 

5. It is clear that the matters which have to be considered by the Court in determining any order in relation to a parenting order include whether the child can have the benefit of a meaningful relationship with both of the child’s parents and the need to protect the child from harm. 

6. In considering all of those matters, therefore, I consider it is appropriate, in these circumstances, to adjourn both the Application in a Case and the Response to that Application in a Case and the Contravention Applications filed in September 2012 and December 2012 to a listing before me on 13 March at 10.00 am.  I do that upon noting that the mother has indicated through her counsel that she will comply with the orders of the Court for the father to spend time with the child, as they currently exist, to recommence on Saturday, 2 March and otherwise in accordance with the Court orders.

7. In relation to the orders which I was proposing to make in the notations, I have now had submissions from both the counsel for the father and the Independent Children’s Lawyer that the time spent with the child should recommence on Saturday, 23 February 2013 and also take place again commencing on 9 March 2013.  The issue of costs and securing airfares at short notice is one factor which I obviously take into account, but balance off against that the long period in which the mother has not incurred any cost for transporting the child to South Australia in accordance with the orders, and the benefit to the child of re-establishing a meaningful relationship with the father.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 20 February 2013.

Associate: 

Date:  4 March 2013