Vickers and Knott

[2007] FamCA 109

FAMILY COURT OF AUSTRALIA

VICKERS & KNOTT [2007] FamCA 109

FAMILY LAW - INTERIM HEARING – PROCEDURAL ORDERS – POSSIBLE MAGELLAN LISTING

Family Law Act 1975 (Cth)

APPLICANT: MS VICKERS

RESPONDENT: MR KNOTT

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1315 of 2005

DATE DELIVERED: 14 FEBRUARY 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 14 FEBRUARY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR HERBERT

SOLICITOR FOR THE APPLICANT: WATERS TIMMS PTY LTD

COUNSEL FOR THE RESPONDENT: MS MIMMO

SOLICITOR FOR THE RESPONDENT: BERGER KORDOS

INDEPENDENT CHILDREN’S LAWYER COUNSEL: MS WATTS

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: GILLIAN COOTE FAMILY LAW

Orders

1. THAT the further mention of this matter be listed on Friday 16 February 2007 at 9.30 a.m.

2. THAT leave be granted to the Independent Children’s Lawyer to subpoena to Court the relevant file and records of the Department of Human Services or otherwise to obtain from them a statement of their current activity, if any, or previous investigations and complaints in this matter.

3. THAT on or before 4.00 p.m. Thursday 15 February 2007 the solicitors for the wife make, file and thereafter serve any updating affidavit of Mr L and otherwise comply with paragraph 4 of the Order made 18 January 2007, in respect of Mr R at least to the specific identification of any and all such documents, records, tapes and other items to be relied upon in evidence from that witness.

4. THAT on or before 4.00 p.m. Thursday 15 February 2007 the solicitors for the wife, upon instructions, and if the wife intends to rely upon these documents:

   (a)         file a Form 4 Notice of Abuse or Risk of Child Abuse; and

   (b)         file an affidavit of her partner Mr N as to all relevant issues.

5. THAT the costs of and incidental to this hearing this morning, and occupying two hours, be reserved to the further mention date this Friday.

6. THAT the legal practitioners for all parties be granted leave to inspect subpoenaed documents from the O Kindergarten.

7. THAT the extempore reasons for judgment given in this Mention be transcribed, be placed upon the Court file and be made available all parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1315 of 2005

MS VICKERS

Applicant

and

MR KNOTT

Respondent

and

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In the matter of Knott v Vickers, MLF 1315 of 2005, a listing of the proceedings and the issues has been held this morning over approximately one and a half hours.  Mr Herbert of counsel appears for the wife; Ms Mimmo, solicitor, appears for the husband; and Ms Watts, solicitor, is the Independent Children's Lawyer.

2. The wife and her partner have been in court throughout the proceedings.  The husband was not here today, as the matter was listed for mention.  This matter currently is listed before me as a defended matter next Tuesday.  It will almost certainly not be reached and completed next week, given that there are two children's matters, each of three days duration, together with two other matters listed prior to the matter being scheduled for hearing.

3. I am confident in the current state of preparation that this matter is not ready to proceed.  There are any number of issues that are not satisfactorily dealt with in evidence.  There are affidavits filed that are inappropriate or contain evidence that is not properly proved or is inadmissible.  There are many unsatisfactory issues of preparation and evidence before the court, they have been touched upon at length in the past hour and a half. 

4. The allegations recently made by the wife in this case are directed to the husband, and perhaps members of his extended family, and their behaviour and attitude to the child of the marriage, a young girl almost six years of age.  They are largely unsubstantiated.  I propose to make no finding whatsoever on the facts.  I have held this mention to identify issues and to try and understand whether this case has been properly prepared. 

5. I am confused about the allegations made to and the state of investigation from the Department of Human Services.  It would seem that from a subpoena that was issued by the Independent Children's Lawyer in August of 2005 the response from the Department was that there are no records at that date.  Subsequently, the wife has, seemingly, made numerous complaints, including of alleged inappropriate sexual behaviour of the child, to the Department.  There is no active investigation and my current, perhaps incomplete, understanding is there is no current investigation.

6. I have requested the Independent Children's Lawyer to make inquiries of the Dandenong office of the Department and ascertain the current status of their files, if any, and of the recent allegations and of matters of concern that were raised with them and which were, or otherwise were not, the subject of any investigation or scrutiny.  Likewise, there seems to have been no complaint to police. 

7. Very much the tenor of the recent affidavit of the wife filed 15 December 2006 is that the young child, SA, known as A, is showing inappropriate sexual behaviour.  I have discussed paragraph 14 and other paragraphs of that affidavit with counsel. 

8. In that same affidavit the wife subsequently made reference to issues of alleged child pornography, to the extent of the husband's involvement in or about 2002 with viewing nude photographs of young children and other adult sexual issues, including bestiality.  Again I make no finding.  It is surprising, if child pornography was ever an issue, it had not been referred to police, but certainly that does seem to be the case. 

9. I do not currently understand that the wife backs away from any prior allegations and indeed, through her counsel, is desirous of maintaining allegations.  If so, that will be the subject of lengthy cross‑examination, and this case must be prepared on the basis that there has been proper disclosure of evidence that is available; and specifically, in the context of the wife's affidavit, the hard disk is still available, that evidence must be common to all counsel and practitioners, particularly the Independent Children's Lawyer, if it be relevant.  

10. I have indicated to the parties that evidence needs to be before the court.  The role of the court is not that of an investigator; the court is to hear evidence, including cross‑examination, and determine facts and to make findings and then pronounce orders on the basis of evidence before the court.  The evidence must comply with the Rules and proper procedure and parties are entitled to know in advance the issues raised, to understand the evidence, and for professionals - in this case either the appointed child and forensic psychologist, Mr P, or the Department of Human Services or the police or other appropriate professionals - if and where relevant, to comment upon that evidence, such as it may exist. 

11. I carefully do not make any finding as to whether there is evidence or the standard or scrutiny of that evidence and whether it meets any appropriate standard of proof.  Likewise, there are affidavits filed in this case on behalf of the wife by Mr L and Mr R.  These were the subject of an earlier order which I pronounced on 18 January 2007 which has, seemingly, been wholly ignored. 

12. Currently this matter has an estimate of five days as a hearing time, though this morning the solicitor for the husband indicated that it might be contained to four days if there were to be no evidence from the private investigators, who have filed affidavits, and otherwise if there has been proper disclosure of prior documents, tapes, files and the like.  I certainly am of the view that, if the allegations are to be maintained and given the history of this matter as I have read and given the poor relationship of the parties, one to the other, and the ongoing threats to kill that seemingly now are to be developed and corroborated as part of this case, that this matter will take all of five days.

13. The matter is not properly prepared.  The solicitor for the husband has highlighted that his concern is that these current issues and allegations are all about delaying the case and preventing a hearing.  It is impossible for me to determine at a mention and on reading the material whether that is or is not the case.  Fundamentally, it is the best interests and welfare of the child that needs to be paramount. 

14. On a preliminary overview of the material, there does need to be certainty that the professional organisations, and in particular the Department of Human Services, the police and independent psychologist are of an informed position that there is no behaviour or issue that would endanger A.

15. I propose to stand this matter over for mention on Friday at 10 o'clock with a requirement for both parties to be present.  That is a mention; it will not be a hearing, and it will be a limited mention.  In the meantime, I propose to make certain orders which must be complied with by 4.00 p.m. tomorrow.  I regard the preparation of this matter as inadequate, though I say that with the caveat that allegations are seemingly continuing to arise.  It is imperative that the wife and her practitioners have a clear understanding of all of their evidence of their case and how it will be presented to the court so that it can be investigated and responded to by the husband. 

16. It also affords the independent children's lawyer the opportunity to prepare issues for the court that involve the child, particularly where there are such allegations of sexually‑inappropriate activity or behaviour; and, separately, issues of violence and threats to kill - upon which I make no finding other than to record that the wife and her partner have reaffirmed today the existence of such threats relayed to them through the child.  That in itself is wholly inappropriate and puts the child in a very unfair and difficult position.  But again, I remain wholly neutral on all issues.

17. I have indicated to the legal practitioners that I will give consideration as to whether this is appropriately a case for the Magellan defended list and for an order to be made pursuant to section 91B of the Family Law Act. I invite practitioners to consider that and I do expect to have a submission from each of them on Friday morning as to whether that order should be made and whether Department of Human Services would be able to facilitate an investigation of these issues; and if so, in what time frame.

18. This matter was before me on 12 January 2007, at which time I heard evidence from Dr T, an obstetrician and gynaecologist.  The purpose of that evidence was to support the wife's application for an adjournment on the grounds of her current pregnancy.  The wife is due to give birth in mid‑May or thereabouts or this year.  On the basis of that evidence then received the matter was not adjourned; though the reality is that as time passes and the birth becomes more imminent there are practical issues in the period immediately prior to the birth and subsequent to the birth that will touch upon listing requirements for this case.  Again, I make no further finding other than that which is the subject of my orders and extempore reasons for judgment of 12 February 2007.

19. In summary then, this matter needs a careful overview from all legal practitioners and an understanding of what are the allegations, what is the evidence, what can be proved and what is in the interests of this child.  I will make some procedural orders today, and otherwise stand the matter over until Friday. 

20. I am not going to make any order about Mr P at this stage.  I am not going to make any order about police at this stage. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 27 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as VICKERS & KNOTT